Brandenburgisches Oberlandesgericht; 2020-04-15; 13 UF 162/17
Decision by national courts in the field of European Union law — ECLI:DE:OLGBB:2020:0415.13UF162.17.00
Date: 2020-04-15
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82020DE0415(51)_ENG_SUMJURE
JURE summary
JURE summary
A Japanese citizen (hereinafter the ‘plaintiff’) and her German spouse (hereinafter the ‘defendant’), who were living separately, had a dispute over the parental custody of their sons. The case was dealt with by the Amtsgericht Nauen (hereinafter ‘the Court of First Instance’) and the Brandenburgisches Oberlandesgericht (hereinafter ‘the Court of Appeal’). The plaintiff demanded to be given sole custody as she planned to move with the children to Japan citing the violence, addiction and mental health issues of the defendant. Later, the plaintiff moved to Japan with her sons without any prior notification from the authorities and the defendant.
The defendant was successful in obtaining a return order under the Hague Convention of 25 October 1980 (1). However, the enforcement was not possible due to the failure to serve the decision.
The Court of First Instance decided to transfer the sole custody for the children to the defendant. The plaintiff challenged this decision by lodging an admissible and justified appeal.
The Court of Appeal examined the international jurisdiction of German courts and found that it followed from Article 8 of the new Brussels II Regulation (2) due to the fact that upon the submission of the first petition to the Court of First Instance, the habitual residence of the children was in Germany. In addition, the jurisdiction of the German courts followed from Article 7 of the Hague Convention of 19 October 1996 (3) stipulating that in exercising their jurisdiction, the authorities of the contracting states shall apply their own law.
With regard to German law, in particular Article 1671(1,2) of the BGB (4) and Article 1697(a) of the BGB, as well as several expert opinions, the Court of Appeal concluded that it would serve the interests of the children most if the sole custody was transferred to the plaintiff. The Court of Appeal modified the decision of the Court of First Instance and decided in favour of the plaintiff.
(1) Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.
(2) Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000.
(3) Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children.
(4) Bürgerliches Gesetzbuch (German Civil Code).