OLG Karlsruhe; 2023-07-27; 18 UF 233/22
Decision by national courts in the field of European Union law — ECLI:DE:OLGKARL:2023:0727.18UF233.22.00
Date: 2023-07-27
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82023DE0727(51)_ENG_SUMJURE
JURE summary
JURE summary
At the suggestion of a school, the Amtsgericht Überlingen (hereinafter ‘the Court of First Instance’) initiated custody proceedings against the parents of two school-age children (hereinafter ‘the defendants’) to investigate a possible risk regarding the welfare of the children.
The defendant's family, who had lived in Germany for an extended period of time, reportedly deregistered in Germany in 2015 and stated that they now lived in Switzerland and Hungary. Since the children have not attended school since the beginning of the academic year of 2021/2022, in which in-class teaching resumed following the Covid pandemic, the procedure was initiated. The parents withdrew their children from school and refused any cooperation with the German Educational Authorities.
The Court of First Instance ruled that the parents were obliged to immediately enrol their children in a state-recognized school in Germany in order to comply with compulsory schooling. Since both children were habitually residing in Germany at the time the proceedings were initiated, the court had jurisdiction pursuant to Article 8(1) of the new Brussels II Regulation (1). This was based on the assumption that the defendants' habitual residence was still in Germany, as there was ample evidence to suggest that the family was, in fact, living in their house in Germany, although they attempted to conceal this. For example, during a home visit by the Youth Welfare Office, the house was found to be occupied, and witnesses regularly saw the defendants carrying out everyday activities in the area.
The defendants appealed against this decision to the Oberlandesgericht Karlsruhe (hereinafter ‘the Court of Appeal’), arguing that the family had their habitual residence in Switzerland, where the children were also enrolled in a digital school. In the course of the appeal proceedings, the parents first moved to Austria and then permanently to Switzerland, where they verifiably rented an apartment and officially registered.
The Court of Appeal ruled that the international jurisdiction of German courts, which must also be examined ex officio in the appeal proceedings, no longer applies due to the family's move to Switzerland during the appeal proceedings. According to Article 5 of the Hague Convention on the Protection of Children (2), Swiss courts in fact possess international jurisdiction over measures to protect children. The move to Switzerland, which involved renting an apartment and officially registering the family, is considered permanent and the children therefore have their habitual residence in Switzerland.
The Court of Appeal dismissed the defendant’s appeal 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 cooperation in respect of parental responsibility and measures for the protection of children.