OLG Köln; 2016-12-08; II-25 UF 109/16
Decision by national courts in the field of European Union law — ECLI:DE:OLGK:2016:1208.25UF109.16.00
Date: 2016-12-08
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82016DE1208(51)_ENG_SUMJURE
JURE summary
JURE summary
A person living in Germany (hereinafter ‘the plaintiff’) approached the court seeking a court regulation regarding his rights of contact to his son (hereinafter ‘the son’). The plaintiff was willing to accept a supervised contact (begleiteter Umgang) and the establishment of access custodianship (Umgangspflegschaft).
The mother of the son (hereinafter ‘the defendant’), with whom the plaintiff had not been living, denied the plaintiff any contact to the son. The defendant sought to stay the contact of the plaintiff with the son initially for one year.
The Amtsgericht Köln (hereinafter ‘the Court of First Instance’) ordered that the plaintiff may visit the son on Thursdays under the presence of a supervisor and established a time-limited access custodianship.
The defendant lodged an appeal against this decision with the Oberlandesgericht Köln (hereinafter ‘the Court of Appeal’). The defendant further insisted that the contact be stayed and moved with the son to Poland.
Even though the defendant moved with the son to Poland, the German courts held the international jurisdiction under Article 8(1) of the new Brussels II Regulation (1) due to the fact that the habitual residence in the moment of filing the application is relevant to determine the jurisdiction, this being Germany in this case.
Contrary to the opinion of the defendant, German law was applicable. Under Article 15(1) of 1996 Hague Convention (2), the lex-fori principle was applicable stipulating that ‘in exercising their jurisdiction …, the authorities of the Contracting States shall apply their own law.’
Under Article 1684(4) BGB (3), a decision that restricts the right of contact or its enforcement for a long period or permanently may only be made if otherwise the best interests of the child would be endangered. This was not the case in this dispute. The son barely knew the plaintiff. Firstly, a relationship of trust was yet to be established between the son and the plaintiff. The Court of Appeal concluded that the contact between the plaintiff and the son had to be supervised.
The Court of Appeal changed the judgment of the Court of First Instance and allowed the plaintiff to  have supervised contact with his son at the place of the son’s residence in Poland for two consecutive days once per month.
(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) 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.
(3) Bürgerliches Gesetzbuch (the Civil Code).