Saarländisches Oberlandesgericht Saarbrücken; 2015-08-26; 9 UF 59/15
Decision by national courts in the field of European Union law — ECLI:DE:OLGSL:2015:0826.9UF59.15.0A
Date: 2015-08-26
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82015DE0826(52)_ENG_SUMJURE
JURE summary
JURE summary
A German citizen (hereinafter ‘the plaintiff’) and a citizen of Russia (hereinafter ‘the defendant’) are the parents of a child (hereinafter ‘the child’) who has both German and the Russian citizenship. Until their divorce, the parents lived with the child mostly in Russia, less in Germany. After several confrontations, the marriage was divorced in Russia in February 2015. According to an agreement on the separation and the consequences of divorce concluded in front of a notary, the child was supposed to stay with its father in Germany until the defendant had finished her studies in the USA.
However, the defendant took the child with her to the USA.
The plaintiff applied for a preliminary judgment seeking that the sole parental custody be transferred to him.
The Amtsgericht St. Wendel (hereinafter ‘the Court of First Instance’) decided in favour of the application. In response to the defendant’s application for new decision to be issued, the Court of First Instance upheld the preliminary judgment.
The defendant filed an appeal against this decision with the Saarländisches Oberlandesgericht Saarbrücken (hereinafter ‘the Court of Appeal’), which was successful in that the application of the plaintiff was to be dismissed as inadmissible.
The international jurisdiction of the German courts was not given. The competent courts having the international jurisdiction were the courts of the Russian Federation.
The international jurisdiction regarding the preliminary judgment was subject to the provisions of the Hague Convention on the International Protection of Children (1) and not the new Brussels II Regulation (2), for the Russian Federation, where the child had its habitual residence, is not a EU Member State but a signatory to the said Hague Convention. The new Brussels II Regulation does not take precedence as the child was no longer in Germany upon the application of the preliminary judgment on 1 April 2015. The principle of perpetuatio fori does not apply in cases where the residence has been changed from a contracting state of the new Brussels II Regulation to a non-contracting state thereto, which, however, is a signatory to the above Hague Convention.
Until its return to Russia, the child used to stay in Germany for a maximum of four months and eight days. Even though a social integration has already began, it tends to be usually completed only after spending six months in the country.
The Court of Appeal changed the decisions of the Court of First Instance and dismissed the plaintiff’s application as being inadmissible.
(1) Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children.
(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.