European Union law precludes national authorities being able, without needing to provide justification, to obtain the suspension of a final decision requiring the return of a child, the Court of Justice of the EU (CJEU) ruled on Thursday 16 February (C-638/22 PPU).
Two minor children, born in Ireland to Polish parents, have always resided in that Member State. In 2021, the mother took them on holiday to Poland with the father’s consent. She then informed him that she would stay there permanently with the children. The father took the case to the Polish courts and obtained the return of the children. However, in accordance with Polish law, the Public Prosecutor and the Ombudsman for Children’s Rights obtained a stay of execution of the final court decision ordering the return of the child, which was issued on the basis of the 1980 Hague Convention on the Civil Aspects of International Child Abduction.
Referred to by the Warsaw Court of Appeal, the CJEU interprets the contested provision of Polish law in the light of the ‘Brussels IIa’ Regulation (2201/2033) on jurisdiction and the enforcement of judgments in matrimonial matters and the matters of parental responsibility, which supplements the Hague Convention.
The Court recalls that EU law requires the competent courts of the Member States to adopt a decision on the return of the child within 6 weeks of the referral. In its view, this requirement of efficiency and speed is also imposed on national authorities in the context of the enforcement of such a decision in order to respect the fundamental rights of the child.
According to the European Court, Polish law is likely to undermine the effectiveness of the ‘Brussels IIa’ Regulation, since an initial suspension of 2 months alone exceeds the period within which the return decision must be adopted. Moreover, as the authorities empowered to request suspension do not have to give reasons for their request and the exercise of this power is not subject to judicial review, Polish law does not guarantee that the return of the child to his or her place of habitual residence may only be suspended in specific, exceptional and duly justified cases.
See the judgment (in French): (Original version in French by Mathieu Bion)