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Germany's Apparent Violation of the Hague Convention

OPEN LETTER REGARDING GERMANY'S VIOLATION OF THE HAGUE ABDUCTION CONVENTION

 

Below is a letter (identities of parties hidden) Jeremy Morley sent to Secretary of State Rice, Senator Richard Lugar as Chairman of the Senate Foreign Relations Committees et al concerning Germany's violation of its obligations under the Hague Child Abduction Convention.

 


May 25, 2006

Secretary Condoleezza Rice
U.S. Department of State
2201 C Street NW
Washington, DC 20520
 
Senator Richard Lugar,
Chairman, U.S. Senate Committee on Foreign Relations
Dirksen Senate Office Building
Washington, DC 20510-6225
 
Senator Pete Domenici
328 Hart Senate Office Building
Washington, DC 20510
 
Senator Jeff Bingaman
703 Hart Senate Office Building
Washington, DC 20510
 
Office of Children's Issues
Bureau of Consular Affairs, Overseas Citizens Services
2201 C Street, NW, SA-29 4th Floor
Washington, D.C. 20520-2818
Attn.: Natalie Wazir

Re: German Non-Compliance with Hague Child Abduction Convention

Dear Secretary of State Rice and Senators Lugar, Domenici and Bingaman:

Germany is in plain violation of its treaty obligations under the Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”).

I represent J, the father of N, a child born and habitually residing in New Mexico who was abducted by her mother in September 2004 and taken to Germany. Notwithstanding their dilatory issuance of a court order requiring N’s prompt return, the German authorities have failed to have the child returned to the United States. The child is still to this day in Germany, more than twenty months after her abduction, and with absolutely no end in sight.

Since Germany has inexcusably failed to comply with its treaty obligations, we request on behalf of J and his daughter, that you use your best efforts to bring appropriate pressure on Germany to comply with the terms of the Hague Convention in this case, as well as in all other cases.

Facts of this Case

N was born on -- 2004 in -- New Mexico. Her mother is S, a German national. Her father is J, a United States citizen. They were not married.

Shortly after N’s birth each parent signed a formal Acknowledgment of Paternity and the New Mexico Department of Health issued a birth certificate listing each parent. The child lived in [New Mexico] with S and J visited her regularly.

On September 25, 2004, S flew with N to Germany, without J’s prior knowledge or consent. The mother and child have remained in Germany continuously thereafter.

On or about November 16, 2004, J filed with the U.S. Department of State an Application for Assistance under the Hague Convention.

By letter to the U.S. Department of State (Ms. DeBeor) dated December 14, 2004, the German Central Authority acknowledged receipt of the Application, advised that S had been located in Germany, and requested certain information, all of which J subsequently supplied.

On January 11, 2005, the Eleventh Judicial District Court, County of San Juan, New Mexico (the “New Mexico Court”) issued an order of paternity in favor of J.

On January 28, 2005, the New Mexico Court issued an order that S and J should have joint legal custody of N, that J should temporarily have sole physical custody and that S must return Nina to J’s custody. 

On April 1, 2005, the District Court in Celle, Germany requested clarification of whether or not J had rights of custody under New Mexico law.

On April 22, 2005 the New Mexico Court issued an interim order, and on May 4, 2005, a final order that at all relevant times J had and continues to have rights of custody under New Mexico law; that S had “violated petitioner’s custody rights by taking the Child to Germany, by keeping her there and by refusing to allow petitioner to see her;” and that “Respondent’s removal of the Child was ‘wrongful’ under Article 3 of the Hague Convention.”

In or about June, 2005 (nine months after his application), the District Court in Celle, Germany issued an order denying J’s Hague application. The basis of the District Court’s decision was that J had not seen N on many occasions and had not paid money for N, so that he had never exercised his custody rights. The decision was entirely erroneous, both in fact (J had seen N as frequently as S would permit and had paid significant money to S) and in law (courts around the world, including Germany, uniformly hold that by exercising his visitation rights a parent is also deemed to have been actually exercising his custodial right).

J immediately appealed to the Higher Regional Court (Oberlandesgerichts) in Celle, Germany.

On July 22, 2005, J attended in Germany a hearing before the Higher Regional Court. On this occasion (ten months after the abduction), S was permitted to raise a host of issues that had not been previously raised in the Celle District Court.

On August 9, 2005, one of the judges at the Higher Regional Court telephoned J’s lawyer in Germany and told her that J should agree to accept nothing more than visitation in Germany or else the Court would rule in favor of the mother on the ground that a very young child should not be sent to another country.

On September 26, 2005 (one year after the abduction), J traveled again to Germany to attend a second hearing at the Higher Regional Court. On this occasion, the Court indicated that it would issue a return order promptly.

On January 26, 2006 (16 months after the abduction), the Higher Regional Court sent a fax to J’s German lawyer demanding that J procure a custody decision from the New Mexico courts that gives custody to both parents, and a statement from New Mexico that S will not be arrested in New Mexico.

On January 27, 2006, Ms. DeBoer in the Office of Children’s Services wrote an email to J agreeing that the German authorities were acting inappropriately and stating that, “The German court is overextending it's boundries (sic) and has no authority regarding the eventual custody decision which comes out of NM.  I will certainly protest this as well.” 

On February 27, 2006, the Higher Regional Court issued an order directing that S should return N immediately to New Mexico. The order correctly stated that the grounds previously relied on by the German District Court were baseless.

In or about March, 2006, S appealed to the Federal Constitutional Court (Bundesverfassungsgericht). The Higher Regional Court then announced that it would not enforce the return order, until the Federal Constitutional Court announced whether it would accept the appeal.

On or about May 22, 2006 (20 months after the abduction), the clerk of the Federal Constitutional Court reported to J’s German lawyer that the file in the case is missing and cannot be found.

J has spent in excess of $30,000 in legal fees on this matter thus far.

Conclusions

1. Germany’s conduct in this matter is and has been entirely reprehensible. It has failed to cause the return of a wrongfully-taken child in what should be a straightforward Hague return case. Its courts have colluded with one of its own nationals in employing a string of delaying tactics that have prevented the American father from seeing his own child for what will soon be two long years.

2. Article 11 of the Hague Convention requires parties to the Convention to resolve Hague applications expeditiously, preferably within six weeks.

3. The State Department has reported to Congress (State’s 2005 “Report on Compliance”) that,

 “A key component in the effective application of the Convention is courts’ willingness and ability to hear and issue a decision on Convention applications expeditiously”

 and, in the case of one country, that

 “These lengthy delays violate Article 11 of the Convention requiring the expediting of proceedings, and ultimately worsen the impact from the abduction on the children involved.”

4. Delays in Hague proceedings have long been a major problem in Germany. In May 1999, the State Department reported to Congress that the German administrative and judicial processing of abduction cases took 18 months or longer, a period that the State Department considered entirely unacceptable. The international criticism of Germany led Germany to enact procedural reforms and Germany and the United States set up a binational commission to pursue cooperative approaches.

5. In April 2001, the General Accounting Office issued a report for the Senate Foreign Relations Committee entitled “Changes to Germany’s Implementation of the Hague Child Abduction Convention.” It concluded that the delays in Germany’s processing of Hague applications had been excessive; and that even “the German task force acknowledged that German courts have taken too long to adjudicate abduction cases in the past.” The General Accounting Office concluded by stating that Germany was adopting reforms which would hopefully solve the problem.

6. J’s  experience establishes that the German reforms have not worked. He and his daughter have suffered the consequences of that failure for the past twenty months.

Accordingly, it is very urgently requested that you take any and all actions that you may deem necessary and appropriate to cause the German authorities to comply with their treaty obligations to promptly return N to her habitual residence in New Mexico.

 

Respectfully yours,

 

Jeremy D. Morley

Information on Germany : Family Law :
An unofficial translation.  continue

Advice on preventing child abduction in Germany  continue

If a German Court's return order will usually order the abducting parent  continue

Prenuptial agreements and Germany  continue

Section 1632 of the German Civil Code provides that custody over a child  continue

German divorce law for international marriages  continue

Germany has halved the amount of time it takes for international child custody cases  continue

Germany has a uniform court structure under which   continue

The Foreign Office and the German missions abroad  continue

It is our personal experience handling international child abduction cases in Germany (with local counsel) that serious problems still   continue

Open letter concerning Germany's apparent violation of its obligations under the Hague Child Abduction Convention.   continue

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