OLG Stuttgart; 2015-03-20; 17 UF 31/15
Decision by national courts in the field of European Union law — ECLI:DE:OLGSTUT:2015:0320.17UF31.15.00
Date: 2015-03-20
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82015DE0320(51)_ENG_SUMJURE
JURE summary
JURE summary
This dispute concerns the determination of the habitual residence of two children of a father (hereinafter ‘the plaintiff’) and a mother (hereinafter ‘the defendant’).
The two children lived with their parents in Germany until the plaintiff decided to settle in Belgium with the aim of exploring possible medical treatments for a child born of another relationship. The defendant consented to a temporary relocation for this specific reason. The defendant also consented in writing to the transfer of parts of her parental authority (specifically authority concerning school, administration and health). A few months later, the defendant returned to Germany with the two children with the assistance of the Belgian police.
The plaintiff obtained a first decision from the Tribunal de Première Instance du Hainaut, Division Charleroi, (hereinafter ‘the Court of First Instance in Hainaut’) which provisionally granted him sole parental custody of the two children.
The plaintiff filled a motion to the Amtsgerichts - Familiengericht - Stuttgart (hereinafter ‘the Court of First Instance in Stuttgart’) requesting the immediate return of the two children to Belgium. The Court of First Instance in Stuttgart rejected the application by its decision of 15 January 2015, case n° 24 F 2375/14, on the grounds that the children had not established their habitual residence in Belgium because of their temporary stay in that country.
The plaintiff appealed against this decision to the Oberlandesgericht Stuttgart Senat für Familiensachen (hereinafter ‘the Court of Appeal’). The Court of Appeal dismissed his application, refuting the application of Article 12(1)(3) of the Hague Convention on the Civil Aspects of International Child Abduction of  October 25, 1980 in conjunction with Article 11 of the new Brussels II Regulation (1) arguing that the children had not acquired habitual residence in Belgium.
On the basis of the German precedents, the Court of Appeal pointed out, inter alia, that the departure to Belgium did not hold a presumption that the children had established a new permanent residence. Moreover, the period of residence in Belgium was shorter than the six-month period required to set a presumption of social integration of the children. Other elements to support the argument that the children’s social integration had not reached the level required to conclude the establishment of a new habitual residence. Among those, the intentional breach of the compulsory education obligation by the plaintiff, the poor family integration to which the children testified joined to the fact that they did not live with the plaintiff, also the nationality of the children, namely German, and their lack of command of the French language.
The Court of Appeal also ruled on the grounds that the decision of the Court of First Instance in Hainaut did not preclude its above-mentioned decision.
(1) 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.