CHILD ABDUCTION PREVENTION

The following is an extract from Germany's answers to a questionnaire submitted by the Hague Conference on Private International Law concerning the Hague Convention on the Civil Aspects of International Child Abduction:

1.     Please give details of any civil legislative provisions which exist in your State which may act as a deterrent to a potential abductor, or may have a preventive effect.

In particular, the following provisions under civil law can have a deterring or preventive effect:

a) An abductor must expect to be confronted by a right to the return of the child under section 1632 [1] of the German Civil Code (BGB). The proviso to this is that the child is being illegally retained from the entitled parent. If the parents have joint custody, then retaining the child and requiring its return can both be unlawful. Therefore, the order to return the child requires an examination of the child's best interests.

b) Furthermore, a parent who illegally retains the child from the other parent and endangers the physical, mental or emotional well-being of the child in the process can lose parental custody either entirely or in respect of certain aspects through a measure by the Family Court pursuant to section 1666 [1] BGB.

c) In addition, mention is made of the provision of section 1671 BGB. This provision regulates cases in which parents who have joint custody are not only living apart temporarily. In this case, sole parental custody or partial parental custody can be granted to only one of the parents upon request if it can be expected that this is in keeping with the best interests of the child.

d) If the abductor had the right of access to the child, ensuing from the abduction, it can also be ordered that the visitation procedures be changed (section 1684 [3] BGB) or, pursuant to section 1684 [4] BGB, that the right of access be restricted or disallowed.


Pursuant to section 1684 [3] in conjunction with subsection [2] BGB, the Family Court can specify the extent of the right of access and its exercise (in respect of third parties) more strictly and by court order require those concerned to comply with their obligation to refrain from any actions that interfere with the child's relationship to the other parent or impede the child's upbringing. In so far as it is necessary in the best interests of the child (section 1684 [4], first sentence, BGB), i.e. in long-term measures, and if the child's welfare would otherwise be endangered (section 1684 [4], second sentence, BGB), the Family Court can either restrict or disallow right of access. If the other parent should make the probability of abduction sufficiently convincing through adequately concrete factual testimony, the family court's procedure is to either disallow access or to order that access only be allowed when a willingly involved third party is present (cf. section 1684 [4], third sentence).

There are other measures available in addition to this which can regulate the exercise of right of access more narrowly. Such measures may include, in particular, geographical restrictions and conditions in regard to the exercise of right of access.

Examples:

- Prohibition to leave a precisely demarcated geographical area with the child (court's district, Federal Land, Federal Republic of Germany)
- Condition to regularly report to a police station, Youth Welfare Office or another authority with the child throughout the exercise of the right of access
- Order to deposit passport, airline ticket and/or any other appropriate documents for the duration of the access
- Condition imposed on the parent having right of access to make known and, if necessary, convincingly affirm the parent's whereabouts in Germany during exercise of the right of access and how they can be reached.

However, thus far, measures of this kind have seldom been ordered in court practice. It can however be expected that these measures will be put into practice to a considerably greater degree upon the entering into effect of the European Convention on Contact Concerning Children.

Pursuant to section 1684 [3] second sentence BGB, the Family Court can, by court orders containing the aforementioned details, also require the parent having right of access to fulfil the obligations imposed on them. To this end, pursuant to section 33 subsection 1, first sentence, of the Act on Non-Contentious Matters, the court can impose fines in order to enforce its orders. In individual cases, this too can have a deterring or preventive effect vis-a-vis potential abductors.

e) If the abductor has a right to maintenance in respect of the parent from whom the child is being withheld, under the conditions set forth in section 1579 no. 6 BGB, such parents right to maintenance can be restricted by a Family Court decision. Pursuant to this, maintenance can be denied, reduced or limited for a time, if, even in safeguarding the interests of a joint child entrusted to the entitled parent, making the obligor liable would be grossly inequitable.

f) Furthermore, the abductor must expect to make good on claims to compensation by the parent having custody. Such claims could be provided under section 823 [1] BGB on account of interference with parental custody. Compensable damage can consist in, e.g. the costs incurred in returning the child or also in the costs of a detective investigating the whereabouts of the child. Section 823 [2] BGB can also give rise to a claim to damages as a result of a violation of a protective law (e.g. section 235 of the Criminal Code (Child Stealing)).


2.     Please give details of any criminal legislative provisions which exist in your State which may act as a deterrent to a potential abductor, or may have a preventive effect.

From the standpoint of criminal law, depending on the specific circumstances, abductions can be regarded as

- Serious Trafficking in Human Beings (section 181 (1) no. 2 of the Criminal Code  StGB)

- Kidnapping (section 234 StGB),

- Child Stealing (section 235 StGB),

- Trafficking in Children (section 236 StGB),

- Deprivation of Liberty (section 239 StGB),

- Kidnapping for Extortion (section 239a StGB) or as

- Hostage Taking (section 239b StGB).

In the case of a kidnapping for the purposes of extortion, reference is made primarily to Kidnapping for Extortion (section 239a StGB).

The differing degrees of criminal liability content and injustice which the aforementioned offences constitute are set forth in the minimum sentences by which they are punishable. Whereas kidnapping for extortion and hostage taking are generally punishable with a prison sentence of no less that five years (up to 15 years), serious trafficking in human beings, kidnapping, child stealing, trafficking in children and deprivation of liberty are punishable with lesser minimum sentences.

Serious Trafficking in Human Beings: as a rule, prison sentence of no less than one year (up to ten years);Kidnapping: as a rule, prison sentence of no less than one year (up to 15 years);Child Stealing, Trafficking in Children and Deprivation of Liberty: as a rule, prison sentence of one month (up to three or five years) or a fine, in serious cases, prison sentence of no less than six months or no less than one year (up to ten years).

In the case of child stealing, deprivation of liberty, kidnapping for extortion and hostage taking, the minimum prison sentence is increased if the offender causes the death of the abducted victim through negligence (carelessness).

Kidnapping for Extortion and Hostage Taking resulting in death caused by carelessness: prison sentence of no less than ten years or life; Child Stealing and Deprivation of Liberty resulting in death caused by negligence: as a rule, prison sentence of no less than three years (up to 15 years).

Anyone could be the victim of severe trafficking in human beings, kidnapping, deprivation of liberty, kidnapping for extortion or hostage taking. The victim of child stealing or trafficking in children can only be adolescents (section 235 (1) no 1 StGB, section 236 (2) StGB) or children (section 235 (1) no. 2 StGB, section 236 (1) StGB).

Whoever forms an organisation, the objectives or activity of which are directed towards the commission of abductions, which under the criminal code constitute severe trafficking in human beings, kidnapping, child stealing, trafficking in children or deprivation of liberty, or whoever participates in such an organisation as a member, recruits for it or supports it, will be punished with imprisonment for not more than five years or a fine pursuant to section 129 (1) StGB.

Whoever forms an organisation, the objectives or activity of which are directed towards the commission of abductions, which under the criminal code constitute kidnapping for extortion or hostage taking, or whoever participates in such an organisation as a member, will be punished with imprisonment from no less than one to ten years pursuant to section 129a (1) no. 2 StGB. Whoever supports such an organisation or recruits members or supporters for it, will be punished with imprisonment from six months to five years (section 129a (3) StGB).

Pursuant to section 129b of the StGB, which entered into effect on 30 August 2002, sections 129 and 129a StGB also apply to organisations in foreign countries.


3.     Please give details of any court orders which can be obtained during, for example, divorce or custody proceedings which prohibit, restrict or criminalise removal or retention of a child.

Court orders can be obtained either in connection with divorce proceedings (under the Act to Reform the Law on Parent and Child Matters as an ancillary matter only upon filing a request, section 623 subsections (2), (4) of the Code of Civil Procedure - ZPO) or also separately (sections 621,621a ZPO; section 64 FGG), albeit primarily by filing a request. On the material basis of section 1666 BGB (Jeopardy to the Welfare of the Child), the Family Court can, however, take action proprio motu as well and take any decisions it considers reasonable. The execution of the orders is regulated under section 33 FGG (section 621a ZPO), i.e. the court orders can be enforced through the imposition of fines, coercive detention or direct force. Where there are indications of impending non-compliance with the orders, the enforcement measure can be warned of in the decision on right of access or custody restrictions itself, in order to make more expedient imposition and execution possible later.

In the event that one parent impedes or prevents the implementation of an (already imposed) right of access, a court mediation proceeding (section 52a FGG) is possible (application proceedings).

In particular, the following court orders should be mentioned, by which the removal/retention of a child are prohibited, restricted or subjected to punishment:

a) If there are indications of the threat of child abduction, to begin with, the right of access of the potential abductor can restricted pursuant to section 1684 [4] BGB. The orders possible pursuant to section 1684 [4] BGB are:

-     Refusal of right of access, section 1684 [4], first and second sentences BGB,
-     Accompanied access, section 1684 [4], third and fourth sentences BGB,
-     Restriction of access to the domestic territory,
-     Passport deposit (this point is disputable in decisions given by the higher courts; on account of the passport jurisdiction of the country of origin, an order of this nature could be problematical in cases involving non-nationals),
-     Surveillance by a detective,
-     Ban on motor vehicle usage.

a) If there are indications of the threat of child abduction, moreover, the potential abductor's right to determine the child's place of residence can be revoked pursuant to section 1666 [1] BGB. In certain circumstances, this can be combined with the prohibition to inform such parent of the child's whereabouts.


4.     Please give details of any court orders which can be obtained in emergency situations. Can these orders be obtained out-of-hours and ex parte?

In emergency situations, the Family Court can implement all the measures by interim injunction which are listed under question A.3. in response to an ex parte application. In exceptional cases, the court can order such measures under the conditions stipulated in section 1666 [1] BGB either proprio motu or at the request of the competent Youth Welfare Office. In cases involving the endangerment to the welfare of the child, the Family Court can also order that the Youth Welfare Office be granted custody of the child pursuant to section 42 of the Eighth Book of the Social Code (SGB VIII).

Court orders of this nature can also be obtained out-of-hours and ex parte. In doing so, the fact must be taken into consideration that at certain times on weekends and holidays and out-of-hours many Local Courts either cannot be reached or are difficult to reach. As a result of the Federal Constitutional Court decision of 15 May 2002 2 BvR 2292/00- (official collection of judgments by the Federal Constitutional Court (BVerfGE) Volume 105, pages 239 - 252 = Neue Juristische Wochenschrift 2002, pages 3161 et. seq.) 


5.     Do you have any comments relating to relocation orders?

and

6.     Do you have any other comments relating to legislative provisions, court orders or administrative measures including any comments on the effectiveness of these provisions, and how often they are used in practice?


For the question as to how one can prevent possible/imminent abductions, the following considerations could be of interest, which are basically of no consequence in the context of relocation applications filed after an abduction has already taken place.

The application of preventive measures seems to be a necessity, particularly where highly quarrelsome couples are concerned. Conversely, cases involving couples who can reach an agreement on their own, or perhaps with professional help, an abduction of the shared child should generally not be a concern. In cases involving highly quarrelsome couples for whom an amicable settlement after separation is not possible for a variety of different reasons, more often than not however, an agreement will be unsuccessful due to an absence of voluntariness, as well as a lack of willingness to compromise and acquiescence.

The dilemma that makes prevention so difficult is the range of motives and situations in life from which an abduction can stem. As a result, a parent whose actions are selfishly motivated (e.g. in order to deliberately cause harm to the others by stealing the child) will not easily allow themselves to be persuaded against their decision.

There are also situations in which one parent takes the shared child (particularly in a bi-national relationship), with them after separation (e.g. to their country of origin), since they could not make a living in their previous place of residence and cannot support the child, either because they were not permitted to work, or because they could not work (e.g. because the child is still too small or there are several children etc.). In such a case, the removal for purely financial reasons could perhaps be dealt with by way of a consequent judgment on maintenance which obliges the parent earning an income to pay sufficient maintenance.

An additional reason a parent might take a child without the consent or against the will of the other parent is frequently the fear of not being allowed to see the child (regularly) after the separation. This fear could be allayed by way of a decision regarding right of access, which grants the parent, in whose household the child does not live, a generous right of access.

In this context, it is of great importance to put the other parent's fear to rest that the child will not be brought back after exercise of the right of access. This is where the measures provided by the European Convention on Contact concerning Children can be of great help toward the protection of the child and building up trust between the parents.

Measures of this nature, which offer incentives not to "abscond with" the child, would presumably achieve more frequent success than would sanctions. Nevertheless, particularly a parent acting out of selfish motives will not allow themselves to be easily persuaded by this. In these cases, sanctions must be applied, whose deterring effect is certainly undisputed, but the complete avoidance of which will ultimately not be feasible.

This conceivably includes a battery of sanctions, which could range from criminal prosecution to the forfeiture of custody/right of access, to the forfeiture of one's own claim to (spousal) support.

Finally, the strictest possible implementation of the Hague Convention on the Civil Aspects of International Child Abduction (HK) after an abduction has taken place would presumably be successful in achieving deterring effects. Albeit, it has not been proven that as a result of this a parent refrains completely from abduction. Based on the experiences of the German Central Authority, however, it may be safely assumed that abduction, at least in a country which - both in respect of relocation orders, as well as their compulsory execution - strictly applies and enforces the Hague Convention on Child Abduction, demands thorough contemplation (and occasionally the abducting parent even selects a country of refuge to which they may not have any connection, but which is known for not enforcing the Hague Convention on Child Abduction with the required degree of rigorousness).

In view of this, the greater part of relocation orders by German courts are in compliance with the convention, whereas successful enforcement is more frequently the exception. In the Central Authority's view, this is an area where action needs to be taken also with regard to -- but not merely -- preventive measures.