OLG München; 2016-03-22; 12 UF 1175/15
Decision by national courts in the field of European Union law — ECLI:DE:OLGMUEN:2016:0322.12UF1175.15.0A
Date: 2016-03-22
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82016DE0322(51)_ENG_SUMJURE
JURE summary
JURE summary
A mother of minor child living in the Czech Republic (hereinafter ‘the plaintiff’), which she had with her former husband living in Germany (hereinafter ‘the defendant’), sought the return of the child to the Czech Republic.
The plaintiff claimed that the defendant unlawfully retained the child, who had been living since the divorce with the plaintiff in the Czech Republic, in Germany after the visit of the child.
The Amtsgericht München (hereinafter ‘the Court of First Instance’) ordered the child to be returned to the Czech Republic stating that the defendant had unlawfully retained the child in Germany under Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction and had not substantiated the grounds he had been invoking in order to prevent the return.
The complaint of the defendant against the resolution of the Court of First Instance lodged with the Oberlandesgericht München (hereinafter ‘the Court of Appeal’) was admissible and successful.
The Court of Appeal heard both the child and the defendant. The plaintiff did not appear at the hearing despite having been informed thereof. Contact to the plaintiff could not be established neither by the Czech Central Authority nor through the local youth welfare office.
The habitual residence of the child prior to the journey to Germany was in the Czech Republic. Under Czech law, upon retaining the child, the defendant violated the right to joint custody of the defendant. The application of the plaintiff, filed in a timely manner, should have led, under Article 12(1) of the Hague Convention on the Civil Aspects of International Child Abduction, to the return of the child.
However, the order to return the child may exceptionally not be rendered when preconditions of Article 13 of the Hague Convention on the Civil Aspects of International Child Abduction are met. In addition, provisions of Article 11(4) of the new Brussels II Regulation (2) limit this possibility further. In this case, all preconditions have been met. The plaintiff is an alcoholic, the health condition of the child when staying with her was bad and she had shown to lack interest in these proceedings. The return of the child to the Czech Republic would place the child into an intolerable situation under Article 13(1)(b) of the Hague Convention on the Civil Aspects of International Child Abduction and the interests of the child would have been violated in a grave manner.
Upon the complaint of the defendant, the Court of Appeal annulled the resolution of the Court of First Instance and dismissed the defendant’s application for the return of the child.
(1) Hague 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.