EUPillar OLG Schleswig, 19.5.2008

Summary

The parents argued on the rights of access. The applicant had initiated proceedings in Italy. The Italian Court in Milan had stated that the father had the whole custody of the children. The applicant claimed for the recognition and enforcement of the Italian court’s judgment. The first instance family court dismissed the application. The Higher Regional Court held that a judgment regarding parental responsibility couldn’t be recognised without the child having obtained the opportunity to be heard in the proceedings. This was a violation of substantial principles of German procedural law. It wasn’t sufficient that the child had been summoned via the address of his mother if she refused to travel to the hearing abroad and if it didn’t seem possible that the child could travel there without his mother being involved in the organisation of the journey. The right to be heard is a fundamental principle of German law that is also based in the constitution. In the present case the child was too young to initiate a journey to the hearing by his own. The child’s welfare can only be protected if he or she actually had a real possibility to express his/her opinion regarding the dispute. Therefore, the decision is correct.