OLG Karlsruhe; 2016-11-03; 2 UF 175/16
Decision by national courts in the field of European Union law — ECLI:DE:OLGKARL:2016:1103.2UF175.16.0A
Date: 2016-11-03
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82016DE1103(51)_ENG_SUMJURE
JURE summary
JURE summary
A mother (hereinafter ‘the plaintiff’) requested the immediate return of her child based on the Hague Convention on Child Abduction (1) in conjunction with the new Brussels II Regulation (2). The plaintiff is married to the father of the child (hereinafter ‘the defendant’) and they are both Bulgarian citizens. They married at the Embassy of Bulgaria in Madrid and lived in Spain. The defendant relocated to Germany to find work. It was disputed between the parties whether the plaintiff and the two children were supposed to also move to Germany. The child travelled with the paternal grandmother from Spain to Germany.
The Amtsgericht Karlsruhe (hereinafter ‘the Court of First Instance’) ordered the child to be returned to Spain as it was not proven that the mother agreed with the change of residency of the child. According to Article 154 and Article 156(1) of the Spanish Civil Code (3), parental custody is shared by both parents. The choices about the child have to be made together, that includes the choice about the child’s residence. In disputes, parents have to address the family court.
The defendant appealed to Oberlandesgericht Karlsruhe (hereinafter ‘the Court of Appeal’) which based its decision on Article 12(1) of The Hague Convention on Child Abduction, that applies based on Article 11 of the new Brussels II Regulation. The Court of Appeal held the same opinion as the Court of First Instance when it came to the agreement regarding the change of child’s residency.
The plaintiff bought a condominium in Spain, which suggest she was not planning to move. This is not changed by the fact that for the flight to Germany only one-way tickets were purchased. However, based on Article 13(1)(a) of The Hague Convention on Child Abduction, the judicial authority of the requested State is not bound to order the return of the child if the person had consented to or subsequently acquiesced in the removal or retention. Such approval can be made also tacitly. A subsequent approval can result from a declaration or from the circumstances – especially the behaviour.
Such subsequent approval of the child’s residence is to be assumed under the facts established here, as the plaintiff has on the oral hearing of the Court of First Instance expressly declared that the child may remain permanently with father in Germany. A witness also described how the child did not want to go to a café with mother at first, while the plaintiff said to him that she did not want to take him with her to Spain, that he could stay here (in Germany).
The Court of Appeal considered it proven that the plaintiff, after the oral hearing at the Court of First Instance clearly, unambiguously, and unconditionally expressed to the defendant that she agreed to the child’s permanent residency with the father in Germany. The fact that in addition to this, papers had to be signed in Spain, cannot limit the declaration of consent.
In view of this authorisation and considering the best interests of the child, the Court of Appeal refrained from ordering the return of the child or its repatriation to Spain.
(1) The 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.
(3) Real Decreto de 24 de julio de 1889, Código Civil (Civil Code).