Oberlandesgericht Karlsruhe ; 2019-06-27; Eltern; 18 WF 105/19
Decision by national courts in the field of European Union law — ECLI:DE:OLGKARL:2019:0627.18WF105.19.00
Date: 2019-06-27
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82019DE0627(51)_ENG_SUMJURE
JURE summary
JURE summary
The case dealt with by the Oberlandesgericht Karlsruhe (hereinafter ‘the Court of Appeal’) concerned the international jurisdiction and the determination of a fine in a case where a child had its habitual residency in another EU Member State.
The subject-matter of the case was a dispute between the mother of a son living in Switzerland (hereinafter ‘the defendant’) and his father living in Germany (hereinafter ‘the plaintiff’). The relationship of the parents ended soon after their son was born. They were not married. The defendant had sole custody rights.
The plaintiff applied on 11 July 2018 that the sole custody be transfer to him. This application was dismissed by the Amtsgericht Freiburg (hereinafter ‘the Court of First Instance’) due to the fact that the son and the defendant had moved to Ireland in mid-June 2018 so that a decision regarding the custody rights was to be made by an Irish court. Based on the application of the plaintiff, the Court of First Instance decided by a further resolution that the plaintiff was to be allowed contact with his son via Skype etc. The defendant was obliged to inform the plaintiff within a month where, when and how an accompanied contact between the plaintiff and his son could take place.
With a letter from 31 January 2019, the plaintiff approached the Court of First Instance seeking that it impose a fine on the defendant, citing that the defendant did not allow the contact by Skype to a sufficient extent and failed to inform him where, when and how an accompanied contact could take place. The defendant opposed the application and contested the international enforcement jurisdiction of the Court of First Instance.
According to the Court of Appeal, Article 99(1) FamFG (1) provides for both the international jurisdiction and the enforcement of decisions regarding rights of access. Due to the fact that the son was a German citizen, the jurisdiction of the German courts followed from Article 99(1)(1) FamFG. As a matter of principle, Article 47(1) of the new Brussels II Regulation (2) left it for the procedural law of the individual Member States to provide for the international jurisdiction within enforcement proceedings.
The Court of Appeal annulled the resolution of the Court of First Instance and referred the case back for a new hearing and decision to the Court of First Instance.
(1) Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit (Act on proceedings in family matters and in matters of non-contentious jurisdiction).
(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.