OLG Frankfurt; 2018-02-07; 1 UF 266/17
Decision by national courts in the field of European Union law — ECLI:DE:OLGHE:2018:0207.1UF266.17.00
Date: 2018-02-07
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82018DE0207(51)_ENG_SUMJURE
JURE summary
JURE summary
Two parents were fighting over custody of their daughter. The father of the child (hereinafter ‘the plaintiff’), resides in Poland. The mother of the child, (hereinafter ‘the defendant’) moved with her daughter to Germany even though custody proceedings were pending in Poland, where they previously resided.
The plaintiff filed a criminal complaint for child abduction before the Polzan District Court (hereinafter ‘the Court of First Instance in Poland’) under Article 3 of the Convention on International Child Abduction (1). At the same time, he filed an application before the Amtsgericht Frankfurt am Main (hereinafter ‘the Court of First Instance’) seeking the return of the child to Poland. The Court of First Instance granted his request and ordered the return of the child to Poland where his father was staying.
The defendant appealed to the Oberlandesgericht Frankfurt (hereafter ‘the Court of Appeal’) challenging the applicability of Article 3 of the Convention on International Child Abduction on the grounds that the father had not properly exercised his rights of custody before the child's departure from Poland. The defendant also argues that a possible return to Poland would violate Article 13 of the Convention because it would harm the welfare of the child who, moreover, expressed her wish to live in Germany.
The Court of Appeal had to determine whether, in this case, the convention applied in favour of the plaintiff or the defendant, knowing that their interpretations of the facts diverged.
The Court of Appeal recalled the principle set by Article 13(b) of the Convention that the grave risk of particularly serious harm to the child is a ground for refusing his or her return to the State of residence prior to the removal. Nevertheless, in the current case, the Court of Appeal held that there was no serious danger to the interests of the child which would go beyond the inevitable consequences of repatriation. Moreover, the Court of Appeal accepts the application of Article 11(4) of the new Brussels II Regulation (2) and finds that the applicant has taken adequate measures to ensure the protection of the child upon his return to Poland.
The Court of Appeal refused to take into account the opinion of the child, considering that, as the conditions for refusing the return on an exceptional basis were not met, this opinion is not relevant in the present proceedings insofar as it will be taken into account in the custody award proceedings pending before the Court of First Instance in Poland.
As the defendant failed to prove the facts it put forward, the Court of Appeal ruled in favour of the plaintiff and confirmed the order of the Court of First Instance requiring the return of the child to Poland.
(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.