Oberster Gerichtshof, Urteil vom 11/02/2010 5 Ob 260/09k
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2010:RS0125759
Date: 2010-02-11
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82010AT0211(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
An Austrian court ordered the return to Germany of the applicant's and the respondent's children, who were under the age of 16, according to Article 12(1) of the Hague Convention of 25 October 1980 on Child Abduction. The mother wrongfully removed the couple's four children from joint parental custody. Earlier the Bezirksgericht of Ferlach (AT) had provisionally transferred the right of custody to her. The judgment became final. The father's application for the immediate return of the under-age children to Germany was dismissed. An appeal lodged against this was without success. The applicant lodged an appeal to the Oberste Gerichtshof (AT).
The Oberste Gerichtshof grants the appeal. According to Article 16 of the 1980 Hague Convention, after receiving notice of the abduction of a child in the sense of Article 3, the court may not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice. Proceedings concerning the rights of custody in the State to which the child has been brought must be stayed. In a procedure pursuant to Article 47 of the Regulation (EC) No. 2201/2003 ("Brussels II bis Regulation") for the enforcement of a final return order, which is governed by national law, the provisional grant of rights of custody pursuant to Article 20 Brussels II bis Regulation does not, due to Article 17 of the 1980 Hague Convention, present an impediment. Despite provisional rights of custody being granted to her, the respondent was not free to determine the child's place of residence contrary to the judgment ordering the child's return.