OLG Karlsruhe; 2023-05-26; 5 WF 5/23
Decision by national courts in the field of European Union law — ECLI:DE:OLGKARL:2023:0526.5WF5.23.00
Date: 2023-05-26
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82023DE0526(51)_ENG_SUMJURE
JURE summary
JURE summary
The father (hereinafter ‘the plaintiff’) and the mother (hereinafter ‘the defendant’) are the parents of two children. Following their divorce in Serbia in September 2021, custody of the children was granted to the defendant with the consent of the plaintiff. The family initially resided in Germany, even after the parents separated.
In April 2022, the plaintiff applied to the Amtsgericht Überlingen (hereinafter ‘the Court of First Instance’) for the right of residence to be transferred to him. A guardian ad litem was appointed, but no personal hearing took place.
In September 2022, the defendant moved with the children to Austria to live with her new partner. The plaintiff then applied for an injunction to transfer the children’s residence to him and applied for legal aid for the proceedings. He argued that the move would be detrimental to the children's welfare by removing them from their familiar environment.
The Court of First Instance questioned its international jurisdiction but later served the application on the defendant. The defendant opposed the application, arguing that (i) the German courts lacked jurisdiction because of the children’s new residence, (ii) the urgency requirement for an interim measure was not met, and (iii) the children had already integrated into life in Austria.
In November 2022, the Court of First Instance rejected the plaintiff's application for legal aid on the grounds that it was frivolous. The court reasoned that the matter could be resolved more effectively and cost-efficiently in the ongoing main proceedings.
The plaintiff appealed against the refusal of legal aid, arguing that at the time of the application, his claim had a reasonable prospect of success and was not frivolous.
The Court of First Instance refused to review its decision. The matter was referred to the Oberlandesgericht Karlsruhe (hereinafter ‘the Court of Appeal’).
According to the Court of Appeal, the German courts retained jurisdiction over the custody matter pursuant to Article 8(1) of the new Brussels II Regulation (1), since the main proceedings had been initiated in Germany before the transfer to Austria. That jurisdiction also extended to the interim measures, even though German law required separate proceedings for such measures. The jurisdiction of the Austrian courts would also be excluded under Article 19(2) or Article 20(2) of the new Brussels II Regulation.
Given the urgency of the case and the potential impact on the welfare of the children, the plaintiff’s application was not frivolous. The Court of Appeal emphasised that an interim measure might have been appropriate to prevent a permanent change in the children’s living situation before their integration in Austria became irreversible. The integration of the children in the new place of residence may be achieved within a few weeks or months. In this respect, the immediate prevention of the move is the only promising option for the non-custodial parent.
The Court of Appeal annulled the lower court’s decision and ordered that the case be re-examined, in particular with regard to the plaintiff’s eligibility for legal aid. The decision confirmed that the German courts remained competent despite the children’s relocation, and that interim measures could be sought in parallel with the main 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.