OLG Karlsruhe; 2014-12-16; 2 UF 266/14
Decision by national courts in the field of European Union law — ECLI:DE:OLGKARL:2014:1216.2UF266.14.0A
Date: 2014-12-16
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82014DE1216(51)_ENG_SUMJURE
JURE summary
JURE summary
The case dealt with by the Oberlandesgericht Karlsruhe (hereinafter ‘the Court of Appeal’) concerned international child abduction and the unreasonableness of the return of a child into its home country.
The subject-matter of the case was the dispute between a mother, who grew up in Germany, (hereinafter ‘the defendant’) and a father living in Hungary (hereinafter ‘the plaintiff’). The parents had joint parental responsibility towards their son E. under the laws of Hungary.
On 17 September 2013, the defendant travelled with E. from Hungary to Germany with the aim to live there henceforth. On 12 September 2013, the Amtsgericht Karlsruhe received the plaintiff’s application seeking the return of E. to Hungary. After an oral hearing in the Court of First Instance on 17 October 2014, a short contact between E. and the plaintiff took place in the presence of the defendant. In addition, E. spent the autumn holiday with the plaintiff in B. However, several problems occurred in relation to the return of the child to the defendant. The plaintiff did not hand over the child as planned on Monday 27 October 2014, referring to the order to return the child issued within these proceedings on 23 October 2014 by the Court of First Instance. On Tuesday 28 October 2014, the defendant took E. in the absence of the plaintiff from his flat in B. and returned to Germany. The defendant filed a complaint seeking the plaintiff’s application for the return of the child to be dismissed.
The complaint was successful. The return of E. was prevented by the exceptional situation given under Article 13(1)(b) of the Hague Convention on the Civil Aspects of International Child Abduction (1) which was applicable between Germany and Hungary. After an oral hearing of the child, the Court of Appeal was convinced that E. was suffering heavily from the dispute of his parents. The order regarding the return of the E., however, may be prevented if the return placed E. in an intolerable situation under Article 13(1)(b) of the Hague Convention on the Civil Aspects of International Child Abduction.
In addition, Article 11(4) of the new Brussels II Regulation (2) was not contrary to the dismissal of the return of E. under the Hague Convention on the Civil Aspects of International Child Abduction. According to this provision, the court cannot refuse to return a child on the basis of Article 13b of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return. That such arrangements have been or could be made in Hungary was not evident in this case to any extent.
The Court of Appeal decided to change the decision of the Court of First Instance and to dismiss the application for the return of the child.
(1) Hague 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.