Hanseatisches Oberlandesgericht in Bremen; 2017-06-21; 4 UF 20/17
Decision by national courts in the field of European Union law — ECLI:DE:OLGHB:2017:0621.4UF20.17.0A
Date: 2017-06-21
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82017DE0621(51)_ENG_SUMJURE
JURE summary
JURE summary
The case dealt with by the Hanseatisches Oberlandesgericht in Bremen (hereinafter ‘the Court of Appeal’) concerns the international jurisdiction of the German courts regarding a decision on custody rights if the child has already been returned to the state of its habitual residence. The mother of the child travelled with the child from Mexico, where the child had its habitual residence, to Spain and then to Germany (Bremen), but did not return back. The father of the child applied for the child to be returned under the Hague Convention on the Civil Aspects of International Child Abduction (1). His application was successful, and he took the child over on 5 January 2017 in Bremen. In the meantime, the mother of the child filed an application with the Amtsgericht Bremen (hereinafter ‘the Court of First Instance’) seeking, among other things, the transfer of the right to determine place of residence in child custody and protection cases (Aufenthaltsbestimmungsrecht). The Court of First Instance dismissed the application as inadmissible as a final decision regarding the return of the child had not been made at that time and for that reason, under 16 of the Hague Convention on the Civil Aspects of International Child Abduction, a decision regarding custody right was not allowed to be made.
The Court of Appeal decided in favour of the mother of the child, annulled the resolution of the Court of First Instance and referred the case back to the Court of First Instance stating that after the takeover of the child on 5 January 2017, the decision on the merits of the case regarding the custody rights was not prevented by Article 16 of the said Hague Convention anymore.
The Court of Appeal examined then the international, local and subject-matter jurisdiction of the Court of First Instance. The international jurisdiction follows from Sec 99(1)(1) FamFG (2) due to the fact that Mexico is neither a contracting party state to one of the possibly applicable conventions nor an EU Member State so that the application of Article 13 of the new Brussels II Regulation (3) was excluded. The local jurisdiction follows from Sec. 1552(3) FamFG based on the perpetuatio fori principle. Upon the filing of the application, the child was in Germany and the parents of the child differed on the matter of the residency of the child. The subject-matter jurisdiction follows from national law. The Court of Appeal found no other grounds for inadmissibility, such as the anticipation of a decision in another proceeding (vorgreifliches Verfahren) or a two-fold pendency, and referred the case back to the Court of First Instance.
(1) Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.
(2) Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit (Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction).
(3) 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 1347/2000.347/2000.