Oberster Gerichtshof, Urteil vom 24/02/2011 6 Ob 27/11f
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2011:RS0126584
Date: 2011-02-24
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82011AT0224(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The parties are the parents of a child. The father is a Greek national, the mother is an Austrian national, and the child holds both Austrian and Greek nationality. After a family trip to Austria, the mother did not return as planned to the family home in Greece. The parties’ marriage was divorced in a final judgment. Upon the application of the father, the Oberste Gerichtshof (AT) ordered the immediate return of the child to Greece. Subsequently, the Local Court of Naxos (GR) provisionally granted the mother right of custody. After several appeals against the two orders issued for the purpose of enforcing the judgment of the Oberste Gerichtshof, the legal dispute came to the Oberste Gerichtshof (AT).
The Oberste Gerichtshof holds that in the present case neither the jurisdiction of the Greek courts with regard to custody rights nor the jurisdiction of the Austrian Oberste Gerichtshof with regard to a return order under Article 11(8), 10(a)(iv) is in doubt. However, by operation of the judgment on custody given by the court of competent jurisdiction in the State of origin, a circumstance has arisen after issue of the return order that has cleared the wrongful retention of the child by the mother from Article 3 of the 1980 Hague Convention, i.e., the violation of the father’s right of custody, and therewith the basis for the return order.
Such a judgment of the State of origin may also be a provisional judgment. The sole condition is that it is binding under the law of the State of origin.