The application related to a child born in Germany on 11 January 2005. Shortly after the birth the parents separated with the child remaining with her mother. In July 2006 the father agreed to the mother taking the child to Lithuania for a two week vacation. The child was not returned. After being awarded custody by a local court in Germany (Amtsgericht Oranienburg) the father applied on 30 October 2006 to the Klaipeda Regional Court (Klaipedos apygardos teismas) (Lithuania) for the return of his daughter to Germany, relying on the 1980 Hague Convention and the Regulation.
That court dismissed the application by a decision of 22 December 2006. The non-return order was transmitted to the German Central Authority by the father’s lawyer, and that authority itself forwarded the decision to the Amtsgericht Oranienburg. Subsequently, the Lithuanian Central Authority sent a translation in German.
On 15 March 2007 the Lietuvos apeliacinis teismas ordered that the child be returned to Germany. In April 2007 the Klaipedos apygardos teismas made an order suspending the enforcement of the appellate decision but this order was in turn set aside. On 4 June 2007 and 13 June 2007 respectively, the mother and the Head of the Public Prosecution Service of the Republic of Lithuania applied to the Klaipedos apygardos teismas to have the proceedings reopened, relying on new circumstances and the interest of the child in accordance with the first paragraph of Article 13 of the 1980 Hague Convention.
On 19 June 2007 the applications were dismissed on the ground that jurisdiction lay with the German courts. The mother appealed, but the Lietuvos apeliacinis teismas upheld the decision by a decision of 27 August 2007. Both decisions were though quashed by the Lietuvos Aukšciausiasis Teismas on 7 January 2008, which referred the applications back to the Klaipedos apygardos teismas. On 21 March 2008 the Klaipedos apygardos teismas again dismissed the applications for a reopening.
That decision was upheld by the Lietuvos apeliacinis teismas on 30 April 2008. However, the Lietuvos Aukšciausiasis Teismas decided, on 26 May 2008, to adjudicate in cassation on those decisions and suspended the enforcement of the decision of 15 March 2007 requiring the return of the child to Germany pending its decision on the substance of the case.
Meanwhile, on 20 June 2007, the Amtsgericht Oranienburg granted the divorce of the parents and awarded permanent custody to the father. Taking into consideration the non-return order of 22 December 2006 the court ordered the mother to send the child back to Germany and to leave her in the custody of the father. On 20 February 2008, the Brandenburgisches Oberlandesgericht dismissed an appeal by the mother.
The mother then lodged an application before the Lietuvos apeliacinis teismas for non recognition of the judgment of the Amtsgericht Oranienburg of 20 June 2007, in so far as it had awarded custody of the child to the father and ordered her to return the child to the father and to leave her in his custody. On 14 September 2007, the Lietuvos apeliacinis teismas held the mother’s application to be inadmissible.
The certificate issued by the Amtsgericht Oranienburg pursuant to Article 42 of the Regulation stated that all the conditions necessary had been satisfied. The mother then lodged an appeal on a point of law before the Lietuvos Aukšciausiasis Teismas to have that order set aside and a fresh decision adopted granting her application for non recognition of the judgment of the Amtsgericht Oranienburg. In these circumstances the Lietuvos Aukšciausiasis Teismas decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
“1. Can an interested party within the meaning of Article 21 of [the Regulation] apply for non-recognition of a judicial decision if no application has been submitted for recognition of that decision?
2. If the answer to Question 1 is in the affirmative: how is a national court, when examining an application for non-recognition of a decision brought by a person against whom that decision is to be enforced, to apply Article 31(1) of [the Regulation], which states that “… [n]either the person against whom enforcement is sought, nor the child shall, at this stage of the proceedings, be entitled to make any submissions on the application”?
3. Is the national court which has received an application by the holder of parental responsibility for non-recognition of that part of the decision of the court of the Member State of origin requiring the child staying with that person to be returned to the State of origin, and in respect of which the certificate provided for in Article 42 of [the Regulation] has been issued, required to examine that application on the basis of the provisions of Sections 1 and 2 of Chapter III of [the Regulation], as provided for in Article 40(2) of that regulation?
4. What meaning is to be attached to the condition laid down in Article 21(3) of [the Regulation] (“[w]ithout prejudice to Section 4 of this Chapter”)?
5. Does the adoption of the decision to return the child and the issue of the certificate under Article 42 of [the Regulation] in the court of the Member State of origin, after a court of the Member State in which the child is wrongfully retained has taken a decision that the child be returned to his or her State of origin, comply with the objectives of and procedures under [the Regulation]?
6. Does the prohibition in Article 24 of [the Regulation] of review of the jurisdiction of the court of the Member State of origin mean that, if it is unable to review the jurisdiction of the court of the Member State of origin and cannot identify any other grounds for non-recognition of decisions as set out in Article 23 of [the Regulation], a national court which has received an application for recognition or non-recognition of a decision of a foreign court is obliged to recognise the decision of the court of the Member State of origin ordering the child’s return if the court of the Member State of origin failed to observe the procedures laid down in the Regulation when deciding on the issue of the child’s return?”
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