BGH; 2017-12-20; XII ZB 333/17
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2017:201217BXIIZB333.17.0
Date: 2017-12-20
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82017DE1220(51)_ENG_SUMJURE
JURE summary
JURE summary
A citizen of the Republic of Guinea entered Germany as an unaccompanied child. Local courts declared parental custody to be suspended and ordered guardianship. The case is about the term of the guardianship.
The Landgericht Bochum (hereinafter ‘the Court of First Instance’) stated that the guardianship ended as the person reached the age of 18. The Oberlandesgericht Hamm (hereinafter ‘the Court of Appeal’) rejected the appeal filed by the appointed guardian. It argued that the international jurisdiction of German courts derives from Article 8(1) of new Brussels II Regulation (1) because the relevant person concerned lives in Germany. However, according to Articles 1773 and 1882 of the BGB (2), guardianship ends by reaching the age of 18. The Court also mentioned Article 15(1) of the Hague Convention on the Protection of Children (3), according to which German law should apply too.
The cassation was filed and the Bundesgerichtshof (hereinafter ‘the Supreme Court’) abolished the decision and returned the case to the Court of Appeal.
The Supreme Court argued that the Court of Appeal rightly assumed that the international jurisdiction of German Courts was based on Article 8(1) of the New Brussels II Regulation. However, the appeal decision was influenced by several legal errors. Firstly, the law of the Republic of Guinea must be applied in accordance with Article 24(1) EGBGB (4) in matters of the guardianship of a foreign child. Secondly, Article 2 of Hague Convention on the Protection of Children was not automatically applicable. The extinction of parental responsibility is then determined by law in accordance with Article 16(1) of the Hague Convention on the Protection of Children on the basis of the law of the child’s habitual residence. Thirdly, contrary to the opinion of the Court of Appeal, the provision in Article 12(1) of the Refugee Convention (5) covers the question of the refugee’s majority. It is true that the concept of personal status is not defined in the Convention itself. The Convention is intended to integrate refugees as far as possible and to put them on an equal footing with the inhabitants of the state of residence. This also requires that the question of their majority be assessed according to the law of the country of residence or stay.
The Court of Appeal concluded without sufficient investigation, that under the law of Republic of Guinea, majority is also reached at the age of 18. It based its decision on the notification of the Ministry of Foreign Affairs of the Republic of Guinea – even though, the letter declared, that majority would be reached at the age of 21 years.
A child may, therefore, be also a person who has already reached the age of 18 if he or she is still a minor under the law applicable to that extent. Even if the German court based its international jurisdiction to order a guardianship on Article 8(1) of the new Brussels II Regulation, the hypothetical jurisdiction under Article 5 and 6 of The Hague Convention on the Protection of Children is sufficient for German law to apply.
(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.
(2) Bürgerliches Gesetzbuch (the Civil Code).
(3) 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.
(4) Einführungsgesetz zum Bürgerlichen Gesetzbuche (Introductory Act to the Civil Code).
(5) Geneva Convention of 1951 and Protocol of 1967.