Hanseatisches Oberlandesgericht Hamburg; 2014-06-25; 12 UF 111/13
Decision by national courts in the field of European Union law — ECLI:DE:OLGHH:2014:0625.12UF111.13.0A
Date: 2014-06-25
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82014DE0625(51)_ENG_SUMJURE
JURE summary
JURE summary
A mother of two children living in Canada (hereinafter ‘the plaintiff’) applied for enforcement measures to return the children to Canada from the care of the father of the child (hereinafter ‘the defendant’).
The enforceable return order of the Amtsgerichts Hamburg (hereinafter ‘the Court of First Instance’) dated 3 May 2013, by which the defendant was obliged to return the children to Canada, serves as the executory title. On the basis of a memorandum between the plaintiff and the defendant, the Hanseatische Oberlandesgericht Hamburg (hereinafter ‘the Court of Appeal’), which previously dismissed the defendant’s appeal against the repatriation order of the Court of First Instance, however, temporarily suspended the enforcement. The parents had agreed that the children would remain with the defendant in Germany until their hearing by the court in Canada.
On 7 March 2014, the plaintiff applied for enforcement of the repatriation order again.
The repatriation order of the Court of First Instance of 3 May 2013 is effective and enforceable because the defendant did not return the children to Canada contrary to the court order. However, enforcement cannot be considered since, in this specific case it, is contrary to the best interests of the child.
Article 13(1)(b) of the Hague Abduction Convention (1) provides that the court is not obliged to order the return of the child if the person opposing the repatriation proves that the return entails a serious risk of physical or psychological harm to the child or otherwise places the child in an intolerable situation.
This is the case here. Decisive are the circumstances at the time of the pending decision, which are primarily assessed in the best interests of the child. On the basis of the personal hearing of the children, the Court of Appeal concluded that they have settled in well in their present family and social environment, which is mainly composed of the defendant and his present wife. They do not want to live with the plaintiff in Canada under any circumstances. Forced repatriation against the will of the children would in any case seriously impair their welfare.
The restriction of Article 13(1)(b) of the Hague Abduction Convention in conjunction with Article 11(4) of the new Brussels II Regulation (2) do not apply in this case as it has not been demonstrated that adequate arrangements have been made to ensure the protection of children after their return.
Almost a year has elapsed between the order to repatriate the children and its fulfilment and the circumstances of the case have changed considerably in the meantime.
The Court of Appeal dismissed the plaintiff’s application for enforcement of the Court of First Instance’s repatriation order.
(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.