OLG Karlsruhe; 2020-04-20; 16 UF 39/19
Decision by national courts in the field of European Union law — ECLI:DE:OLGKARL:2020:0420.16UF39.19.0A
Date: 2020-04-20
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82020DE0420(51)_ENG_SUMJURE
JURE summary
JURE summary
A divorced husband (hereinafter the ‘plaintiff’) applied with the Amtsgericht Baden-Baden (hereinafter ‘the Court of First Instance’) requesting the determination of his rights of access to his son, who was living with the mother (hereinafter the ‘defendant’) since birth.
The plaintiff and the defendant separated during the pregnancy.
The plaintiff lodged an appeal with the Oberlandesgericht Karlsruhe (hereinafter ‘the Court of Appeal’) against the decision of the Court of First Instance providing for the rights of access to his son, demanding their extension. During this time, the defendant moved with their son to Bulgaria to stay there permanently.
Despite an express order of the Court of Appeal, the defendant did not bring the son to the two court hearings with her. Subsequently, based on a criminal complaint made by the defendant regarding the suspicion of sexual abuse of the son by the plaintiff, the plaintiff was apprehended in Bulgaria during his visit. The accusation could not be confirmed, and the plaintiff was released on bail. He has not had any access to the son since then.
The Court of Appeal stayed the proceedings under Article 15(1)(a) of the new Brussels II Regulation (1). The parties were invited to introduce a request before the competent Bulgarian court to determine the rights of access under its jurisdiction. The respective preconditions of the above article of the new Brussels II Regulation were met. The Bulgarian court at the actual residency of the child was better suited to determine the case than the Court of Appeal in Germany. The priority was the well-being of the child. By the proximity to the child, the Bulgarian court brought a real and specific added value to the decision.
Contrary to the opinion of the plaintiff, a personal hearing of the son was not necessary. The more so concerning the still existing abuse accusations and the possible risks which further access or even an extension of rights of access could entail.
(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.