OLG Celle; 2023-02-08; 10 UF 153/22
Decision by national courts in the field of European Union law — ECLI:DE:OLGCE:2023:0208.10UF153.22.00
Date: 2023-02-08
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82023DE0208(52)_ENG_SUMJURE
JURE summary
JURE summary
This case, brought before the Oberlandesgericht Celle (hereinafter ‘the Court of Appeal’), concerns the recognition of a foreign judgment relating to the joint custody of unmarried parents of a minor born in Germany.
The father of the child (hereinafter ‘the defendant’) acknowledged paternity in 2016. After the parents separated in 2018, the minor remained with the mother (hereinafter ‘the plaintiff’), who later moved to Germany without informing the defendant of the new address.
In March 2019, the defendant applied to the French court for joint custody and to determine the minor’s place of residence. Without hearing the minor, the plaintiff or their legal representatives, the French court granted joint custody but allowed the minor to stay with the plaintiff. The decision was not served directly on the plaintiff because her whereabouts were unknown, and after unsuccessful efforts to locate her, it was served on her at her last known address in accordance with Article 659 of the NCPC (1). The defendant located the plaintiff in Germany in September 2021 and served the judgment personally.
By her application to the Amtsgericht Celle (hereinafter ‘the Court of First Instance’), the plaintiff sought a declaration that the French judgment should not be recognised in Germany on the grounds that the child had not been heard and that the plaintiff’s own right to be heard had been infringed under Article 21(3) and Article 23 of the new Brussels II Regulation (2). The Court of First Instance upheld the action on the ground that the minor had not been given the opportunity to be heard by the French court, which was contrary to fundamental principles of German legal procedure.
The defendant appealed to the Court of Appeal, arguing that the French judgment was justified because the plaintiff had concealed her and the child’s whereabouts.
The Court of Appeal confirmed the application of the new Brussels II Regulation to the case. However, although Article 23(b) of the Regulation provides that the judgment shall not be recognised if it has been given without the child having been given an opportunity to be heard, and Article 23(c) provides for the possibility of refusing the recognition if the party was not properly served with the document which instituted the original proceedings, an exception had to be made in this case.
In the present case, the plaintiff deliberately concealed her and the minor’s place of residence and contributed to the situation. Despite reasonable efforts to locate the minor and the plaintiff, their whereabouts remained unknown to the defendant and the French court. As the plaintiff’s address was unknown, the French court correctly served its decision on the last known place of residence in compliance with French law. Therefore, neither the lack of a hearing of the minor nor the manner of service prevents the French judgment from being recognised in Germany.
The Court of Appeal overturned the first-instance decision and ruled that the French judgment should be recognised in Germany.
(1) Nouveau Code de Procédure Civile (French New Code of Civil Procedure).
(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.