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.