CASE OF ŠNEERSONE AND KAMPANELLA v. ITALY
Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 8;No violation of Art. 8;Remainder inadmissible;Non-pecuniary damage - award
András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque
6. The applicants were born in 1973 and 2002 respectively and live in Rīga. 7. In 2002 Marko was born to the first applicant in Italy. His father was an Italian national, who was never married to the first applicant but who has never disputed his paternity of Marko. In 2003 Marko’s parents separated and the applicants moved to a separate residence in Cerveteri, Italy. The applicants allege that ever since Marko’s birth he has in practice been in the exclusive care of his mother, and his father’s participation in his upbringing has been minimal. 8. At the request of the first applicant, on 20 September 2004 the Rome Youth Court (Tribunale per i minorenni di Roma) granted custody of Marko to his mother because the ongoing conflict between the parents made joint custody unfeasible. However, the court held that the father had a right to have his son stay at his home on specified days of the week and also whenever the first applicant was travelling outside Rome for a length of time exceeding one week or outside Italy for any length of time. The decision came into force on the day it was adopted. 9. Marko’s father appealed against that decision, requesting that joint custody be granted or that he be granted sole custody and that the first applicant be forbidden to take the child abroad or to change her place of residence without the father’s prior approval. The Youth Section of the Rome Court of Appeal (Corte d’appello di Roma. Sezione per i minorenni) rejected his request in a decision of 1 March 2005, noting, inter alia, that the child was developing well and that it was impossible to ensure his development by granting sole custody to the father. Furthermore, it was noted that the father’s concern that the first applicant might move to Latvia and take their son with her was unfounded because a judge in a guardianship hearing (giudice tutelare, “the guardianship judge”) had previously refused to issue a passport to Marko and also because his mother had strictly adhered to the ruling of the first-instance court and had left the child in his father’s care when travelling to Latvia. 10. On 24 June 2005 the guardianship judge granted an authorisation to issue a passport to Marko. On 11 July 2005 Marko’s father appealed against that decision. On 14 November 2005 the Rome Youth Court rejected Marko’s father’s appeal, because there was no evidence that the first applicant was planning to leave Italy with the child. 11. On 3 February 2006 the Court (Tribunale) of Civitavecchia ruled that Marko’s father had to make child support payments. The decision noted, inter alia, that the father had previously avoided financially supporting his son. Marko’s father failed to make the ordered payments and on 8 April 2006 the first applicant lodged a complaint about this with the Italian police. 12. It appears that because of Marko’s father’s failure to financially support the applicants their only income was money which the first applicant’s mother was sending from Latvia. However, in December of 2005 the first applicant’s mother informed her that she was no longer able to provide financial support. According to the applicants it was for that reason that they had no other choice but to return to Latvia in April of 2006. The applicants indicate that they subsequently continued to return to Italy for brief periods of time. According to the Italian Government, they have never been back. 13. On 7 February 2006 Marko was granted Latvian citizenship, since it was established that his mother’s permanent residence at the time of his birth had been in Latvia. Subsequently, the first applicant registered Marko’s permanent residence in an apartment in Rīga belonging to her. 14. On an unspecified date Marko’s father requested the Rome Youth Court to grant him interim sole custody of Marko and to order his return to Italy. 15. On 5 June 2006 that court issued a decision in which it upheld the father’s request. The decision noted that the first applicant’s actions had been harmful to the child. The court further held that it did not have jurisdiction to order the child’s return to Italy but indicated that Marko had to reside with his father. The decision finally provided that a hearing would be held on 25 October 2006 and that Marko’s father had an obligation to inform the first applicant of the court’s decision before 20 September 2006. 16. The applicants submit that the first applicant was not informed of the hearing that had been scheduled, nor did she receive a summons to it. The applicants further submit that Marko’s father had never requested full custody, but instead had asked the court to re-establish his rights of contact with the child and to order his return to Italy. The first applicant alleges that she only learned about the adopted decision in March of 2007. 17. On 16 January 2007 (by what appears to be a clerical error the document is dated 16 January 2006) the Italian Ministry of Justice, in its capacity as the Central Authority under Article 6 of the Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”), issued a request for Marko to be returned to Italy. 18. After receiving the request, the Latvian Ministry of Child and Family Matters (Bērnu un ģimenes lietu ministrija), which is the Latvian Central Authority within the meaning of the Hague Convention, initiated civil proceedings against the first applicant in accordance with Article 7 of the Hague Convention. The Rīga City Vidzeme District Court, which had been allocated the case, requested the Rīga City Orphans’ Court (Rīgas bāriņtiesa) to evaluate the applicants’ residence and to issue an opinion concerning the possibility of returning Marko to his father in Italy. After visiting the applicants’ residence, by a decision of 20 March 2007 the Orphans’ Court established that the child’s living conditions were beneficial for his growth and development. It further noted that Marko had adjusted to living in his mother’s residence and that she was ensuring his full physical and intellectual development. Accordingly, the Orphans’ Court concluded that the child’s return to Italy would not be compatible with his best interests. 19. That conclusion was also supported by the findings of a psychologist, whose opinion had been requested by the applicants’ lawyer. In a report dated 30 March 2007 the psychologist concluded that severance of contact between Marko and his mother was not to be allowed, in that it could negatively affect the child’s development and could even create neurotic problems and illnesses. 20. By a letter of 6 April 2007, the Italian Central Authority attested to the Latvian Central Authority that if any of the circumstances mentioned in Article 13 (b) of the Hague Convention arose Italy would be able to activate a wide-ranging child protection network which could ensure that Marko and his father received psychological help. 21. On 11 April 2007 the Rīga City Vidzeme District Court issued a decision by which it refused the father’s request to return Marko to Italy. That court based its decision on the Hague Convention and Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility (“the Regulation”). The court held that the removal of Marko had been wrongful within the meaning of the Hague Convention and the Regulation, since it had been carried out without his father’s permission. It was further noted that it was not expedient to hear Marko’s own opinion, since he was four years old at the time and was unable to form an opinion about which of his parents he should live with. 22. The court considered it necessary to assess whether the circumstances provided for in Article 13 (b) of the Hague Convention existed. Its conclusion was that those circumstances existed. It noted the ties between Marko and his mother and the fact that he had settled well in Latvia and considered that his continued residence in Latvia was essential for his development. The Vidzeme District Court found that the provisions of Article 11 (4) of the Regulation had not been fulfilled, because it was financially impossible for the first applicant to follow Marko to Italy if he were returned there. Furthermore, the guarantees provided for by Italy could not ensure that the child would not suffer psychologically and that his mental health would not be prejudiced. Accordingly the court applied Article 13 (b) of the Hague Convention and refused the father’s request. 23. On 24 May 2007 the Rīga Regional Court adopted a final decision, by which it rejected the father’s appeal against the decision of the Vidzeme District Court. In substance the Regional Court agreed with the conclusions of the first-instance court, adding that the guarantees offered by the Italian Central Authority concerning the protection available to Marko after his potential return to Italy were too vague and non-specific. It was also mentioned that Marko’s father had made no effort to establish contact with his son ever since the applicants’ departure from Italy. 24. On 4 June 2007 the first applicant requested the Rīga City Vidzeme District Court to grant her sole custody of Marko. On 8 January 2008 the Rīga Custody Court issued an opinion in which it concluded that granting sole custody of Marko to his mother was in his best interests. The Custody Court indicated among other considerations the fact that Marko’s father had not seen his son since 2006. 25. On 7 August 2007 Marko’s father lodged a request with the Rome Youth Court, which was based on Article 11 (4), (7) and (8) of the Regulation, to issue an immediately executable decision ordering Marko’s return to Italy. 26. On 11 December 2007 the first applicant submitted her observations to that court, in which she acknowledged that she had left Italy because of an ongoing conflict with Marko’s father and because of her difficult financial situation. She noted that Marko’s father had never travelled to see his son in Latvia; however, she stated that the applicants were always available to come to Italy to meet Marko’s father during school holidays. In conclusion, she requested that the court order child support payments in the amount of 700 euros (EUR) per month. 27. In the context of separate proceedings, on 11 January 2008 the Civitavecchia Court made a judgment concerning the first applicant’s request for child support payments and ordered Marko’s father to pay the first applicant EUR 4,800 plus interest, starting from 14 October 2004. 28. By a decision of 21 April 2008 the Rome Youth Court upheld the father’s request. It considered that the only role left to it by Article 11 (4) of the Regulation was to verify whether adequate arrangements had been made to secure the protection of the child from any identified risks within the meaning of Article 13 (b) of the Hague Convention after his or her return. After considering the first applicant’s submissions, the court noted that the father had proposed that Marko would stay with him, while the first applicant would be authorised to use a house in Aranova for periods of fifteen to thirty consecutive days during the first year and subsequently for one summer month every other year (the first applicant would have to cover her own travel expenses and one half of the rent of the house in Aranova), during which time Marko would be staying with his mother, while the father would retain the right to visit him on a daily basis. Marko would be enrolled in a kindergarten which he had attended before his removal from Italy. He would also attend a swimming pool he had used before his departure from Italy. The father furthermore undertook to ensure that the child would receive adequate psychological help and would attend Russian-language classes for Russian children. The court considered such an arrangement adequate to fulfil the requirements of the Regulation and ordered an immediate execution of its decision to return Marko to Italy and to have him reside with his father. The court also pointed out that it would be preferable if the first applicant accompanied Marko on his way to Italy but, should that prove to be impossible, his return would be arranged by the Italian embassy in Latvia. Due to the urgent nature of the case, the decision was pronounced to be immediately executable. 29. On 18 June 2008 (in what appears to be a clerical error, the date indicated in the document is 18 June 2009) the first applicant lodged a request with the Youth Court to suspend the execution of its decision. She argued that Marko had not been heard by the tribunal and that the Youth Court had not taken into consideration the arguments which the Latvian courts had used in their decisions when applying Article 13 of the Hague Convention. 30. On 20 June 2008 the first applicant lodged an appeal against the decision of the Rome Youth Court of 21 April 2008. In her appeal she requested that the execution of that decision be suspended; that the appeal court hear Marko; that there be an order that she retain sole custody of Marko; and that Marko’s father be ordered to pay EUR 700 per month in child support payments. 31. On 22 July 2008 the Rome Youth Court adopted a decision in which it rejected the first applicant’s request to suspend the execution of the decision of 21 April. That court considered that it was not appropriate to question the child, taking into account his young age and the level of maturity. Furthermore, it considered that Article 42 of the Regulation did not oblige it to hear the parties in person. It remarked that all of the decisions taken by the Latvian courts had been duly taken into consideration. Finally, the court upheld the father’s request to issue a return certificate in accordance with Articles 40, 42 and 47 of the Regulation. The certificate was issued on 29 July 2008. 32. On 14 August 2008 the Italian Central Authority sent a letter to the Latvian Central Authority, forwarding the Youth Court’s decision of 22 July 2008 and inviting it to advise the Italian side on “the initiatives that will be taken in order to enforce the return order made by the Youth Court in Rome”. 33. On 27 August 2008 a psychologist issued another report on Marko’s psychological state. The report concluded that the child had developed certain psychological problems in connection with his father’s request to return him to Italy. It further reiterated the conclusion from the earlier report, that Marko had strong emotional ties with his mother, the severance of which was impermissible. 34. On 10 September 2008 the first applicant received information from the Latvian Central Authority about the request made by the Italian Central Authority. The first applicant was informed that Latvia had an obligation to enforce the 21 April 2008 decision of the Rome Youth Court. 35. On 13 February 2009 the first applicant submitted a request to the Rīga City Vidzeme District Court, requesting it to indicate interim measures and not to allow Marko’s return to Italy “until he himself agrees to return to his father in Italy”. Further, she requested the court to require the Rome Court of Appeal and the Rome Youth Court to surrender their competence to the Vidzeme District Court, since that court had already, on 4 June 2007, been allocated a still pending case concerning the granting of sole custody of Marko to his mother, and also because the child’s permanent residence was in Latvia. 36. On 18 February 2009 the Vidzeme District Court adopted a decision in which it decided not to proceed with the first applicant’s request concerning the question of Marko’s custody, since it considered that the first applicant’s appeal against the Rome Youth Court’s decision of 21 April 2008, which was pending at the time before the Rome Court of Appeal, concerned the same subject matter, with the same parties involved. 37. On 21 April 2009 the Rome Court of Appeal adopted a decision concerning the first applicant’s appeal against the Rome Youth Court’s decision of 21 April 2008. The appeal court first of all observed that pursuant to Article 11 (8) of the Regulation (see below, paragraph 45) it had jurisdiction to decide the question of the child’s return to Italy. It then went on to observe that the first-instance court had correctly implemented the procedure set out in Article 11 (7) of the Regulation (see below, paragraph 45), as attested by the reasoned opinion of the European Commission (see below, paragraphs 39-45). The court continued by observing that the decision to grant Marko’s father sole custody had been motivated by the first applicant’s behaviour when she had chosen to take the child to Latvia and by the father’s undertaking to take care of the child in Italy. The Court of Appeal therefore upheld the decision of the Rome Youth Court and ordered that after the child’s return to Italy he be enrolled in a primary school. 38. On 10 July 2009 the bailiff of the Rīga Regional Court charged with the execution of the Rome Youth Court decision of 21 April 2008 invited Marko’s father to provide assistance in the execution of that decision by reestablishing contact with his son. It appears that Marko’s father has not responded to that request in any way. 39. On 15 October 2008 the Republic of Latvia brought an action against Italy before the European Commission in application of Article 227 of the Treaty Establishing the European Community. Latvia alleged, in particular, that the above-described proceedings in Italy (the decision adopted on 21 April 2008 and the issuing of the return certificate in July 2008) did not conform to the Regulation, in that neither of the applicants had been heard by the Rome Youth Court on 21 April 2008, and also that the Rome Youth Court had ignored the decisions of 11 April 2007 of the Rīga City Vidzeme District Court and of 24 May 2007 of the Rīga Regional Court. 40. On 15 January 2009 the Commission issued a reasoned opinion. It held that Italy had violated neither the Regulation nor the “general principles of the Community law”. In so far as is relevant to the case before the Court, the Commission held as follows. 41. At the outset it reiterated, where Latvia was disputing the legality of the actions of an Italian authority with a judicial function, the scope of the Commission’s review was very limited. The Commission could only review matters of procedure, not substance, and it had to respect the decisions made by the Italian courts in the exercise of their discretionary powers. 42. Concerning the argument of the Republic of Latvia that the decision of 21 April 2008 had been adopted without attempting to obtain Marko’s opinion, the Commission stressed that it followed from the Regulation, the United Nations Convention on the Rights of the Child (“the UN Convention”), the Hague Convention and the Charter of Fundamental Rights of the European Union that hearing a child’s opinion with regard to questions concerning that child was a fundamental principle. However, that principle was not absolute. What had to be taken into account was the level of the child’s development. That level was not and could not be defined in any international instruments, therefore the national authorities retained wide discretion in such questions. The Commission held that the Italian Central Authority had used that discretion and indicated in the certificate of return that it had not been necessary for the Italian courts to hear Marko. Therefore, none of the international instruments that had been invoked by Latvia had been breached. 43. Latvia further criticised the fact that the decision of 21 April 2008 had been adopted without duly taking into account the position of the first applicant, and that the decision had been adopted without hearing either of the parties, including the first applicant, who was neither informed of the time of the forthcoming hearing nor invited to take part in it. The Commission noted that the decision of 21 April 2008 had been adopted in written proceedings, without hearing oral submissions of either of the parties, which was fully in conformity with the applicable Italian procedural legislation. The Commission interpreted Article 42 (2) (b) of the Regulation (see below, paragraph 51) in the light of the Court’s case-law (referring in particular to Dombo Beheer B.V. v. the Netherlands, 27 October 1993, § 32, Series A no. 274), and considered that the use of written proceedings was permissible as long as the principle of equality of arms was observed. The Commission observed that the first applicant had been given an opportunity to submit written observations on equal grounds with Marko’s father and thus neither the Regulation nor the UN Convention had been violated. 44. Lastly, Latvia criticised the decision of 21 April 2008 and the related return certificate for ignoring the Latvian authorities’ reasons for refusing to order Marko’s return to Italy. The Commission indicated that its role was not to analyse the substance of the Italian authorities’ decisions – it was limited to appraising the compliance with the procedure which led to the adoption of those decisions with the procedural requirements of the Regulation. Nothing in the Regulation forbade the Italian authorities to come to a conclusion that was opposite to the one reached by the Latvian authorities. Quite to the contrary, the Commission considered that the Regulation gave the country of the child’s residence prior to the abduction “the final say” in ordering the return, even if his or her new country of residence had declined to order the return. In this regard the Commission noted that the Rīga Regional Court, when adopting the decision of 24 May 2007 (see above, paragraph 23), had referred to the Law of Civil Procedure, section 64419 (6) (2) of which permits refusal to return a child if the child is well settled in Latvia and his or her return is not in his or her interests. The Commission questioned the Latvian court’s alleged failure to invoke the “much more binding” Article 13 of the Hague Convention, which in their opinion demonstrated that the Latvian courts had devoted attention to Marko’s situation in Latvia instead of the potential consequences of his return to Italy. In short, the Commission had “not discovered any indications” that life in Italy together with his father would expose Marko to physical or psychological harm or otherwise place him in an intolerable situation. What is more, the Commission considered that the Rome Youth Court in its decision of 21 April 2008 had directly addressed the Rīga Regional Court’s concerns that the measures envisaged for Marko’s protection upon his return to Italy were too vague – the Italian court had set out specific obligations on the father which would allow for balanced development of the child and for him to have contact with both parents. 45. In conclusion the Commission conceded that the decision of 21 April 2008 did not contain a detailed analysis of either the arguments of the first applicant or of those of Marko’s father. However, it considered that the Regulation did not require such an analysis. Therefore, the exact procedure to be followed in that respect was left to the national courts’ discretion. Taking that into account, it was found that neither Latvia nor the Commission could dispute the particular formulation of the Italian court’s decision. 46. The Hague Convention, which has been ratified by Latvia and Italy, provides, in so far as relevant, as follows. “The removal or the retention of a child is to be considered wrongful where – a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.” “The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.” “A Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities. [..]” “Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective State to secure the prompt return of children and to achieve the other objects of this Convention. In particular, either directly or through any intermediary, they shall take all appropriate measures – [..] f) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access; [..]” “The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children. If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be.” “Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.” “Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that – a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.” “The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.” 47. Paragraph 17 of the preamble of the Regulation explains its scope, in so far as it is relevant to this case, as follows: “In cases of wrongful removal or retention of a child, the return of the child should be obtained without delay, and to this end the Hague Convention of 25 October 1980 would continue to apply as complemented by the provisions of this Regulation, in particular Article 11. The courts of the Member State to or in which the child has been wrongfully removed or retained should be able to oppose his or her return in specific, duly justified cases. However, such a decision could be replaced by a subsequent decision by the court of the Member State of habitual residence of the child prior to the wrongful removal or retention. Should that judgment entail the return of the child, the return should take place without any special procedure being required for recognition and enforcement of that judgment in the Member State to or in which the child has been removed or retained.” 48. With regard to jurisdiction in cases of child abduction, the Regulation, in Article 10, provides, in so far as is relevant, as follows: “In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and: ... (b) the child has resided in that other Member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the following conditions is met: (i) within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained; ... (iv) a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention.” 49. Article 11, which is specifically singled out in the preamble, provides as follows: “1. Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of the Hague Convention [..], in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention, paragraphs 2 to 8 shall apply. 2. When applying Articles 12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity. 3. A court to which an application for return of a child is made as mentioned in paragraph 1 shall act expeditiously in proceedings on the application, using the most expeditious procedures available in national law. Without prejudice to the first subparagraph, the court shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged. 4. A court cannot refuse to return a child on the basis of Article 13 (b) of the [..] Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return. 5. A court cannot refuse to return a child unless the person who requested the return of the child has been given an opportunity to be heard. [..] 7. Unless the courts in the Member State where the child was habitually resident immediately before the wrongful removal or retention have already been seized by one of the parties, the court or central authority that receives [a copy of an order on non-return pursuant to Article 13 of the Hague Convention and of the documents relevant to that order] must notify it to the parties and invite them to make submissions to the court, in accordance with national law, within three months of the date of notification so that the court can examine the question of custody of the child. [..] 8. Notwithstanding a judgment of non-return pursuant to Article 13 of the [..] Hague Convention, any subsequent judgment which requires the return of the child issued by a court having jurisdiction under this Regulation shall be enforceable in accordance with Section 4 of Chapter III below in order to secure the return of the child.” 50. Pursuant to Article 40 (1) (b) of the Regulation, its Section 4 applies to “the return of a child entailed by a judgment given pursuant to Article 11 (8)” 51. Article 42 in Section 4 provides the following: “1. The return of a child referred to in Article 40 (1) (b) entailed by an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with paragraph 2. Even if national law does not provide for enforceability by operation of law, notwithstanding any appeal, of a judgment requiring the return of the child mentioned in Article 11 (b) (8), the court of origin may declare the judgment enforceable. 2. The judge of origin who delivered the judgment referred to in Article 40 (1) (b) shall issue the certificate referred to in paragraph 1 only if: (a) the child was given an opportunity to be heard, unless a hearing was considered inappropriate having regard to his or her age or degree of maturity; (b) the parties were given an opportunity to be heard; and (c) the court has taken into account in issuing its judgment the reasons for and evidence underlying the order issued pursuant to Article 13 of the 1980 Hague Convention. [..]” 52. As concerns the enforcement of judgments requiring the return of a child, Article 47 of the Regulation provides the following: “1. The enforcement procedure is governed by the law of the Member State of enforcement. 2. Any judgment delivered by a court of another Member Stat and [..] certified in accordance with [..] Article 42 (1) shall be enforced in the Member State of enforcement in the same conditions as if it had been delivered in that Member State. In particular, a judgment which has been certified according to [..] Article 42 (1) cannot be enforced if it is irreconcilable with a subsequent enforceable judgment.” 53. Lastly, Articles 60 and 62 of the Regulation provide that the Regulation “shall take precedence” over the Hague Convention “in so far as [it concerns] matters governed by this Regulation” and that the Hague Convention continues “to produce effects between the Member States which are party thereto”.