EUPillar OLG München, 20.10.2014

Summary

The parties argued about the declaration of enforceability that had been given by a German court. The applicant contested the court’s decision. The declaration concerned a Belgian judgment on parental responsibility (determination of the children’s main place of residence). In the judgment the defendant was granted the right to determine. Three months after the Belgium judgment a German court ruled on the parental responsibility. It stated that the mother had the right to determine the children’s main place of residence. The court held that the Belgian judgment couldn’t be declared enforceable. First, the declaration was contrary to Art. 23 (b) Brussels IIbis. In the Belgian proceedings the children at age 5 and 7 hadn’t been given an opportunity to be heard. According to the court the principle of fair hearing which was part of the procedural aspect of ordre public was violated. This issue had to be examined under the scope of German law as it was stated in recital 19 Brussels IIbis. The second reason for the refusal of the declaration of enforcement had to be seen in the existence of another German judgment ruling on the parental responsibility where the applicant was granted the right to determine the children’s residence. The court held that Art. 23 (e) Brussels IIbis applied to the case where there existed contradictory judgments on one aspect of parental responsibility. It wasn’t required that the judgments concerned a decision on the status. The judgment is correct. The fair hearing of children is an essential principle of the public policy of Germany which as the recognizing State had to decide on this issue. Further, it is almost unanimously accepted that Art. 23 (e) Brussels IIbis doesn’t require the existence of judgments on the parental responsibility itself. The judgment can also concern aspects that directly influence the assessment of parental responsibility, such as the determination of the children’s residence.