Oberlandesgericht Frankfurt; 2019-11-05; Eltern; 8 UF 152/19
Decision by national courts in the field of European Union law — ECLI:DE:OLGHE:2019:1105.8UF152.19.00
Date: 2019-11-05
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82019DE1105(51)_ENG_SUMJURE
JURE summary
JURE summary
A father of a child living in Germany (hereinafter ‘the plaintiff’) initiated proceedings regarding his rights of access to the child.
Earlier, the plaintiff made an agreement with the mother of the child (hereinafter ‘the defendant’) that the defendant could move to land 1 with the child.
The Landgericht Bad Homburg (hereinafter ‘the Court of First Instance’) considered itself to hold international jurisdiction under Article 8(1) of the new Brussels II Regulation (1) stating that the residency of the child in land 1 had not been sufficiently stabilised yet.
The defendant pursued its claim further by lodging an appeal with the Oberlandesgericht Frankfurt am Main (hereinafter ‘the Court of Appeal’) invoking the lack of international jurisdiction of the German courts.
For decisions regarding parental responsibility including rights of access, the courts of the Member State in which the child had its habitual residence upon filing the application were usually competent. The term ‘habitual residence’ was to be interpreted autonomously with regard to the length, circumstances of the move to another Member State, citizenship of the child, circumstances of settling in a new school, the child’s knowledge of the language etc.
At every stage of the proceedings, i.e. also within the appellate proceedings, it was to be examined ex officio whether the court held international jurisdiction or not. In this case, upon initiation of the proceedings, the habitual residence was already in land 1 and the German courts did not hold international jurisdiction.
Even if this opinion were ignored, the child would have established its habitual residence in land 1, which was not an EU Member State but a signatory to the Hague Convention on Parental Responsibility (2), due to the fact that it had spent the last eight months there with the defendant. Article 61(a) of the new Brussels II Regulation provides that Brussels II Regulation prevails over the Hague Convention on Parental Responsibility only if the habitual residence of the child is within a Member State. This was not the case in this dispute.
The Court of Appeal annulled the decision of the Court of First Instance and closed the proceedings.
(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.
(2) Hague Convention on Parental Responsibility and Protection of Children.