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GERMANY
Child Abduction
Germany: Child Abduction, Hague Convention Overview
by Jeremy D. Morley
- Germany ratified the Hague Convention in 1990 and
it entered into effect for Germany later that year.
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Germany has received extensive international
criticism, alleging that German courts were violating their treaty
obligations by failing to return children who had been abducted to
Germany by German nationals. As a result, Germany enacted procedural
reforms in 1999. It is unclear whether these reforms have solved the
problem.
- The Federal Public Prosecutor of the Federal
Court of Justice is designated as Germany's Central Authority for
the Hague Convention. It is required to undertake all necessary
measures to locate children and effect their return to the
requesting country, and to assist in visitation cases. The Central
Authority may communicate with other German and foreign authorities,
file appropriate actions in German courts, represent the claimant
from the requesting state in and out of court and act on its own
initiative to uphold the purposes of the Convention.
- Claimants under the Hague Convention may submit
their applications directly to the German Central Authority or
through the Central Authority of the requesting country. Or
claimants may make their claims directly in the German court, which
may save time if a voluntary solution is unlikely. In either event,
applications and accompanying documents must be translated into
German.
- German courts have interpreted the Convention in
such a way as to reject many requests, and many first instance
decisions have been upheld by higher courts, even the Federal
Constitutional Court.
- Thus, German courts have applied Article 13 of
the Convention to find a threat of serious harm in the foreign
environment from which the child was taken and have allowed young
children to express a preference for remaining with the taking
parent.
- German courts have allowed various aspects of
German domestic law to influence their decisions on whether or not
to return children under the Hague Convention. They have employed
certain provisions of the Federal Constitution, specifically Article
6 guaranteeing the family and rights of children and parents,
Articles 1 and 2 guaranteeing human dignity and liberty, and Article
103 guaranteeing due process.
- In one case, the Federal Constitutional court
upheld the decisions of a German family court and appellate court
that used Article 13, paragraph 2 of the Convention as the basis to
refuse to return abducted children aged 4 and 7. The children had
stated that they preferred to stay in Germany. The court held that
there is no rigid minimum age for considering children's wishes.
- More recent cases show a more differentiated
picture. Some of these uphold the international understanding of the
purposes of the Convention, whereas others appear to continue the
German practice of interpreting the best interest of the child into
the Convention.
- In January 2000 the Appellate Court of
Zweibrücken rejected the abducting mother's claim that the children
would suffer grave injury if they were returned to America because
the father had left her prior to the abduction which had caused her
serious financial difficulties. However, although the court ordered
the return of the children to the United States, the decision was
not executed because the mother refused to relinquish the children,
and the court refused to order the use of force through the sheriff
and the Youth Welfare Office because of possible serious injury to
the children.
- A decision of the Appellate Court of Rostock of
2001 is particularly disturbing. A German mother had abducted the
child to Germany from Canada. The father pressed criminal charges in
Canada which the prosecutor upheld even after the father tried to
retract them. The court found that this created a danger of serious
emotional injury arising from the threat of being separated from the
mother, who had been the sole caretaker of the 3-year-old child. It
held that although the purpose of the Convention, to protect the
best interest of the child, is usually promoted by returning the
child, this must be disregarded when the actual best interest of the
child is better promoted by leaving the child in the place to which
he has been abducted. In addition, the court stated that the Alberta
court would probably award custody to the mother, so that the child
would be returned to Germany in any event, and it would not be in
the best interest of the child to be sent back and forth.
German Domestic Laws Regarding
Child Abduction
- Section 1632 of the German Civil Code provides
that custody over a child includes the right to claim the child from
anyone who keeps him unlawfully.
- If one parent claims the child from the other
parent, then jurisdiction lies with the local family court. In the
ensuing court proceeding, the judge examines any arising custody
issues and also hears from the child.
- German domestic law does not have a summary
proceeding that would correspond to the Hague Convention's return
mechanism. Instead, each German domestic request for the return of
an abducted child may lead to a review of the custody issue, and it
is generally advisable for a parent who leaves the marital home to
take the children with him, as long as he does not take the child
abroad.
- It has been suggested that this practice in
domestic cases may also lead the German courts to conduct a more
thorough evaluation of the circumstances in Hague Convention
requests for the return of the child than might be done in other
countries.
- According to German law, custody is held jointly
by a married couple until the child reaches the age of 18. For
children born out of wedlock, custody is usually held by the mother;
however, the father may obtain joint custody together with the
mother through a joint declaration made before a notary or by
marrying the mother. During and after divorce proceedings, the
family court awards custody either jointly to the parents or to one
parent while giving rights of visitation to the other, unless this
would be harmful to the child under the circumstances.
- Joint custody for divorced parents is a fairly
new institution in Germany, having been enacted in 1997. It is
possible that the courts may still be reluctant to award joint
custody and may still be inexperienced in dealing with the problems
arising from joint custody. In all custody decisions, the guiding
principle of the court is the welfare of the child, and the decision
will be made to promote this purpose.
- The abduction of a child from Germany to a
foreign country is a criminal offense, punishable by up to 5 years
in prison or a fine. Equally punishable is the unlawful retention of
a child in a foreign country. Either offense, however, is
punishable, but only if the person entitled to custody presses
charges or, if the prosecutor decides that there is a special public
interest in the prosecution.
German Courts Handling Hague
Convention Cases
- 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.
Enforcement
- 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.
- The 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."
- In April 2001 the General Accounting Office issued a
report to
the Senate Foreign Relations Committee entitled "Changes to
Germany's Implementation of the Hague Child Abduction
Convention."
- 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.
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An
open letter
from Jeremy D. Morley to Secretary of
State of State Rice, Senator Lugar as Chairman of the Senate
Foreign Relations Committees. et al. concerning
Germany's violation of its obligations under the Hague Child
Abduction Convention
Update:
Germany: "Pattern of Noncompliance"
U.S.
Dept. of State 2007 Compliance Report for the 1980 Hague
Convention on the Civil Aspects of International Child
Abduction:
"The
Department finds that Germany demonstrated patterns of
noncompliance in FY 2006. Specifically, Germany’s
noncompliance relates to the unwillingness of some courts to
enforce orders for the return of children, or access to
children, under the Convention. Leftbehind parents are unable to
secure prompt enforcement of a final return or access order.
Since physical force cannot be used to enforce court orders in
Convention cases, taking parents can and do avoid allowing
court-ordered returns and access."
See also:
Child
Abduction Prevention
- Germany
In
Global Child-Custody Disputes, Germany Keeps Tight Grip
GERMAN FOREIGN OFFICE
Abduction of Children
General situation
The Foreign Office and the German missions abroad (embassies and
consulates-general) are often asked for help when children are abducted
across borders. The majority of such cases occur in the context of
binational marriages or partnerships; when the relationship fails or after
divorce the foreign father or mother takes one or more of their common
children to his/her home country against the will of the German parent. Very
often the children are left in the custody of family members living there.
The rights of (joint) custody of the German parent are regularly infringed,
any decisions already taken regarding rights of custody are ignored and
rights of access abused.
German fathers and mothers can also
be guilty of child abduction if they, against the will of the foreign father
or the foreign mother or in violation of a decision by a foreign court,
return to Germany with the common children.
The abduction of minors is
punishable pursuant to section 235 of the German Criminal Code. The
prerequisite for criminal prosecution is an application by the person whose
parental rights have been infringed. An exception to this requirement can be
made inter alia if the public prosecutor considers it necessary to intervene
for special reasons of public interest. Experience however shows that
measures under criminal law or police action alone only help achieve the
desired objective in rare cases.
 The
decision is in the hands of the Court
In cases of international child abduction, the Foreign Office and the
German missions abroad have no legal means – and in practice only very
limited real means – of helping to secure the abducted child's return to
Germany. In nearly all the countries of the world, issues relating to
custody and the child's place of residence are decided by the judiciary,
that is the courts. This also applies to arrangements concerning rights of
access.
In states governed by the rule of
law and the separation of powers, it is not usually possible for the
country's government to interfere with the administration of justice. This
is the case even if the German mission or the German government asks that
government to help and given the good political relations between the two
countries it would like to do so. When the situation is reversed, the
Foreign Office or the German government too have no choice but to refer to
the independence of the courts. After all, a disagreement between a married
couple or divorced parents as to who should have custody of their common
children is a private (family law) matter, not a foreign policy issue.
Types
of legal proceedings
As is the case in Germany, the police of a foreign state cannot act
solely on the basis of a decision handed down by the court of another
country. In principle there are two possible legal options. It is wise to
discuss these options with an attorney to determine which is the most
promising.
- If a decision has been handed down
by a German court concerning the right of custody of a child and the
right to determine the child's place of residence, the duly entitled
parent can attempt to have this decision recognized and declared
enforceable by the court of the country to which the children have been
taken. Without the successful conclusion of these proceedings a German
court decision is not binding in the foreign country.
- Another option is to bring an
action for custody of the children before the competent court in the
state to which the children have been taken with the aim of securing
their return on the basis of the ruling by the foreign court.
The Foreign Office's experience
with these options is that both are time-consuming and expensive. In most
cases the people concerned will need the help of a local attorney. The
German embassy or consulate abroad may upon request and without obligation
furnish addresses of attorneys (many of whom speak German). The staff of the
German missions abroad themselves are not empowered to represent the
interests of German nationals before the courts. Court and attorney's fees
cannot be assumed by the Foreign Office or the missions abroad.
Special
rules for European Union member states (excluding Denmark)
EC Regulation No. 1347 (Brussels II) has amended the procedure for
recognizing and enforcing judgements (orders, decisions) on matters of
parental responsibility of spouses (right of custody for common and jointly
adopted children) as of 1 March 2001. Any judgements on these matters taken
in the course of divorce, separation or annulment proceedings are now
automatically recognized in the other EU member states without any special
procedure being required. For such a judgement to be enforced, it must also
be enforceable in the member state in which it was made. It still has to be
served properly, and will only be enforced when, on application of any
interested party, it has been declared enforceable in the member state in
which enforcement is sought.
The Hague Convention on the Civil
Aspects of International Child Abduction on 25 October 1980, mentioned
below, takes precedence over the Brussels II Regulation, insofar as it
governs matters covered by the Regulation. The courts must therefore
exercise their jurisdiction in accordance with the Hague Convention.
Foreign
law regulates many things differently than German law
The German missions abroad have only very limited options if the
children abducted are also nationals of the state in which they are staying.
The authorities there will then regard and treat the children exclusively as
citizens of that country; whether or not the children also have German
nationality is completely immaterial. This position is taken by all states
(including Germany). Thus provision of assistance by the German missions
abroad is virtually ruled out and in practice nearly impossible. This
applies above all in those cases in which abducted children have been taken
to an Islamic country.
Family law and legal practice in
Islamic states assigns primary responsibility for children to the father; as
a rule, it is also the father who alone determines in which country and with
which persons the children are to grow up. Even though the Islamic view of
the relationship between men and women does not observe the principles
governing German family law, it must be respected. Efforts by a mother to
bring an action for custody of her child in a court in an Islamic country
usually have little prospect of success, especially if she is a foreigner
and not a Muslim. Only if the father has grossly neglected his duties – by
failing to take care of his child, for instance – does the mother have a
slightly better chance in some Islamic states.
But even winning custody does not
necessarily enable the mother to achieve her goal of taking the child back
to Germany. Should she exceptionally be awarded the right of custody, she
might only be able to exercise this right in the foreign country at the
father's place of domicile, for in most cases the child may not leave that
country without the express consent of the father. A German passport or
child's travel document in lieu of a passport (Kinderausweis) does not help
to resolve this problem.
Out-of-court
solutions
In view of the difficulties described above and given the uncertain
outcome of court proceedings in a foreign country, a consensual settlement
between the parents should be sought, if at all possible. Careful
consideration must be given to the question of whether time-consuming and
costly recourse to the courts is simpler than a meeting of the parents – if
necessary with the participation of persons in a position of trust or
counselling services – during which both, notwithstanding their personal
differences, let themselves be guided by the best interests of the common
children. Legal positions – no matter how clear they may be from a German
standpoint – are often irrelevant for all practical purposes. Decisions of
German courts are useless if they cannot be enforced abroad. Other states
claim the sovereign right to take decisions on their own territory through
their own authorities and courts, just as Germany does.
Hague
Convention on the Civil Aspects of International Child Abduction
In order to return abducted children as quickly as possible, a number of
states concluded the Hague Convention on the Civil Aspects of International
Child Abduction on 25 October 1980. The object of the Convention is to
secure the prompt return of children wrongfully removed to or retained in
any Contracting State. The return of abducted children is designed to ensure
that rights of custody and access are respected. It does not govern parental
custody.
At the moment the Hague Convention
on International Child Abduction is in force between Germany and the
following states:
Argentina, Australia, Austria, the
Bahamas, Belarus, Belgium, Belize, Bosnia and Herzegovina, Brazil, Burkina
Faso, Canada, Chile, Colombia, Croatia, Cyprus, the Czech Republic, Denmark
(excluding the Faroe Islands and Greenland), Ecuador, El Salvador, Estonia,
Finland, France, Georgia, Greece, Guatemala, Honduras, the Hong Kong Special
Administrative Region, Hungary, Iceland, Ireland, Israel, Italy, Latvia,
Luxembourg, Macau (which belongs to the PR of China), Macedonia, Malta,
Mauritius, Mexico, Moldova, Monaco, the Netherlands, New Zealand, Norway,
Panama, Paraguay, Poland, Portugal, Romania, Saint Kitts and Nevis, Serbia
and Montenegro, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sweden,
Switzerland, Turkey, Turkmenistan, the United Kingdom (including the Isle of
Man, the Falkland Islands, the Cayman Islands, Bermuda and Montserrat), the
United States of America, Uruguay, Venezuela and Zimbabwe.
Central Authorities have been
designated in each country to implement this Convention. The German Central
Authority is the Generalbundesanwalt beim Bundesgerichtshof (Public
Prosecutor General of the Federal Court of Justice), Adenauerallee 99-103,
53113 Bonn, Tel: +49/228/410-40, Fax: +49/228/410-5050, postal address:
Generalbundesanwalt beim Bundesgerichtshof, 53169 Bonn. This Authority
should be contacted if a child is abducted to one of the aforementioned
states. Assistance is free of charge to those in need of help.
On 1 October 2000 a task force was
set up in the Federal Ministry of Justice, Jerusalemer Strasse 27, 10117
Berlin, Tel: +49/30-2025-9063, Fax: +49/30-2025-9248, which is concerned
with the settlement of conflicts in international parent and child cases.
This task force is to provide organizational and professional help to the
experts and parliamentarians who are charged with mediating in international
conflicts concerning parent and child law. In particular it assists the
German-French Parliamentary Mediators Group which has been set up by the
Ministries of Justice of Germany and France with a view to resolving
binational conflicts regarding rights of custody.
European
Custody Convention
The European Convention on Recognition and Enforcement of Decisions
concerning Custody of Children and on Restoration of Custody of Children of
20 May 1980 (Custody Convention) entered into force for Germany in 1991 and
is currently applicable vis-à-vis the following states:
Austria, Belgium, Bulgaria, Cyprus,
the Czech Republic, Denmark (excluding the Faroe Islands and Greenland),
Estonia, Finland, France, Greece, Hungary, Iceland, Ireland, Italy, Latvia,
Liechtenstein, Lithuania, Luxembourg, Macedonia, Malta, the Republic of
Moldova, the Netherlands, Norway, Poland, Portugal, Serbia and Montenegro,
Slovakia, Spain, Sweden, Switzerland, Turkey and the United Kingdom
(including the Isle of Man, the Falkland Islands, the Cayman Islands and
Montserrat).
This European Convention primarily
governs the recognition and enforcement of judicial and administrative
decisions on custody and access. The Convention thus does not only cover
cases of child abduction, but also other custody cases.
Pursuant to the Convention, every
decision regarding custody taken in a state which is Contracting Party must
be recognized and enforced in all other Contracting Parties if it is
enforceable in the first state (Article 7). The central authorities
designated by the parties (in Germany the Generalbundesanwalt beim
Bundesgerichtshof in Bonn, as for the Hague Convention) are required to
assist applicants, discover the whereabouts of the child and arrange for
further legal steps to be taken.
Neither the Hague Convention or the
European Custody Convention precludes the application of the other (Art. 34,
2nd sentence of the Hague Convention, Art. 19 of the Custody
Convention). The two treaties complement each other and together provide a
tried and tested legal framework. In practice, the Hague Convention has
proven to be the more effective in bringing about the return of abducted
children. In accordance with section 12 of the German Law of 5 April 1990
Implementing the Custody Convention, the Hague Convention is to be applied
first, in so far as the applicant does not stipulate otherwise. |
We are
experienced
in handling
cases of international child abduction to and from Germany, working with local counsel
whenever appropriate.
Contact Us
Jeremy D.
Morley
International Family Law
230 Park Avenue, 10th Floor
New York, NY 10169
jmorley@international-divorce.com
Tel: (212) 372-3425
Fax: (815) 301-6742
See also:
Child Abduction Prevention
In Global Child-Custody Disputes, Germany Keeps Tight
Grip |
