Abolition of exequatur for judgments requiring the return of a child in practice: The Povse case

Abstract

Brussels II bis Regulation is the first source of law of EU private international law that introduces abolition of exequatur for specific judgments given pursuant to Article 11(8) which require the return of the child. The goal of the abolition of exequatur is to achieve a rapid return of the child to his country of habitual residence immediately prior to her/his wrongful removal. This goal has to be reached, inter alia, by reducing the jurisdiction of the State of enforcement of certified judgments to questions of enforcement stricto sensu under the national procedural law of that State. On the other hand, the State of origin of the judgments shall be responsible for all matters relating to the merits of the judgments and to the certification of these judgments, this latter substituting the procedure of exequatur in the Member State of enforcement. The Povse case shows that complex facts of a case, proceedings before the respective national courts, the time needed for the interpretation of union law by the Court of EU, and the international law on the protection of human rights questions the goal of abolition of exequatur under this Regulation.