OLG Hamm; 2015-03-26; II-UF 23/15
Decision by national courts in the field of European Union law — ECLI:DE:OLGHAM:2015:0326.11UF23.15.00
Date: 2015-03-26
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82015DE0326(52)_ENG_SUMJURE
JURE summary
JURE summary
The case dealt with by the Oberlandesgericht Hamm (hereinafter ‘the Court of Appeal’) concerned the return of a child which was retained in Germany in violation of a court decision determining custodial rights.
The child was born within a marriage between a French father (hereinafter ‘the plaintiff’) and an Armenian mother (hereinafter ‘the defendant’). The divorce proceedings lasted from 2010 to 2012. After several decisions, joint custody of both parents was ordered with an alternating habitual residence of the child. Shortly afterwards, the defendant moved with the child to Germany. The plaintiff responded with an application filed with Amtsgericht Hamm (hereinafter ‘the Court of First Instance’) seeking the return of the child under Article 8 of the 1980 Hague Convention (1). The proceedings led to a settlement between the parents. The defendant recognised that they had unlawfully moved the child to Germany and accepted that the habitual residence of the child remained in France. The defendant was allowed contact with the child, except on holidays where the child had to stay with the plaintiff. The defendant breached the settlement agreement and had retained the child in Germany since the end of 2013. In the meantime, the French courts awarded the parental custody to the plaintiff and ordered the child to be returned to France by 28 December 2013 at the latest. The respective application seeking the decision to be declared enforceable in Germany was dismissed. The plaintiff filed a new application with the Court of First Instance seeking the return of the child. This application was also dismissed. The plaintiff lodged an appeal against the decision.
The Court of Appeal decided in favour of the appeal and changed the resolution of the Court of First Instance ordering the child to be returned to France. Having regard to case C‑376/14 PPU (2), the Court of Appeal found that the child had no habitual residence in Germany due to the fact that a parent who was unlawfully retaining a child could not rely on a decision made in the first instance during the appellate proceedings. With that, the mechanism of declaring enforceability under the new Brussels II Regulation (3) would have been circumvented.
The fact that the child had been living in Germany for a longer time, attended a school there etc. did not justify the change of residency. In addition, it was not examined whether the wish expressed by the child really corresponded to its genuine will. This examination, however, did not belong to proceedings regarding the return of the child, but to modification proceedings relating to rights of custody.
(1) Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.
(2) Judgment of the Court of Justice of 9 October 2014, C v M, C‑376/14 PPU, ECLI:EU:C:2014:2268.
(3) 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.