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.
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.