OLG Karlsruhe; 2015-08-26; 18 UF 92/15
Decision by national courts in the field of European Union law — ECLI:DE:OLGKARL:2015:0826.18UF92.15.0A
Date: 2015-08-26
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82015DE0826(51)_ENG_SUMJURE
JURE summary
JURE summary
An unaccompanied refugee from a nation outside the European Union (hereinafter ‘the plaintiff’) filed an application with the Landgericht Freiburg (hereinafter ‘the Court of First Instance’) seeking the appointment of a guardian.
Despite radiological findings, the plaintiff claimed to be of minor age which he tried to prove by a copy of an entry in the birth register. He further claimed that the respective Youth welfare office (Jugendamt), which had taken the plaintiff into custody and later terminated the custody based on the results of a medical opinion which found the plaintiff to be at least 18 years old based on an x-ray of his left arm, had terminated its custody unlawfully.
Having regard to the fact that the defendant refused to undergo further medical examinations in order to clarify his age and after consideration of all circumstances, the Court of First Instance found that the suspension of parental custody could not be established as the necessary preconditions had not been met.
The plaintiff lodged an appeal against this decision of the Court of First Instance with the Oberlandesgericht Karlsruhe (hereinafter ‘the Court of Appeal’). However, this appeal was not justified.
The international jurisdiction of the German courts follows from Article 8(1) of the new Brussels II Regulation (1) as the plaintiff had his habitual residence in Germany when the judgment had been delivered. It is not decisive whether he was a minor or not. According to Article 15(1) of the Hague Convention on Protection of Children (2), the applicable law is the law of Germany.
It is the duty of the Court of First Instance to try to secure any possible and admissible proofs (official duty to investigate the case) regarding the real age of the plaintiff. If it is afterwards impossible to exclude doubts regarding the full legal age of the person in question, the court is supposed to decide in favour of the minor age of that person. However, this was not the case in this dispute.
The copy of an entry in the birth register presented by the plaintiff had not been credible. In addition, not even the German embassy in the plaintiff’s state of origin managed to establish the real age of the plaintiff. The plaintiff did not consent to further physical examinations.
The radiology test of the left hand of the plaintiff showed that the bones corresponded to an age of more than 21 years. According to the laws of the plaintiff’s state of origin, full legal age is achieved upon the 18th year of age.
The Court of Appeal dismissed the complaint of the plaintiff against the decision of the Court of First Instance.
(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) 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.