OLG Celle; 2018-06-04; 10 WF 86/18
Decision by national courts in the field of European Union law — ECLI:DE:OLGCE:2018:0604.10WF86.18.00
Date: 2018-06-04
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82018DE0604(51)_ENG_SUMJURE
JURE summary
JURE summary
The case deals with a preliminary question regarding a collision of laws in relation to joint custody of a child of unmarried persons, which was already existing under the laws of Ghana as the country of their origin. The case was resolved by the Oberlandesgericht Celle (hereinafter ‘the Court of Appeal’).
The subject matter of the case was a dispute between the father (hereinafter ‘the plaintiff’) and the mother (hereinafter ‘the defendant’) of a child. The parents have two children, born in Italy and Germany. Both parents are Ghanaian nationals.
The complaint of the defendant against a resolution adopted by the Amtsgericht Hannover (hereinafter ‘the Court of First Instance’) resulted in the approval of the requested legal aid as well as the assignment of an attorney.
The applicable law in relation to parental responsibility is subject to the Hague Convention on Protection of Children (1). Under Article 15(1) thereof, when exercising their jurisdiction, the authorities of the Contracting States shall apply their own law. Accordingly, as a matter of principle, German laws regarding children’s rights are applicable in the proceedings regarding the custody.
The assessment of the custodial matters relating to the child born in Germany is therefore generally subject to German law. The mother of the child has the right to have the sole parental custody and the creation of a joint parental custody is possible.
In relation to custodial matters regarding the child born in Italy, Article 8 of the new Brussels II Regulation (2) gives rise to the international jurisdiction of Italian courts. As the new Brussels II Regulation does not mention any conflict-of-law provisions, the applicable law is Italian international private law which provides that the applicable law is the law of the country whose citizen the child is. According both to the laws of Italy and Ghana, the citizenships of a child is determined by the citizenship of his/her parents. As both parents are citizens of Ghana in this case, the laws of Ghana are applicable to the preliminary ruling regarding the parental responsibility.
According to the laws of Ghana, as a matter of principal, both parents have joint custody, regardless of the fact whether they are or were married. This joint custody exists by operation of law and therefore, there is no declaration of the parents regarding the custody or a judicial ruling needed for the joint custody to be established. Accordingly, the plaintiff had been entitled to joint custody since the birth of the son. Pursuant to Article 16(3) of the Hague Convention on Protection of Children, this continued to be the case even after the change of the habitual residence of the child to another State.
(1) 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.
(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.