KG Berlin; 2014-06-20; 3 UF 159/12
Decision by national courts in the field of European Union law — ECLI:DE:KG:2014:0620.3UF159.12.0A
Date: 2014-06-20
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82014DE0620(51)_ENG_SUMJURE
JURE summary
JURE summary
A citizen of the United Arab Emirates (hereinafter ‘the UAE’) and mother of two children (son and daughter) (hereinafter ‘the plaintiff’) requested, after her return to Germany, the exclusion of the children’s contact with the father, who is also a citizen of the UAE (hereinafter ‘the defendant’).
The plaintiff had been granted the sole right of residence for both children by way of a temporary injunction by the Amtsgericht Tempelhof-Kreuzberg (hereinafter ‘the Court of First Instance’) and returned from Germany to the UAE.
By order of the Sharia court, the defendant was entitled there to see the children every Saturday. The children refused to see the defendant due to prior dreadful experiences with him. The plaintiff returned with both children to Germany, where she underwent psychiatric treatment and psychotherapy in Berlin.
Upon the recommendation of an expert, the Court of First Instance excluded the defendant’s contact with the children for one year. In view of the unforeseeable developments at the time of the decision, no decision was taken to reinstate contact.
The order of the Court of First Instance is challenged by the defendant’s appeal to the Kammergericht Berlin (hereinafter ‘the Court of Appeal’). The international jurisdiction of German courts is not given, and German law is not applicable.
The appeal is admissible but is not successful on the merits.
The German courts have international jurisdiction. Since the children possess the German nationality, Article 99(1)(1) FamFG (1) applies.
Due to the change of residence of the children from the UAE to Germany, German law is applicable pursuant to Article 15 of the Hague Convention (2).
The exclusion of the right of access to the children can only be considered if the welfare of the children and their mental and physical development is endangered. This is the case here. On the basis of the expert’s findings, the almost 16-year-old son and 13-year-old daughter independently expressed their will not to see the defendant. In doing so, they acted independently of the plaintiff and were aware of the significance and consequences of their expression of will. This has been carefully verified.
The Court of Appeal ruled out the defendant’s contact with the son until he reached legal age as the son was affected by the defendant’s reckless and unyielding behaviour.
The right of access to the daughter was excluded for one year, during which time it will be examined whether it is possible to arrange contact with the defendant.
(1) Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit (Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction).
(2) Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children.