OLG Köln; 2014-10-09; 21 UF 152/14
Decision by national courts in the field of European Union law — ECLI:DE:OLGK:2014:1009.21UF152.14.00
Date: 2014-10-09
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82014DE1009(51)_ENG_SUMJURE
JURE summary
JURE summary
An Italian national (hereinafter ‘the plaintiff’) applied for the repatriation of his illegitimate daughter Mia (hereinafter ‘Mia’), who brought his partner, a German national (hereinafter ‘the defendant’), from Italy to Germany without his consent.
Mia was born in Switzerland and the plaintiff was entered into the birth register of Frauenfeld, Switzerland, as the father of the child. Mia also got her last name. All three moved from Switzerland to Italy, where Mia was enrolled in a kindergarten and a school in Trieste. The defendant took Mia from there to Germany.
The plaintiff's rights to custody were thus infringed.
The defendant considers that the plaintiff's acknowledgement of paternity is not effective outside Switzerland. Nor does Mia have her habitual residence in Italy.
The Amtsgericht Cologne (hereinafter ‘the Court of First Instance’) rejected the application for repatriation.
The plaintiff's appeal against the order of the Court of First Instance at the Oberlandesgericht Cologne (hereinafter ‘the Court of Appeal’) has been successful.
The habitual residence referred to in Articles 3 and 4 of the Hague Convention (1) and in Articles 8 and 10 of the new Brussels II Regulation (2) refers to the place where a certain degree of integration of the child into a social and family environment is evident. The court seised must take into account all the circumstances of the case, such as duration, regularity, circumstances of residence, language skills of the child, etc.
The Court of Appeal considered all the circumstances and concluded that the centre of Mia's life was in Italy. The change of habitual residence from Italy to Germany must be regarded as unlawful removal and retention of the child.
The plaintiff's Swiss child recognition is effective in Italy. Italian private international law recognises both foreign judgements and measures concerning the existence of family relationships.
The Court of Appeal amended the order of the Court of First Instance and ordered the defendant to return the child to Italy under threat of an administrative fine. If the defendant does not comply with her obligations, a bailiff is instructed to take Mia away from the defendant and hand her over to the plaintiff.
(1) Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation 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.