NOTES ON THE ENFORCEMENT OF CHILD ABDUCTION LAW IN GERMANY
- If a German court's return order will usually order the abducting parent to return the child to the claiming parent or other designated agent who then can remove the child to the requesting country.
- If there is no compliance, the court may impose a coercive fine or coercive detention and the costs of the execution proceeding on the person detaining the child. In addition, the court marshal may ask for local police assistance.
- If the child is not found, the court may order the party responsible to bring the child forth to give an explanation under oath as to the child's whereabouts.
- German courts vary in their use of enforcement devices. Some courts issue the necessary measures expeditiously, even including orders to restrain the abducting parent from leaving the country. Other courts are less vigorous. In 2001, the Higher Appellate Court of Stuttgart remanded a case to the court of first instance to issue the procedurally required warnings before coercive measures could be undertaken.
- Decisions on visitation rights are enforced according to the same principles as decisions ordering the return of the child, but the courts will use non-coercive means whenever possible.
- Germany does not extradite a parent for foreign criminal charges of child abduction.
U.S State Department, in its 2005 Report on Compliance with the Hague
Convention on the Civil Aspects of International Child Abduction,
expressed concern about enforcement problems in Germany, stating that:
"Since 2000, Germany has demonstrated strong performance regarding applications for the return of children to the U.S. Despite this, we continue to observe unwillingness on the part of some judges, law enforcement personnel and others within the child welfare system in Germany to vigorously enforce some German orders granting parental access in both Convention and non-Convention access cases. American parents often obtain favorable court judgments regarding access and visitation, but the German courts' decisions can remain unenforced for years. A taking parent can defy an access order with relative impunity. As a result, a number of U.S. parents still face problems obtaining access to and maintaining a positive parent-child relationship with their children who remain in Germany.
In one particularly high-profile access case, the parent living in Germany, a non-German until early 2004 with physical custody of two children, defied valid German court orders permitting visitation by the U.S. parent. The parent in Germany monitored all contacts between the children and other persons and prevented the children from meeting or communicating with the U.S. parent for almost eight years. U.S. officials sought assistance from German officials at all levels. In a breakthrough in early 2004, following years of sustained efforts by the German-U.S. bi-national working group, the Assistant Secretary for Consular Affairs, and the U.S. Ambassador to Germany, local authorities temporarily removed the children from the foreign parent's care and have assisted in reacquainting the children with the U.S. parent after their prolonged separation. In December 2004 the foreign parent was again able to thwart German officials by removing the children from a court-ordered group home and again curtail access by the U.S. parent. The court order removing the children from the foreign parent's custody was later temporarily suspended, and they remain in her care. German and American officials continue to cooperate toward a resolution of this vexing case."
Unfortunately, the behavior of German courts in recent cases indicates that the General Accounting Office was far too optimistic in its conclusion that Germany was improving.