Sofia Povse and Doris Povse v. Austria (Application No 3890/11)

INCADAT legal file Hague parental abduction

Share THIS:

Facebook
Twitter
LinkedIn
Reddit
WhatsApp
Email
Print

Information:

The application related to a child born in December 2006. The parents were not married and lived together in Italy until January 2008. Under Italian law, they shared custody of the child. When the parents separated, the mother took the child from the family home.
Although the father obtained an order preventing the mother from removing the child from the jurisdiction, the mother took the child to Austria some time in February 2008. Proceedings then took place in Italy and in Austria. On 16 April 2008, the father issued return proceedings in the Bezirksgericht Leoben (Austria).
On 23 May 2008, the Tribunale per i Minorenni di Venezia (Italy) lifted the prohibition on the removal of the child from the jurisdiction, gave custody, provisionally, to both parents and specified that the child should remain with the mother in Austria until it gave a final ruling. The father was to have contact with the child and this was to be evaluated by a welfare officer. The latter subsequently reported that the mother did not allow sufficient contact to take place to enable an effective evaluation to be made.
On 3 July, the Bezirksgericht Leoben rejected the father’s return application. This was overturned by the Landesgericht Leoben, on the basis that the father had not been heard, cf. Article 11(5) Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003) Brussels IIa).
On 21 November, the Bezirksgericht Leoben again refused the return application, relying on the decision of 23 May from the Tribunale per i Minorenni di Venezia, which allowed the child to stay provisionally with the mother. On 7 January 2009, this decision was upheld by the Landesgericht Leoben, which held that the child would face a grave risk of psychological harm if returned.
The mother then sought to raise substantive custody proceedings before the Bezirksgericht Judenburg (Austria). On 26 May, relying on Article 15(5) of the Brussels IIa Regulation, the latter court requested the Tribunale per i Minorenni di Venezia to transfer its jurisdiction. Previously, on 9 April 2009, the father had requested the Tribunale per i Minorenni di Venezia to make a return order on the basis of Article 11(8) of the Brussels IIa Regulation.
On 10 July 2009, the Tribunale per i Minorenni di Venezia held that it was still competent in the matter and had not lost its jurisdiction under Article 10 of the Brussels IIa Regulation. It further noted that the mother had not respected the contact plan and that an expert report had not therefore been obtained. The Court also ordered the return of the child and certified this order pursuant to Article 42 of the Brussels IIa Regulation.
On 25 August, the Bezirksgericht Judenburg issued an ex parte order granting the mother provisional custody. The father was not advised of his procedural rights and the order became final on 23 September. On 22 September, the father sought the enforcement of the order of 10 July before the Bezirksgericht Leoben. This was refused on the basis that the child would face a grave risk of harm. The father successfully appealed this refusal before the Landesgericht Leoben.
The mother then seised the Oberster Gerichtshof (Austria) which in turn requested a preliminary ruling on several issues from the Court of Justice of the European Union (CJEU) under the expedited PPU mechanism. The application was allowed to proceed under the latter mechanism on the basis that were there to be further delay in enforcement of the return order the deterioration in the relations between father and child would be worsened and the child would face an increased risk of psychological harm if sent back.
On 1 July 2010, the CJEU issued a preliminary ruling Doris Povse v. Mauro Alpago (C-211/10 PPU) [INCADAT Reference: HC/E/ 1328] confirming the jurisdiction of the Italian courts in the case and the enforceability of the 10 July 2009 judgment of the Tribunale per i Minorenni di Venezia. It found, in particular, that:
“(1) a provisional measure [as the one issued by the Tribunale per i Minorenni di Venezia in 2008] did not constitute a ‘judgment on custody that does not entail the return of the child’ within the meaning of Article 10(b) subparagraph (iv) of the Brussels IIa Regulation and could not be the basis of a transfer of jurisdiction to the courts of the Member State to which the child had been unlawfully removed;
(2) Article 11(8) of the Regulation applied to a judgment of the court with jurisdiction ordering the return of the child, even if it was not preceded by a final judgment of that court relating to rights of custody of the child;
(3) Article 47(2) subparagraph (2) of the Regulation had to be interpreted as meaning that a judgment delivered subsequently by a court of the Member State of enforcement which awarded provisional rights of custody, could not preclude enforcement of a certified judgment delivered previously by the court which had jurisdiction in the Member State of origin and had ordered the return of the child;
(4) enforcement of a certified judgment [ordering the child’s return] could not be refused by the Member State of enforcement because, as a result of a subsequent change of circumstances, it might be seriously detrimental to the best interests of the child. Such a change had to be pleaded before the court which had jurisdiction in the Member State of origin which also had to hear any application to suspend the enforcement of its judgment”.
On 13 July 2010, the Oberster Gerichtshof dismissed the mother’s appeal on points of law. It noted that according to the CJEU’s ruling the Austrian courts’ only task was to take the necessary steps for the enforcement of the return order, without proceeding to any review of the merits of the decision. If the mother asserted that the circumstances had changed since the Tribunale per i Minorenni di Venezia had given its judgment, she had to apply to that court, which would also be competent to grant such an application suspensive effect.
On 31 August 2010, the Tribunale per i Minorenni di Venezia refused to grant a request by the mother for the enforcement of its judgment of 10 July 2009 to be stayed. The father then requested the Bezirksgericht Leoben to order the child’s return to Italy. On 18 January 2011, mother and daughter lodged an application with the European Court of Human Rights (ECrtHR) alleging a breach of their rights in Article 8 of the European Convention on Human Rights (ECHR).
On 17 February 2011, the Bezirksgericht Leoben requested the father to submit evidence that appropriate accommodation would be made available to mother and child as required by the Tribunale per i Minorenni di Venezia judgment of 10 July 2009.
By a judgment of 23 November 2011, the Tribunale per i Minorenni di Venezia withdrew the mother’s custody rights and awarded sole custody of the child to the father. It further ordered the child’s return to Italy, to reside with the father in the Vittorio Veneto community. The Tribunale noted that this would entail a difficult transition for the child but considered that the damage of growing up without her father would weigh even heavier.
The Tribunale considered that the social services would have to give the child pedagogical and linguistic support to settle in her new family and social environment and to maintain contact with her mother. Finally, the Tribunale considered that the child’s return would not entail any grave risk of psychological or physical harm within the meaning of Article 11 of the Brussels IIa Regulation. The mother did not appeal against the judgment.
On 19 March 2012, the father notified the Bezirksgericht Leoben of the Tribunale per i Minorenni di Venezia judgment of 23 November 2011. He also submitted a certificate of enforceability under Article 42 of the Brussels IIa Regulation. On 3 May 2012, the Bezirksgericht Leoben dismissed the father’s request on the basis that he had failed to submit proof that appropriate accommodation would be available for mother and daughter upon their return.
On 15 June 2012, the Landesgericht Leoben allowed the father’s appeal and ordered the mother to hand over the child to the father within fourteen days, noting that enforcement measures would be taken in case of failure to comply.
On 13 September 2012, the Oberster Gerichtshof rejected the mother’s extraordinary appeal on points of law as the case did not raise an important legal issue. It noted that the return order had become final and was enforceable. The first-instance court now had no other task than to define the steps to be taken to enforce the return order.
On 1 October 2012 the Bezirksgericht Leoben held that it was not competent to conduct the enforcement proceedings and transferred the case to the Wiener Neustadt District Court, due to a change of the mother and daughter’s place of residence.
On 4 October 2012, the Bezirksgericht Wiener Neustadt ruled that the best interests of the child required the parents to reach a workable compromise. The Court proposed that a hearing in the presence of both parents be organised in order to seek a constructive solution. On 16 October 2012, the father informed the Bezirksgericht Wiener Neustadt that he was not ready to participate in a hearing with the mother, but wanted to arrange the return of the child with the least traumatic impact possible.
On 23 October 2012, the mother informed the Bezirksgericht that she was ready to take part in the proposed hearing. She also informed the Court that she had appealed against the decision which had transferred the case from the Bezirksgericht Leoben to the Bezirksgericht Wiener Neustadt.
Consequently, the decision establishing the competence of the Bezirksgericht Wiener Neustadt had not become final. Finally, the mother argued that if enforcement measures had to be taken, they must be taken in accordance with Austrian law pursuant to Article 47 of the Brussels IIa Regulation. Austrian law, namely section 110(3) of the Non-Contentious Proceedings Act, allowed the court to refrain from executing an order if the child’s interests were at risk.
In a decision of 20 May 2013, the Bezirksgericht Wiener Neustadt ordered the second applicant to hand over the child to her father by 7 July 2013 and stated that in case of failure to comply coercive measures would be applied.