GERMAN COURTS HANDLING HAGUE CASE
Germany
has a uniform court structure under which the trial courts and
appellate courts are state courts, and the courts of last resort are
federal. Hague Convention requests are heard in one family court in
each higher appellate court district and each state designates one
family court as the venue over all or several higher appellate court
districts within the state.
Proceedings on Hague Convention requests are supposed to be non-contentious, i.e. , not adversarial, but this author questions whether that is the actual
practice. The judge handles the proceeding and orders whatever measures
and testimony he or she deems necessary. This can lead to serious
problems if the judge is not inclined to grant Hague applications.
It
is advisable for the parents to be represented by counsel. In addition,
the court may on its own initiative appoint counsel for the child, if
there may be conflicting interests between the child and the parent.
The judge may also insist on granting the children a hearing, even if
they are quite young. The family court may involve the Youth Welfare
Office to give information on the social circumstances of the parties.
In addition, the family court may also request an expert opinion of a
psychologist. However, since this might delay the proceeding, it is
supposed to be done only in exceptional cases.
It
is advisable though not required for applicants to attend court
proceedings in person, since a failure to appear may be treated as a
lack of commitment.
It is common in Hague cases in Germany for the children to be examined, even if they are quite young.
Delays
in Hague proceedings have been a major problem in Germany. The German
Implementing Act provided for the family court to decide Convention
requests within 6 weeks. Nevertheless, in one case the Federal Supreme
Court found that the due process guarantees of the German Constitution
were not violated when a proceeding before the family court for the
return of a child lasted 11 months.
Decisions
of the family court can be appealed to the higher appellate court
[Oberlandesgericht], and an appeal usually stays enforcement. New facts
and evidence are admissible on appeal.
The
decision of the appellate court is final and enforceable, and the only
remedy against such a decision could be a constitutional complaint to
the Federal Constitutional Court, alleging the violation of civil
rights through the proceeding or the applied legislation.
Ordinarily
the lodging of a constitutional complaint does not stay the execution
of a final judgment. However, in exceptional cases, the Federal
Constitutional Court may issue an injunction to postpone execution. The
Federal Constitutional Court accepts constitutional complaints only if
they are significant from a constitutional point of view and have a
reasonable chance of succeeding.
