OLG Zweibrücken; 2016-10-26; 6 UF 41/16
Decision by national courts in the field of European Union law — ECLI:DE:POLGZWE:2016:1026.6UF41.16.0A
Date: 2016-10-26
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82016DE1026(51)_ENG_SUMJURE
JURE summary
JURE summary
The plaintiff applied to the Court of First Instance for the return of his child to Belgium after his abduction by his mother (hereinafter ‘the defendant’) to Germany. His request was rejected. The plaintiff appealed to the Oberlandesgericht Zweibrücken (hereinafter ‘the Court of Appeal’).
The Court of Appeal confirmed that the removal of the child constitutes abduction within the meaning of Article 3(1) of the Child Abduction Convention (1). The parties disputed the application of Article 13 of the same Convention, invoked by the defendant, which provides that a return of the child may be precluded if it would place the child in an unreasonable situation or serious danger. The Court of Appeal dismissed its application and ordered the return of the child to Belgium.
The Court of Appeal ruled that the removal of the child was illegal because it violated the joint custody rights of the parents under Belgian law. The defendant cannot challenge the plaintiff's right of custody without a court judgment. The court ruled that the plaintiff actually exercised his right of custody despite the departure to Germany. Telephone calls and a few visits are sufficient to demonstrate this and the refusal to settle abroad cannot be held against the plaintiff.
The court ruled that a return would not cause any inconveniences other than those associated with a change of residence. The excessive duration of the proceedings, being two years and exceeding the six-week limit laid down by Article 11(4) of the new Brussels II Regulation (2), did not constitute in this case one of the exceptions that could be invoked since the child is still not integrated in Germany.
The qualification of harm to the interests of the child is subject to high requirements. Separation of the child from his mother and siblings would not constitute an infringement in the case at hand. A separation from the mother occurred recently due to the criminal conviction of the defendant. Moreover, the latter retains the possibility of returning to Belgium where she is entitled to assistance. The consequences of a return on the defendant's life are of no importance because as an abducting parent, it is incumbent upon her to bear the consequences of a return.
Moreover, the fact that the custody proceedings were pending in Belgium provides a guarantee that the child's welfare would be ensured by the competent authorities, thus fulfilling the provision that the return of a child cannot be refused on the basis of Article 13(b) of the Convention if it is proved that reasonable measures had been taken to ensure the protection of the child after his or her return.
The fact that the applicant has a criminal record does not in itself constitute a serious risk of physical or psychological harm within the meaning of Article 13(b) of the Convention. Neither of the parties is charged with violence against the child. As for the defendant's accusations of abuse made by the defendant against the plaintiff on his or her own person, no evidence was placed on the record and the Court of Appeal tended to believe that these acusations were false.
(1) Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.
(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.