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11 JUL 2008

ABDUCTION/JURISDICTION: Re Rinau, European Court of Justice

(European Court of Justice; 11 July 2008)

The Lithuanian court at first refused to order the young child's return to Germany, the country of origin; although that decision was later overturned on appeal, enforcement of the decision to return the child to Germany was repeatedly suspended by the Lithuanian court. The German court ordered the mother to return the child to Germany, issuing a certificate under Brussels II Revised, Art 42. The Lithuanian court considering the mother's application for non-enforcement of the German order referred a number of preliminary questions concerning Brussels II Revised to the European Court of Justice.

A certificate for the return of an abducted child, under Brussels II Revised, Art 42, could be issued by the court of origin only if the requested court had issued a judgment of non-return beforehand. However, once a non-return decision had been made by the requested court, and brought to the attention of the court of origin, it was irrelevant, for the purpose of issuing an Art 42 certificate, that the non-return decision had subsequently been suspended, overturned, set aside or had otherwise been replaced by a decision ordering return, in so far as the return of the child had not actually taken place. Given that no doubt had been expressed in the instant case regarding the authenticity of the certificate issued, and that the certificate had been drawn up in accordance with the standard form set out in Annex IV to the Regulation, opposition to the recognition of the decision ordering return was not permitted, and it was for the requested court to declare the enforceability of the certified decision and to allow the immediate return of the child.

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