One party is the mother of an illegitimate child. First they lived in the house of the mother’s parents until the mother asked for help at the youth welfare office because of family contrasts. Subsequently she changed her and the child’s residences regularly. They stayed in Germany, Austria and Bolivia. Within this period the child stopped attending school.
Following the suggestion of the youth welfare office the family court withdrew the mother’s right to determine the child’s place of residence and other rights connected to custody.
When the child returned from Bolivia it was taken into custody by the youth welfare office in accordance with a decision of the family court. In response to the mother’s complaints the ruling of the family court was annulled.
Now the youth welfare office appeals against this decision.
The court bases the international jurisdiction of German courts on Art. 8 Brussels IIa. It states that it is not relevant whether the child had its habitual residence in Germany or in Austria because in the moment of the court’s ruling the child had its habitual residence in Germany. This circumstance suffices for constituting the international jurisdiction of German courts as long as no other court was invoked.
The German literature agrees that it is possible for the facts constituting the international jurisdiction of a court to emerge only during the proceeding as long as no other court was appealed to.
The only concern of the German literature is that in contrast to Convention of 1961 Concerning the Powers of Authorities and the Law Applicable in Respect of the Protection of Minors or the HCCH the Brussels IIa Regulation follows the principle of perpetuatio fori internationalis. This may lead to an unfortunate mismatch between the competent court and the centre of a child’s life.