Case number and/or case name
OLG Hamm, 28.6.2012 – II-11 UF 85/12
Details of the court
Germany, Second Instance
Articles referred to by the court
Date of the judgement
27 June 2012
CJEU's case law cited by the court
Summary
The parties argued on the return of their children from Germany to Poland. The father lived in Poland, the mother had moved to Germany with the two children. The father’s claim for an order for the return of his children was granted by the family court. The mother contested this decision and claimed that the daughter seriously refused to return to Poland by menacing to commit suicide.
The court held that the ‘grave risk’ within the meaning of Art 13 (1) (b) of the Hague Convention on Child Abduction is required to be significant, concrete and actual. This was the case if the child was in acute danger of committing suicide. It further applied Art 11 (4) Brussels IIa. The court held that this rule was to be applied with priority. But, according to the court there were no adequate arrangements - such as the immediate specialist mental care - which could have justified a return.
The court correctly applied Art 11 (4) Brussels IIa regarding Art 13 Hague Convention on Child Abduction within the application of. The rule in the Brussels IIa Regulation precedes the Hague Convention on Child Abduction concerning the relation to Poland. It was further reasonable to assume a grave risk which exluded the return of the child.