PIL instrument(s)

Case number and/or case name

OLG Hamm, 2.2.2011 – II-8 UF 98/10

Details of the court

Germany, Second Instance

Articles referred to by the court

Date of the judgement

01 February 2011

Appeal history

CJEU's case law cited by the court

Summary

The parties argued about a judgment on parental responsibility made by a first instance court in Germany. The mother had appealed against this judgment stating amongst other aspects that German courts did not have the international jurisdiction as the child did not have his habitual residence in Germany. The second instance court rejected the mother’s submission. It held that the child was habitually resident in Germany. It held that the focus of the child’s familiar connections was decisive for the determination of the habitual residence. If the mother cares about the child, her habitual residence is relevant – even though the child’s habitual residence is not generally to be derived from the parents’ habitual residence. Neither the mother’s professional activities in a foreign state nor the fact that the child attended preschool there were sufficient to establish his habitual residence in that state. The court further held that the time the court was seised within Art 16 Brussels IIa was the time when the document initiating proceedings was submitted to the court.