KG Berlin; 2015-03-02; 3 UF 156/14
Decision by national courts in the field of European Union law — ECLI:DE:KG:2015:0302.3UF156.14.0A
Date: 2015-03-02
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82015DE0302(51)_ENG_SUMJURE
JURE summary
JURE summary
The dispute concerns the custody of the common daughter of a former husband having permanent residence in Germany (hereinafter ‘the plaintiff’) and his former wife having permanent residence in Moscow, Russia (hereinafter ‘the defendant’). Both seek the transfer of parental care to themselves.
The Amtsgericht Tempelhof-Kreuzberg (hereinafter ‘the Court of First Instance’) rejected the applications of both parents as inadmissible. The international jurisdiction of the German courts no longer existed after the defendant had moved to Moscow with her daughter during the ongoing proceedings. The basis for this was the interim order of the Court of First Instance as separate proceedings, which was also confirmed by the order of the Kammergerichts Berlin (hereinafter ‘the Court of Appeal’) and which provisionally transferred the right of residence for the daughter solely to the defendant.
The plaintiff's appeal to the Court of Appeal is directed against that decision. The transfer of the right of residence is only a temporary measure and the transfer of the daughter abroad is not included in that measure. For this reason, the exercise of his custody was rendered de facto impossible.
The appeal is admissible but remains unsuccessful.
The Court of First Instance correctly denied the jurisdiction of German courts under Article 5 of the Hague Convention (1). At the time when the application for custody was filed, the daughter still had her habitual residence in Germany. The Court of First Instance, therefore, had jurisdiction under Article 8(1) of the new Brussels II Regulation (2). However, this competence, which must be examined ex officio at every stage of the proceedings, has subsequently ceased to exist with the departure of the daughter to Moscow.
Since Russia is not a Member State of the European Union, the principle of ‘perpetuatio fori’, which is derived from Article 8(1) (3) of the new Brussels II Regulation, does not apply. This applies only to the Member States of the European Union.
The Hague Convention does not recognise the principle of ‘perpetuatio fori’. The jurisdiction of the court shall be based on the habitual residence of the child at the time of the judgment.
The plaintiff can still exercise his rights of custody. There are many ways to travel to Russia.
The Court of Appeal dismissed the defendant’s appeal against the judgment of the Court of First Instance.
(1) 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
(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.
(3) Accordingly, the court having jurisdiction at the time of the application will retain international jurisdiction even if the child acquires a new habitual residence in a State other than the State addressed during the proceedings.