EUPillar BGH, 28.4.2011 – XII ZB 170/11

Summary

The proceeding concerned the application for non-recognition of a Hungarian decision on parental responsibility. The court stated that Art 21 ff applied to the case as the Hungarian court had based its international jurisdiction on Art 8 ff Brussels IIa. This was not declared explicitly by the foreign court. The BGH however found that the grounds of the decision referred to the arbitrary removal of the child which could not establish a new habitual residence. The BGH inferred from this reasoning that the Hungarian court justified its international jurisdiction with Art 10 Brussels IIa. The Court further had to clarify the relation between the Hague Convention on Child Abduction and the proceeding pursuant to Art 21 (3) Brussels IIa. The court held that Art 16 of the Convention did not supersede Art 21 (3) Brussels IIa as the current proceeding did not concern a judgment on the parental responsibility but solely the issue whether a decision on parental responsibility which had already been made could be recognised. Art 16 of the Convention – according to the court – solely prohibited a judgment on the parental responsibility. [See on this issue the note by Schulz, FamRZ 2011, p 1046 f, who states that this argumentation can only be valid if the decision on parental responsibility concerned comes from the state where the child had his previous habitual residence.].