Important decision
The Constitutional Court upheld the biological mother of the three-year-old boy and overturned the judgments of the general courts on the provisional enforceability of the judgment, which significantly extended the child’s contact with the biological mother’s former partner (the so-called social mother). According to the Constitutional Court, the statutory conditions had not been met and the courts had not given convincing reasons for their conclusions.
According to the Constitutional Court, the general courts may declare a judgment in matters of custody of minors provisionally enforceable only exceptionally and on the basis of specific findings which make it clear that without “immediate” enforceability there is a risk of irreparable or significant harm. Moreover, the grounds must expressly assess whether such a procedure is in the best interests of the child concerned. In the present case, the CJEU criticised the fact that these conditions had not been sufficiently demonstrated or clearly explained.
At the same time, the Constitutional Court emphasised that it was not deciding whether the child’s contact with the social mother should be regulated, but only whether the interim enforcement was (un)justified. The uncertainty as to the actual intensity of the child’s relationship with the intervener, which has yet to be investigated on appeal (including the expert’s report), was also relevant. The contact is therefore temporarily restored to the more limited regime set by the earlier interim measure; the case is remitted for further proceedings before the ordinary courts, which will be bound by the legal opinion of the Constitutional Court
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