Oberster Gerichtshof, Urteil vom 23/11/2010 1 Ob 194/10a
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2010:0010OB00194.10A.1123.000
Date: 2010-11-23
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82010AT1123(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The parties held joint custody over their children. The father was a French national, while the mother as well as the children held French and Austrian nationality. The children lived with their parents at their common place of residence in France. The mother left the common place of residence and travelled to Vienna (AT) with the children. Upon an application of the father for the return of the children pursuant to the Hague Convention of 25 October 1980 on child abduction, the immediate return of both children to France was ordered. The legal matter was brought before the Oberster Gerichtshof (AT).
The Oberster Gerichtshof (AT) dismisses the applicant's appeal. With respect to the EU Member States, Articles 10 and 11 of the Regulation (EC) No. 2201/2003 (Brussels II bis Regulation) supplement the Hague Convention on child abduction. According to Article 11(4) Brussels II bis Regulation, the return of a child may not refused on the basis of Article 13(b) of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return. According to Article 47 Brussels II bis Regulation, the enforcement of return orders issued under the 1980 Hague Convention is governed by the law of the Member State of enforcement along with the modifications required by the aim of the Convention. In addition, within the scope of application of the Brussels II bis Regulation, the aims of the provisions of this Regulation supplementing the 1980 Hague Convention must be considered. Enforcement may only be refused in enforcement proceedings in the exceptional case where, after the return order but before the imposition of enforcement measures, new circumstances arise which, in the event of enforcement, would lead to the welfare of the child being endangered, and which could not be prevented by supporting measures provided for in national law.