EUPillar OLG München, 22.1.2014

Summary

The parties argued about the declaration of enforceability of an order given by a Polish court. It has been ordered that the child should be with the mother as long as the proceedings before the Polish court were still in progress. Therefore, the father was obliged to return the child to the mother. The German first instance court had refused the declaration of enforceability stating that it was doubtful whether there existed a decision on parental responsibility. Further, the application pursuant to 42 (1) Brussels IIbis required a judgment on the return of the child. This according to the first instance court wasn’t given: the Polish court’s decision was of provisional character. The second instance court held that the Polish decision didn’t fall within the scope of application of Art. 42 Brussels IIbis because the return of the child hadn’t been ordered within the meaning of Art. 40 (1) (b) Brussels IIbis. The decision further was no ‘enforceable judgment’ within meaning of Art. 28 Brussels IIbis because it had provisional character and was valid only during the proceedings in Poland. The court also stated that Polish court didn’t base his decision on Art. 8 et seq. Brussels IIbis. The Polish decision however could be based on Art. 20 Brussels IIbis that could be declared enforceable according to the Hague Convention on the protection of children. In German scientific literature it is disputed whether Art. 20 Brussels IIbis offers the possibility to refer to Conventions if a decision can’t be declared enforceable under the Regulation’s scope of application. Some argue that this isn’t possible if the decision was made from a Member State court. In that case the Regulation ruled the issue exhaustively. It is being said that Brussels IIbis precedes the law of conventions if the child is habitually resident in a Member State. In view of this dispute it is not clear whether the judgment can be considered correct.