OLG Karlsruhe; 2015-06-05; 18 UF 265/14
Decision by national courts in the field of European Union law — ECLI:DE:OLGKARL:2015:0605.18UF265.14.0A
Date: 2015-06-05
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82015DE0605(51)_ENG_SUMJURE
JURE summary
JURE summary
A father living in Germany (hereinafter ‘the plaintiff’) applied for the transfer of the right to determine the place of residence (Aufenthaltsbestimmungsrecht) for this 2.5-year-old daughter (hereinafter ‘the daughter’) for which he shared joint parental custody with her mother living in Germany (hereinafter ‘the defendant’).
The plaintiff claimed that the defendant, who was studying in Denmark after their separation, was unlawfully retaining the daughter in Denmark.
The Amtsgericht Konstanz as the court seised (hereinafter ‘the Court of First Instance’) dismissed the application of the plaintiff.
The admissible appeal of the plaintiff lodged with the Oberlandesgericht Karlsruhe (hereinafter ‘the Court of Appeal’) was not justified.
The Court of First Instance was correct to refuse the international jurisdiction of the German courts. Under Article 5(1) and (2) of the Hague Convention on the International Protection of Children (1), authorities competent to decide about the right to determine the place of residence in child custody are the authorities of the contracting state where the child has its habitual residence, i.e. Denmark in this case. The new Brussels II Regulation (2) is not applicable as Denmark is not a Member State within the respective meaning (Article 2(2) of the new Brussels II Regulation).
The habitual residence of a child is not to be determined according to the habitual residence of its parents, but individually. For a 2.5-year-old child, a new habitual residence can be usually assumed after spending approximately 6 months at the new place. This can also be the case within studies of a parent abroad if there are visible indications for this stay to be of a permanent and not only a temporary nature. These preconditions have been met in this case.
The provision of Article 5(2) and Article 7(1) of the Hague Convention on the International Protection of Children does not apply. In addition, it was not important whether the defendant retained the daughter in Denmark unlawfully or not because, given these circumstances, the German court would be lacking the international jurisdiction even in the event of an unlawful retention.
The Court of Appeal dismissed the immediate appeal of the plaintiff against the decision of the Court of First Instance.
(1) 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.
(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.