OLG Celle; 2016-01-18; 12 UF 2/16
Decision by national courts in the field of European Union law — ECLI:DE:OLGCE:2016:0118.12UF2.16.0A
Date: 2016-01-18
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82016DE0118(51)_ENG_SUMJURE
JURE summary
JURE summary
A district (hereinafter ‘the plaintiff’) which had taken custody of a refugee of minor age (hereinafter ‘the child’) who currently does not have any contact to his parents, sought with the Amtsgericht Bückeburg (hereinafter ‘the Court of First Instance’) that the court declare that the parental responsibility had been suspended and appoint a guardian.
The Court of First Instance found without any hearing of the parties involved that the parental responsibility had been suspended and transferred the parental responsibility to the Youth welfare office (Jugendamt) of the district (hereinafter ‘the defendant’) which was appointed to be the guardian.
The plaintiff filed an appeal with the Oberlandesgericht Celle (hereinafter ‘the Court of Appeal’) against this decision. The plaintiff sought that the Court of Appeal annul the decision and appoint as a guardian an attorney, designated by name, this by the means of a preliminary legal protection through a preliminary order. According to the law, volunteers acting in an honorary capacity are to be primarily appointed as guardians.
The admissible appeal was partially successful.
As the child had its habitual residence in Germany, the German court had international jurisdiction under Article 8(1) of the new Brussels II Regulation (1). German law was applicable according to Article 15(1) KSÜ (2).
The Court of First Instance omitted to verify ex officio which person might be suitable to be appointed as guardian. As the defendant had not proposed in its petition any person as the guardian, it would have been appropriate to ask the defendant to share its opinion. In choosing a suitable person, it is always necessary to examine whether a voluntary guardian acting in an honorary capacity is available. If this is not the case, the choice is to be made between a professional guardian, a guardian association or an official guardian, all of which have an equal position.
The issuance of a preliminary order and the appointment of the attorney proposed by the plaintiff as guardian were not justified. There was no urgent need present as the legal representation of the child was secured by the Court of First Instance’s selection of guardian. It is to be further established whether the appointment of the proposed attorney would be beneficial to the child.
The Court of Appeal annulled the resolution of the Court of First Instance and referred the case back for further clarification and a new decision to 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 1347/2000.347/2000.
(2) Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children.