GERMANY AND 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.
-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.
-Indeed, we can report that it is our personal experience handling international child abduction cases in Germany (with local counsel) that serious problems still apply with respect to the prosecution and satisfactory resolution of Hague Convention applications in Germany.
-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.
We are experiencedin handling cases of international child abduction to and from Germany, working with local counsel whenever appropriate.