OLG Stuttgart; 2015-03-18; 17 UF 44/15
Decision by national courts in the field of European Union law — ECLI:DE:OLGSTUT:2015:0318.17UF44.15.0A
Date: 2015-03-18
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82015DE0318(51)_ENG_SUMJURE
JURE summary
JURE summary
The case concerned the return of a child born within a relationship between its mother who was a German citizen (hereinafter ‘the defendant’) and the father who was an Italian citizen (hereinafter ‘the plaintiff’).
After their separation, both parents continued to live in Italy. However, the defendant moved later with the child to Germany. The plaintiff did not agree and filed an application with Amtsgericht Stuttgart (hereinafter ‘the Court of First Instance in Stuttgart’) seeking the return of the child to Italy.
The Court of First Instance in Stuttgart decided in favour of the application stating that the preconditions for a return under Article 12(1) first alternative of the 1980 Hague Convention (1) had been met.
Subsequently, the Italian Tribunale di Teramo (hereinafter ‘the Court of First Instance in Teramo’) made a preliminary decision stipulating that both parents had joint custody of the child and jointly determined the habitual residence of the child.
The defendant lodged a complaint against the decision with the Court of First Instance in Stuttgart stating that the Court of First Instance in Teramo entrusted her with the right to determine the child’s place of residence. Therefore, she lodged an appeal with the Oberlandesgericht Stuttgart (hereinafter ‘the Court of Appeal’) seeking that the court annul the decision of the Court of First Instance in Stuttgart and dismiss the plaintiff’s application or alternatively stay the proceedings until the Court of First Instance in Teramo had made a final decision regarding the right to determine the child’s place of residence.
The complaint was successful. Upon the decision of the Court of First Instance in Stuttgart, the preconditions for a return of the child under Article 12(1) and Article 3 of the 1980 Hague Convention and Article 11 of the new Brussels II Regulation (2) had been met and by moving the child to Germany, the defendant violated the plaintiff’s right to joint custody.
However, the order to return the child was contrary to the preliminary enforceable decision of a court of the child’s country of origin which stipulated that the habitual residence of the child was at the place of residence of its mother. A return order would place the child in an intolerable situation under Article 13(1)(b) of the 1980 Hague Convention. Based on the preliminary enforceable decision, the defendant would have been entitled to move the child back to Germany.
The international jurisdiction of the Italian courts followed from Article 10 of the new Brussels II Regulation. Article 11(4) of the new Brussels II Regulation did not prevent the possibility of rejecting the order to return the child.
The preconditions for staying the proceedings under Article 12(3) of the 1980 Hague Convention had not been met. Based on the complaint filed by the defendant, the decision of the Court of First Instance in Stuttgart was changed so as to dismiss the plaintiff’s application.
(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.