Germany – 1980 – The Committee for Missing Children, Inc.

Hague Conference on Private International Law – Child Abduction

Preliminary Document No. 2

SUMMARIES OF GERMAN DECISIONS ON THE HAGUE CONVENTION
OF 25 OCTOBER 1980 ON THE CIVIL ASPECTS OF INTERNATIONAL
CHILD ABDUCTION.
[English Version Only]

Illustrative Document

Prepared by Dagmar Schreiber for the Permanent Bureau
of the Hague Conference on Private Internatinal Law

Preliminary Document No. 2 of November 1992
for the attention of the Special Commission of January 1993

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20 and 28 DECEMBER 1990

Amtsgericht DETMOLD, Beschlsse vom 20.12.90 und 28.12.90, AZ 16F
361/90

United States (Indiana)

Result:

Decision of 20 December 1990:

The father was allowed to exercise his visitation rights from 28
December 1990 till 28 January 1991 by taking the five-year-old
girl to the United States.

Decision of 28 December 1990:

The court suspended the execution of the decision of 20 December
1990 because of a request of the mother for an oral hearing to
present new evidence, under German procedural law and Section 6,
paragraph 2 of the German implementing law, in order to prevent
the girl from being harmed.

Facts:

The Italian father and the German mother divorced in an Indiana
court in June 1988. The divorce settlement gave an elaborate
determination of the visitation rights of the father.
Nevertheless, the parents went through several court proceedings
about the father’s visitation rights in the family court of
Detmold.

Upon complaint of the father, the parents agreed in the proceeding
in the (German) appeals court of Hamm upon the former visitation
rights determination and added one month to the visitation rights
of Christmas 1990.

Nevertheless, in practice the agreement did not always work.
Therefore, the father could not fully exercise his rights several
times, i.e. summer vacation 1990. In consequence, the father
started a new court proceeding in Detmold in August 1990.

In the meantime, the mother and the child had moved to Geneva in
May 1990, which forced the German courts to declare themselves
incompetent because of lack of territorial jurisdiction.

When the father asked for his visitation rights on Christmas 1990,
the mother denied any by saying that she would spend Christmas
with the child at her parents’ home in Detmold. Therefore, the
Detmold court had jurisdiction under Section 5 of the German law
implementing the Hague Convention.

Decision of 20 DECEMBER 1990:

Holding:

The court stated that the Hague Convention was in force in
Germany, Switzerland and the United States.

The court rendered an interim injunction because of Article 2.

The court considered the father’s request only as a request under
Article 21, as the visitation right itself had been determined by
the German appeals court order before.

No oral hearing was ordered because of the urgency of the matter
(Christmas time).

The court saw no reason for any exemption under Article 13,
paragraph 1 b as previous stays of the girl with her father had
passed without any problems. Nobody ever questioned that the
father loved the child and provided her with perfect care.

In order to prevent another failure of surrender (like, for
example, one in Frankfurt Airport in July 1990), it was ordered to
take place in the Detmold youth welfare office. In case of
non-compliance, the father could use a bailiff to help him. In
case of sickness of the child, an official doctor had to attest
her travel capacity.

DECISION OF 28 DECEMBER 1990:

Holding:

The court suspended the execution of its 20 December 1990 decision
under German procedural law and Section 6, paragraph 2 of the
German law implementing the Hague Convention.

The father was ordered to comment within three days on the
mother’s allegations about:

a a Swiss visitation rights proceeding pending since November
1990 in Geneva;

b an oral hearing there;

c a report of the Geneva youth welfare office;

d contacts between himself and the child twice in December 1990
in Geneva in presence of a Geneva social worker;

e the girl’s declaration that she did not want to spend
Christmas with her father or visit him alone;

f the father’s plan to pick up the girl in Geneva on 7 January
1991.

An oral hearing on these questions was ordered to be held.

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29 JANUARY 1991
Amtsgericht BAD SCHWALBACH, Beschluá vom 29.1.91,
AZ 1F55/91

– United States (Pennsylvania)

– Result:

The two children (2« years and 11 months old) had to be returned
to their father in the United States under Articles 1, 3 and 12,
paragraph 1 of the Hague Convention.

– Execution:

– If necessary, with the help of a bailiff or police officers,
but: The parents consented to an agreement on the terms of the
return in order to save the children the negative impact of the
execution procedure (see parties’ agreement below).

– The court reserved its right to order the surrender of the
children’s passports and the execution of the return order by
force in the future without a new hearing.

– Costs:

No court fees.

– Facts:

– On 17 January 1991, the mother had taken the children from
the family home in the United States to Germany, where she was
staying with her brother.

– The father had filed a request for return under the Hague
Convention with the German Central Authority. On 28 January 1991
the father had obtained the interim custody rights over the
children by decision of a United States court.

– Holding:

– The removal of the children was considered wrongful under
Article 3, as the father’s custody rights had been breached.

– There were no reasons to grant any exemption under the Hague
Convention, especially not Article 13, paragraph 1 b.

– In the court hearing, the parties agreed on avoiding the
official execution of the return order in order to prevent the
children from being harmed by such action. (See parties’
agreement).

– Parties’ agreement:

1 The parties agree that a return order will be issued under
the Hague Convention.

2 The father waives the right of execution of the return order
until 7 February 1991.

3 The mother agrees to return with the children to the United
States on 7 February 1991.

4 The mother agrees to surrender the children’s passports to
the judge before 10.00 a.m. on 30 January 1991.

5 The mother surrenders her passport to the court immediately.

6 The father does the same with his passport. He also agrees to
surrender the children’s passports in his possession (two sets of
children’s passports, German and American?) to the court after the
hearing.

7 The father’s counsel will call the mother daily at 6.00 p.m.
by phone at her brother’s where she is staying.

8 The parties agree on a daily visitation right of the father;
on 30 January 1991 from 2.00 till 6.00 pm and the following days
from 9.00 am till 1.00 pm. The father will pick up the children
and return them to the mother.

9 The agreement is under the reservation that both the local
youth welfare office and the mother waive any appeals rights
immediately after the end of the hearing.

– Interesting:

– The court also referred to the Luxembourg Convention.

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6 FEBRUARY 1991
Oberlandesgericht KARLSRUHE, Beschluá vom 6.2.91,
AZ 11W 3/91

– Spain

– RESULT:
The father’s request to return the three children to him in Spain
was denied because of Article 35, paragraph 1. The complaint
against the German Central Authority was unsuccessful.

– FACTS:
When the parents, both German nationals, separated in June 1990,
the mother took the three children from the family’s home in Spain
with her on a plane to Munich. All children had been, and still
were at the time of the decision, under the age of 16.

– HOLDING:
– The court determined that the father’s complaint against the
German Central Authority was a request under Section 4 of the
German implementing law and therefore admissible.
– But the complaint was not successful on the merits, as the
German Central Authority rightfully refused to act under Article
27 of the Hague Convention.
– When the mother removed the children to Germany in June 1990,
the Hague Convention had not been in force in Germany yet.
Therefore, it did not apply (Article 35, paragraph 1).
– Concerning a probable retention still occurring after the
entering into force of the Hague Convention, the court denied a
similarity to the crime of retention in the German Penal Code and
interpreted the term retention in Article 12 of the Hague
Convention as a one-time event. The court argued that, with any
permanent definition of “retention”, the deadline of one year in
Article 12 would not make any sense. The court referred to Nos. 12
and 57 of the P‚rez-Vera Report.
– The court also cited to the P‚rez-Vera report (No. 144)
concerning the Hague Conference’s decision against retroactivity
of the Hague Convention by adopting Article 35, paragraph 1.

– INTERESTING:
Complaint against the German Central Authority’s decision not to
pursue the father’s request (under Article 8, paragraph 1 of the
Hague Convention) for return of the children, Section 4 of the
German implementing law.

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8 MARCH 1991
Amtsgericht HAMBURG, Beschluá vom 8.3.91,
AZ 278F 49/91

– England

– RESULT:
The six-year-old boy had to be returned to his father in England
according to German family law and Articles 1 and 2 of the Hague
Convention.

– EXECUTION:
– By bailiff or police with, if necessary, use of force.
– Coercive detention up to one month for the mother, enforced
by a bailiff, in case of non-compliance with the return order.
– German border officials had to assist in preventing the
removal of the child by anybody except his father, and, in
arresting the mother.

– FACTS:
– Since the separation of the parents in July 1990, the child
had lived with his father in England. The parents had joint
custody and an English court seemed to have decided that the boy
should stay with his father. The mother took the boy away and most
likely brought him to Hamburg.

– HOLDING:
– This was a combined (interim) custody and return decision.
The father had requested the court to give him the custody rights
over the boy and to order the mother to return the boy to him. The
court granted both requests.
– The court also applied Articles 1, 2 and 4 of the Hague
Convention on the Protection of Minors in its custody decision.
This was based on the fact that the mother had removed the boy
from his normal environment and that it was urgently important for
the well-being of the boy to end this situation and return him to
his father’s care until a final custody decision.
– The mother and the child were not heard in court because of
the urgency of the matter, but would be heard upon request in a
final custody proceeding after return of the child and/or arrest
of the mother.

– INTERESTING:
The court declared the removal of the child wrongful under Article
15 of the Hague Convention, but made no further use of this
determination.

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3 MAY 1991
Amtsgericht BERLIN-CHARLOTTENBURG, Beschluá vom 3.5.91,
AZ 168F 4379/91

– Netherlands

– RESULT:
The two eleven- and nine-year-old children had to be returned to
their father in the Netherlands immediately, under Articles 8 and
29 of the Hague Convention and Section 1632 of the German Civil
Code.

– EXECUTION:
– The children had to be surrendered to any representative of
the father, especially a social worker from the local Berlin youth
welfare office.
– If the mother would not inform the father about the
whereabouts of the children, she had to fear coercive enforcement
penalty of up to DM 25,000.
– German border officials had to prevent that the children
would leave the country with anybody unauthorized to do so.
– Execution with the help of a bailiff, if necessary by use of
force.
– Coercive detention of up to one month, if the mother would
not return the children; to be enforced by the bailiff.

– COSTS:
The mother had to pay the court fees.

– HOLDING:
– The mother wrongfully removed the children from their new
environment in the Netherlands during a visit. Under the care of
their father, who had the custody rights, and their grandmother,
the children had been adapting well there.
– There was no room for an exemption under Article 13,
paragraph 1 b.
– As the children had not attended their old school in Berlin
after their removal to Berlin, the court held that this proved
that the mother’s alleged intent to bring them back to their old
environment was not true.
– The father had been and still was willing to allow all
visitation rights of the mother.

– The decision was appealed by the mother, but was AFFIRMED by:
Kammergericht Berlin, Beschluá vom 2.8.91, AZ 3 UF 2703/91. (see
No. 7)

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12 JULY 1991
Amtsgericht SAARBRšCKEN, Beschluá vom 12.7.91,
AZ 40F 177/91

– United States (Maryland)

– RESULT:
The father’s request to return the two-year-old girl to him in the
United States was denied, as the exemption of Article 13,
paragraph 1 b applied.

– COSTS:
Court fees.

– FACTS

The girl had lived with her parents in the United States since her
birth in December 1988 until the mother took her to Germany
without consent of the father in April 1991.

– HOLDING
– The court held the removal wrongful under Article 3, as the
parents had joint custody over the child under the applicable
Maryland law at the time of the removal and as the father did not
agree with it.
– Aware of the Hague Convention’s intention to provide for
immediate return of abducted children and not to determine either
parent’s ability to give care and custody for a child, the court
nevertheless opted for the exemption of Article 3, paragraph 1 b
and refused to return the child.
– The court based its decision on the fact that the mother had
been the main person in the girl’s life since her birth providing
her with care, talking German to her and spending the whole day
with her, whereas the father had been working full-time, and,
doing that in the future, he could only hire a third person
unknown to the child to care for her upon a return to the United
States.
– The court feared severe psychological damage if the child
would be separated from her mother (who did not want to return to
the United States) and returned to the United States, as at this
age the child would not understand the change and nobody could
replace the mother who cared for her ever since her birth. In
addition, the father did not give any proof of how he would
provide for adequate care of the girl while working full-time
himself.
– The court held that the child’s situation in Germany seemed
to be positive and stable, as she was in her mother’s care and
communicated in German. The financial conditions of the mother
were not impressive but satisfactory, even without support by the
father.
– The court held that in the best interest of the well-being of
the child, as laid out in the preamble of the Hague Convention, a
return to the United States would harm the child much more than
the admittedly wrongful removal had done so.
– Therefore, the child had to remain with her mother until a
final custody decision was rendered.
– The mother had to allow the father to exercise visitation
rights and had to promote these.

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2 AUGUST 1991
Kammergericht BERLIN, Beschluá vom 2.8.91,
AZ 3 UF 2703/91

– Netherlands

– Appeal decision AFFIRMING:
Amtsgericht Berlin Charlottenburg, Beschluá vom 3.5.91, AZ 168 F
4379/91. (see No. 5)

– RESULT:
The appeal decision affirmed the lower court’s decision that the
eleven- and nine-year-old children had to be returned to their
father in the Netherlands.

– COSTS:
– If the father had incurred any costs in the appeals
proceeding, the mother had to reimburse him.
– No court fees.

– FACTS:
– In November 1989, the father had obtained the custody rights
in the Berlin divorce court. The mother’s appeal against this
decision had not yet been decided.
– While exercising her visitation rights in the Netherlands in
April 1991, the mother had taken the children away from the father
to Germany, and, since then, had refused to inform him about their
whereabouts.
– On 3 May 1991, the Amtsgericht Berlin-Charlottenburg granted
the father’s return request under the Hague Convention.
– The mother appealed against this return decision 1« weeks
after it had been rendered.
– The children had been returned to their father in the
meantime in Mid-june 1991 by way of execution.

– HOLDING:
– The mother’s appeal was n o t a request under Section 8 of
the German law implementing the Hague Convention, as the father’s
return request had never been filed with any Central Authority
under the Hague Convention and as the Amtsgericht had not acted
upon request of the German Central Authority.
– As the subject-matter of the case had been terminated when
the children were returned in mid-June 1991, the case/appeal had
to be closed under German Civil Procedure law.

INTERESTING:
The mother was not willing to accept the court’s decision to
return the children, but she had used up her remedies under the
German law implementing the Hague Convention. Therefore she filed
herself a request under the Hague Convention, an action that led
to the complaint proceeding in the Oberlandesgericht Karlsruhe:
Oberlandesgericht Karlsruhe, Beschluá vom 5.12.1991, AZ 11 W
161/91. (see No. 17)

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16 AUGUST 1991
Amtsgericht G™TTINGEN, Beschluá vom 16.8.91,
AZ 45F 292/91

– France

– RESULT:
– The father’s request to return the eleven-year-old girl to
him in Paris was denied, as he had failed to address his request
with the competent Central Authority in his home country or with
the Central Authority of the requested state by filing his request
directly with the court, Article 8, paragraph 1 and Article 6.
– Secondly (and more importantly), the exemption of Article 13,
paragraph 2 applied.

– FACTS:
The family had lived in Tunisia for nine years, when they decided
to move to Paris in early 1991. In July 1991, the mother left the
father and took the girl with her from Paris to G”ttingen where
she put her daughter in a German school.

– HOLDING:
– The court heard the eleven-year-old girl after her parents
had left the room. She appeared to be old and mature enough in
order for her views to be taken into account (under Article 13,
paragraph 2). She did not seem to be influenced by anyone. She
decisively refused to go to Paris with her father for several
reasons (such as, for example, his permanent shouting at her). She
also seemed to have (nervous) stomach problems because of him.
– In the same decision, the court also gave the mother the
right to determine the child’s residence. The mother obtained as
well the right to put the child into school in order not to
disturb or interfere with her schooling. But apart from these two
interim determinations the court did not want to interfere further
with the father’s still existing joint custody rights.
– The court stated that, under the 1961 Hague Convention on the
Protection of Minors, German law was applicable, as the mother’s
will had determined G”ttingen to be the child’s residence.

– The decision was appealed by the father, but was AFFIRMED by:
Oberlandesgericht Celle, Beschluá vom 13.11.91, AZ 18 UF 185/91.
(see No. 15)

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20 AUGUST 1991
Amtsgericht BESIGHEIM, Beschluá vom 20.8.91,
AZ 3F 430/91

– Hungary

– RESULT:
The seven-year-old girl had to be returned immediately to her
father in Hungary under Article 12 of the Hague Convention.

– EXECUTION:
– Surrender of the child to the father or a representative.
– In case of noncompliance, coercive enforcement penalty up to
DM 50.000- or coercive detention for the mother.
– The court ordered immediate execution in order to prevent the
situation where an appeals proceeding would create facts by
passing of time, that would delay the return of the child, Section
8, paragraph 1, phrase 2 of the German implementing law.

– COSTS:
– The mother had to pay the court fees.
– The mother had to reimburse the father’s expenses as she
produced the court proceeding by her wrongful removal of the
child.

– FACTS:
– The girl was taken to Germany by her mother one day after a
Hungarian family court had given the custody rights to the father
and visitation rights to the mother in the parents’ divorce
judgement. The child was living in Germany with her mother and her
mother’s new husband.
– The mother admitted that the father had obtained custody in
Hungary, but claimed that this decision had not come into force
yet as it had been appealed by her, and, as the Hungarian appeals
court had decided to ask for a psychological expertise on the
custody question one week before the German court’s decision.
– The mother claimed it would be better for the well-being of
the girl if she stayed in Germany. The court requested an opinion
by the local youth welfare office which testified that the girl
had settled down in Germany, but that she still did not speak much
German at all.

– HOLDING:
– The court based its decision that the removal was wrongful on
the certified translation of the Hungarian judgement giving the
custody rights to the father after careful consideration and
extensive investigation of the case.
– The German court took this decision into account under
Article 14 of the Hague Convention. Therefore, the mother’s
removal of the child to Germany had been wrongful under Article 3.
– There were no reasons to grant the exemption of Article 13.
– The court emphasized that its decision was not a custody
decision, but only “enforced” the Hungarian decision. Referring to
the time factor, the court also favoured a return to Hungary
because of the well-being of the girl who could attend school in
Hungary but not in Germany because of her lack of knowledge of
German.

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9 SEPTEMBER 1991
Amtsgericht BERLIN-CHARLOTTENBURG, Beschluá vom 9.9.91,
AZ 178F 8464/91

– England

– RESULT:
The two boys (four and two years old) had to be returned to their
father in England immediately under Article 12.

– EXECUTION:
– Surrender of the boys to a social worker of the local youth
welfare office representing the father.
– If necessary, with the help of a bailiff under use of force.
– In case of non-compliance, the mother had to fear coercive
enforcement penalty up to DM 5.000,-.

– COSTS:
The mother had to pay the legal fees.

– FACTS:
– After the parents’ separation in October 1990, the father
took the children with him to England. In December 1990, he
obtained interim custody for them by order of the Exeter Family
Court. The mother knew about this but was not present.
– In the Berlin divorce proceeding started by the mother, she
obtained the right to determine the children’s residence in
February 1991.
– Meanwhile, she appealed the English interim custody decision
in favour of the father. Her appeal was denied, but she was
granted limited visitation rights, had to return the boys to
England after each visit, had to stop any custody proceedings and
not even start any other in Germany until a final English custody
decision. She agreed to these conditions by affidavit.
– After an agreed upon visit in Germany, she retained the boys
in her Berlin apartment in July 1991 instead of sending them back
to England. In reaction to this retention, the Exeter High Court
ordered a jail sentence of six weeks if she would not return the
children and keep her promises. Furthermore, the court gave the
custody rights to the father and forbade the mother to visit the
children outside England and Wales.
– In August 1990, the father started a proceeding under Article
12 of the Hague Convention.
– The mother defended herself, that the habitual residence of
the children had been Berlin, that the father had abducted the
boys to England and that their return to the father would put them
in the severe danger of harm. A testimony by the Berlin youth
welfare office agreed with the latter, but had not seen the
children’s English environment.

– HOLDING:
– The court heard both parents and the children. It took
partially into account that the older boy opted for returning to
England and that both boys spoke far better English than German.
– The court held that retention was wrongful under Article 3,
paragraph 1, as the father had obtained interim custody by court
order, including the right to determine the children’s habitual
residence (after their moving to England). As the children had
evidently settled down there, the court held that England had been
the habitual residence of the children prior to their retention by
the mother.
– Under English law, the father had temporary sole custody
since the December 1990 English court order. Even if this interim
decision only had the effect of transferring the right to
determine the children’s residence to the father, it had to be
considered as a custody decision, Article 5 a.
– The father had also exercised his custody rights, Article 3,
paragraph 1 b.
– The court’s impression that the mother, her new partner and
the children appeared to be “an ideal family” did not change the
fact that the children had to be returned.
– The exemption of Article 13, paragraph 1 b did not apply, as
the mother could not fulfil her burden of proof that the return
would cause the children harm.
– As the children had only been in Berlin for three months, as
the father’s education did not seem to be harmful to them, and, as
alleged health risks for the children in England were unproven,
the children had to be returned.
– The father’s request did not constitute an abuse of rights
although he himself had removed the boys from Germany to England
in November 1990. The Hague Convention would not apply to this
earlier removal of the children to England, as it was not in force
in Germany at the time, Article 35, paragraph 1.
– Under Article 17, the German decision of February 1991 in
favour of the mother’s interim custody could not prevent the
return.

– The decision was appealed by the mother, but was AFFIRMED by:
Kammergericht Berlin, Beschluá vom 23.9.1991, AZ 3 UF 5187/91.
(see No. 12)

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11 SEPTEMBER 1991
Amtsgericht HAMBURG-ALTONA, Beschluá vom 11.9.91,
AZ 351F 128/91

– Spain

– RESULT:
The father’s request to return the girl to him in Spain was
denied, as the removal had not been wrongful under Article 3,
paragraph 1 b of the Hague Convention.

– COSTS:
No court fees.

– FACTS:
– The girl was born out of wedlock in Spain and lived there
under jointly exercised custody of both parents until October
1990. At this time, the parents agreed to separate and the father
moved into a new apartment, whereas the mother and the girl stayed
in the old one. From this moment on, the mother factually
exercised the custody rights alone (in the opinion of the court).
– The father kept intensive contact with his daughter and even
pretended towards her that he and the mother had not separated
(i.e. by bringing his daughter to bed on week nights).

– HOLDING:
– The court held that this intensive contact constituted only
the exercise of extensive visitation but not custody. The court
said that the father did not exercise his custody rights (if he
had any) under Article 3, paragraph 1 b.
– The court held this despite a certification by the Spanish
Ministry of Justice under Article 15 of the Hague Convention
determining the removal a wrongful one (under Spanish law).
– The court held that even if under Spanish law mother and
father had joint custody rights over an illegitimate child, in
this case the father did not actually exercise his, as only the
mother provided the child with care and education after the
separation in Spain and prior to the removal to Germany which
occurred three months later.
– By taking the child to Germany the mother only made it harder
for the father to exercise his visitation rights, but she did not
deny these.

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23 SEPTEMBER 1991
Kammergericht BERLIN, Beschluá vom 23.9.91,
AZ 3UF 5187/91

– England

– Appeal decision AFFIRMING:
Amtsgericht Berlin-Charlottenburg, Beschluá vom 9.9.91, AZ 178F
8464/91. (see No. 10)

– RESULT:
The appeal by the mother was denied. As decided by the
Amtsgericht, the two boys (two and four years old) had to be
returned to their father in England.

– COSTS:
– The decision that the mother had to pay the lower court’s
fees was not prohibited by Article 26, paragraph 2 because of the
German reservation in Section 13 of the implementing law.
– The appeal was considered free of costs by the court.
– The court did not see the necessity of an order under Article
26, paragraph 4.
– The mother’s request for legal aid had to be denied under
German law, as she had no chances of success with her appeal,
Article 26, paragraph 2.

– HOLDING:
– The court agreed with the lower court that the retention had
been wrongful under Article 3 and that the children had to be
returned under Article 12, paragraph 1 of the Hague Convention.
– Even if the father’s initial removal of the children to
England had been unlawful, the children’s habitual residence was
established there (after six months) when they lived with him and
his family.
– The fact that the mother had exercised her visitation rights
for three months in the spring of 1991 while staying in England
did not change that.
– Referring to No. 69 of the P‚rez-Vera Report, the court
declared the English interim custody decision as valid and
decisive concerning the question who had had custody rights at the
time of the retention.
– The court stressed that the Hague Convention wanted to
prevent that the abductor obtained an advantage in the hope that
the courts of the state to where the children were abducted
decided in favour of the abductor in a custody decision. In this
context the court referred to Article 19.
– From Article 14 the court drew the conclusion that courts of
the requested State did not have to determine who would have
custody under their own law.
– The exemption of Article 13, paragraph 1 b did not apply, as
the mother could not fulfil her burden of proof that the return
would cause the children harm. As the children had only been in
Berlin for three months, as the father’s education did not seem to
be harmful to them, and, as alleged health risks for the children
in England were unproven, the children had to be returned.
– The fact that the mother had to fear a jail detention in
England and therefore seemed to have very poor chances to obtain
custody in the final English custody decision had been provoked by
her own proper conduct and actions. In addition, the English
courts could still decide in favour of the mother’s custody
instead of the father’s if there would be proof that such a
decision would be in the best interest of the boys.
– Contrary to the mother’s claim that a return of the children
would violate the human rights and fundamental freedoms valid in
Germany, the court held that Article 20 of the Hague Convention
did not apply.
– From Article 16 the court drew the conclusion that it was
irrelevant whether there existed a custody decision in the
requested state or whether another custody was recognized there.

– INTERESTING:
As the mother was not willing to accept the lower court’s and the
appeals court’s rulings, she filed herself a request under the
Hague Convention with the German Central Authority, which refused
to act upon this request. The mother’s complaint against this
refusal of the German Central Authority under Section 4 of the
German implementing law was unsuccessful:
Oberlandesgericht Karlsruhe, Beschluá vom 5.12.1991, AZ 11 W
161/91.
(see No. 17)

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27 SEPTEMBER 1991
Amtsgericht NEU-ULM, Beschluá vom 27.9.91,
AZ 1F 0489/91

– United States (Texas)

– RESULT:
The mother had to return the three-year-old girl to the father in
the United States, b u t not on the grounds of the Hague
Convention which was not mentioned at all in the decision
(although it could well have been applied).

– EXECUTION:
As voluntary surrender of the child by the mother seemed unlikely,
with help of a bailiff and police officers; if necessary against
third parties.

– COSTS:
The mother had to pay the court fees.

– FACTS:
– The father, the mother and the child were American citizens.
– The mother had left the United States with the child in
August 1991 and supposedly lived with a German in Neu-Ulm at the
time of the trial.
– The father had filed a motion for child abduction with the
Texas District Court. In execution of the motion a warrant of
arrest was rendered against the mother in the United States.
– Because of the mother’s conduct, the Texas court rendered an
interim injunction in favour of the father granting him sole
custody rights and prohibiting any contact of the mother with the
child until a final decision.

– HOLDING:
– The German court granted the father’s motion for the
surrender of child under German law, as the court had jurisdiction
over the case, as the father solely had the custody rights, and,
as the well-being of the child seemed to be in jeopardy because of
her abrupt removal from her Texan home and the completely
uncertain living conditions in Germany.
– The mother was not heard in court because of the urgency of
the case and the danger of a new removal.
– Proof of the facts had been given by affidavits of the
father.

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1 OCTOBER 1991
Amtsgericht WIESBADEN, Beschluá vom 1.10.91,
AZ 53F 1224/91

United States (New Hampshire)

– RESULT:
The three-year-old boy had to be returned to his father in the
United States immediately. The parents settled on a compromise
knowing that otherwise the court would order the official
enforcement of its return order in favour of the boy’s father.

– COSTS:
– No court fees.
– The mother received legal aid for her attorney’s fees.

– Provisions of the COMPROMISE:
a) The mother returns with the almost four year old boy to the
family home in New Hampshire.
b) The father will make his residence in New Hampshire available
for the mother and child, will give her the key and will pay a
weekly amount of 75 dollars for their support until a final
decision in the New Hampshire custody proceeding will be rendered.
c) The parents agree upon the fact that, against the preliminary
cusotdy order in the State of New Hampshire, the child will reside
in Andover, NH, but will be taken care of by his mother. In so
far, the father waives his right of surrender of the child t him.
This is only valid as long as the child stays in the
aforementioned apartment, at the longest until the final decision
in the custody proceeding.
d) The parties agree that the father has a visitation right.
They declare that they can determine the visitation right and how
to proceed with it among themselves in the United States.
e) The mother agrees not to leave the city of Andover, NH with
the child without the consent of the father.

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13 NOVEMBER 1991
Oberlandesgericht CELLE, Beschluá vom 13.11.91,
AZ 18 UF 185/91

– France

– Appeal decision AFFIRMING:
Amtsgericht G”ttingen, Beschluá vom 16.8.91, AZ 45F 293/91. (see
No. 8)

– RESULT:
The father’s appeal against the Amtsgericht decision that his
daughter could stay in Germany and had not to be returned under
the Hague Convention was denied. The girl stayed in Germany with
her mother.

– COSTS:
– No court fees for the appeal.
– The father had to reimburse the mother’s legal fees.

– FACTS:
– As in the Amtsgericht decision, plus:
The family had lived in Tunisia for nine years, when they decided
to move to Paris in early 1991. In July 1991 the mother left the
father and took the girl with her from Paris to G”ttingen, where
she put her in a German school.
– The mother claimed the father was unable to educate the child
and even produced psychosomatic problems on her by disgracing her
permanently, watching television all night in the family’s
efficiency apartment in Paris, including pornographic movies.
Therefore, the daughter had a deep resentment against him.
– The father said he had a normal father-child relationship
with his daughter including occasional disputes, but that he cared
for her as much as possible despite his professional engagement as
variety artist well-known in France and Tunisia, a fact his
daughter supposedly was proud of.

– HOLDING:
– The court reversed the lower court’s decision to the extent
that the father’s request was inadmissible under Article 8,
paragraph 1 and Article 6, because he filed his request directly
with the Amtsgericht and not with the German Central Authority, as
the latter would have transferred the request to the Amtsgericht
G”ttingen anyway.
– In addition, the court held that Article 29 allowed anybody
claiming a wrongful removal under Article 3 could file his/her
request directly with the courts of a Contracting State in case of
a violation of custody rights.
– The court affirmed the Amtsgericht decision to deny the
father’s request for return by granting the exemptions of Article
13, paragraph 1 b and Article 13, paragraph 2.
– The court saw the severe risk of harm for the girl and held
that the severe allegations against the father had to be
investigated thoroughly in the custody proceeding.
– Decisive seemed to have been the girl’s own testimony in
favour of staying with her mother in Germany. Her testimony was
considered convincing and not being influenced by the mother.
– The court upheld as well the interim custody decision in
favour of the mother, referring to the 1961 Hague Convention on
the Protection of Minors and German law, but indicated that in the
final custody proceeding the question of jurisdiction could be
decided differently.

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4 DECEMBER 1991
Oberlandesgericht KARLSRUHE, Beschluá vom 4.12.92,
AZ 11W 117/91

– United States

– RESULT:
The father’s complaint/request to order the German Central
Authority to act towards a return of his two children (an
eight-year-old boy and a six-year-old girl) from the United States
was denied under Article 35, paragraph 1, as the Hague Convention
was not in force in Germany at the time of the removal of the
children.

– FACTS:
– In the German divorce judgement the mother had obtained the
custody for the children, but in July 1990 this was put under the
condition not to remove the children from Germany. Despite her
acceptance of this condition, the mother took the children with
her to the United States in September 1990 where they remained.
– In July 1991, the father filed a request under the Hague
Convention with the German Central Authority asking them to act on
his behalf for a return of the children from the United States.
The German Central Authority refused to act for several reasons
(see below).
– The father then filed a complaint against the Central
Authority under Section 4 of the German implementing law.

– HOLDING:
– The court’s main reason for the refusal to order the German
Central Authority to proceed was the fact that the removal of the
children occurred three months prior to the entry into force of
the Hague Convention in Germany.
– The fact that the children were still retained by the mother
in the United States when the Hague Convention entered into force
in Germany did not constitute a retention under the Hague
Convention, as this would generally render the one-year-deadline
of Article 12 useless with the retention being a permanent
situation. Decisive had to be the action of the retaining person
at the beginning of the retention, which occurred in this case
before the entry into force.
– In addition, the court held that the father’s request would
not be successful as in the court’s view the removal of the
children had not been wrongful under Article 3, paragraph 1 a of
the Hague Convention. The court argued that the removal of the
children to the United States by their mother had been correct, as
she had had sole custody (by German court order) and, therefore,
had not interfered with anybody else’s custody rights.
– The fact that, in July 1990, the father had obtained an
injunction (in connection with his motion to obtain custody over
the children) ordering the mother to stay with the children inside
German territorial boundaries did not play any role. (Six months
after the removal the father had obtained the custody rights by
German court order (April 1991) and two months after that he had
filed an application under the Hague Convention for the return of
the children with the German Central Authority (June 1991), who
refused to comply with it because of the reasons mentioned above.)
– INTERESTING:
– Complaint against the German Central Authority’s decision not
to act upon the father’s request for return of the children,
Section 4 of the German implementing law.
– The court elaborately defined what retention meant.
– The court referred to the P‚rez-Vera Report several times.

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5 DECEMBER 1991
Oberlandesgericht KARLSRUHE, Beschluá vom 5.12.92,
AZ 11W 161/91

– England

– Complaint decision related to:
– Amtsgericht Berlin-Charlottenburg, Beschluá vom 9.9.1991, AZ
178 F 8464/91 (see No. 10);
and (AFFIRMED by):
– Kammergericht Berlin, Beschluá vom 23.9.1991, AZ 3 UF 5187/91
(see No. 12).

– RESULT:
The mother’s complain/request to order the German Central
Authority to act under the Hague Convention was denied.

– COSTS:
None.

– FACTS:
– After her unsuccessful appeal against the Amtsgericht
decision in favour of a return of the children to their father in
England under Article 12, paragraph 1, the mother herself filed a
request for return of the children to her with the German Central
Authority in September 1991. Nevertheless, at that time the
children were with their mother in Germany and, obviously, not
retained by their father in England.
– Her request to act on her behalf under the Hague Convention
was denied by the Central Authority. Therefore, she filed a
complaint under Section 4 of the German implementing law asking
the court to declare that:
a) the father had wrongfully removed and retained the boys in
England under Article 3 at the time when the Hague Convention
entered into force in Germany;
b) by this action the exercise of her joint custody rights had
been rendered impossible and the human rights of the children had
been violated;
c) the children who had been illegally removed and continuously,
intentionally retained by the father had to be returned under
Article 12;
d) the English interim custody decision in favour of the father
had been invalid under Article 16;
e) Article 20 of the Hague Convention would be violated as the
human rights and fundamental freedoms of the children were harmed
by their return to England, to where they had been brought
illegally and where they had not had time to establish social
contacts and relationships.

– HOLDING:
– The Hague Convention did not apply to the father’s removal or
retention of the children under Article 35, paragraph 1, as the
Hague Convention had not been in force at that time in Germany,
and as the start of the retention was the only decisive date.
– In addition, the court held that the mother’s request made no
sense as the boys were with her in Germany at the time of her
request and therefore no retention on behalf of the father was
taking place.
– The question which custody decision was valid, English or
German, had no significance for this determination.
– All the other requests filed by the mother were inadmissible
in this court because of lack of jurisdiction (for custody, etc.).
– The Oberlandesgericht Karlsruhe had only to and could only
decide on the mother’s request to order the German Central
Authority to act, Section 4 of the German implementing law.

INTERESTING:
– Complaint against the German Central Authority’s decision not
to act upon the mother’s Hague Convention request, Section 4 of
the German implementing law.
– Although it had to decide in a different matter (the mother’s
complaint against the Central Authority) than the Berlin courts,
the court seemed to agree with the decisions of these courts.

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9 DECEMBER 1991
Amtsgericht BIELEFELD, Beschluá vom 9.12.92,
AZ 34F H1/91

– United States (Florida)

– RESULT:
CERTIFICATION under Article 15 of the Hague Convention, attesting
that the removal of a Jamaican-American girl by her
Jamaican-American mother to the United States from the girls’s
habitual residence with her Jamaican father in Germany was illegal
both under the applicable Jamaican law as well as the
alternatively applicable German family law.

– FACTS:
– The six-year-old girl was removed under armed threat by her
mother to the United States from her father’s home in Germany
where she had lived since her parents’ separation one year after
her birth. The girl had not had contact with her mother ever since
the separation in August 1986.
– The parents were divorced by a United States court in Miami a
few months after the separation in October 1986. The same court
gave the custody rights to the mother. The father gave an
affidavit to the German court that he never saw or knew about the
written applications of the divorce and custody proceedings or the
divorce and custody judgments of the Miami court.
– For more than four years the mother had never tried to
enforce the Miami court divorce and custody judgement.

– HOLDING:
– The German court certified that the removal of the child by
the mother was wrongful under Article 3 of the Hague Convention.
– The court found that under German conflict law Jamaican law
was the relevant law to determine who had the custody rights.
Under Jamaican law, both parents had joint custody until a final
court order in favour of one parent’s custody. The father gave an
affidavit that the United States custody decision in favour of the
mother had not been recognized in Jamaica.
– The court held that, as the father also never officially
received the United States court documents and judgments, the
transfer of custody onto the mother alone had never become valid.
Therefore, the parents still had joint custody.
– In Germany, the United States divorce and custody decisions
from Miami had never been formally recognized as well. A
recognition was impossible under German law, as the father had
never been officially served with the written applications opening
the proceedings in the Miami court. Therefore, under German law,
both parents still had joint custody.
– Factually, the father had exercised his custody rights in the
sense of the Hague Convention at the time of the removal by the
mother.
– Therefore the father’s custody rights had been breached which
rendered the child’s removal to the United States by the mother
wrongful under Article 3 of the Hague Convention, Article 15.

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13 DECEMBER 1991
AMTSGERICHT LUDWIGSHAFEN, Beschluá vom 13.12.92,
AZ 5d F 223/91

– United States (New Mexico)

– RESULT:
The father’s request for return of the six- and five-year-old
children to the United States was denied, as the exception of
Article 13, paragraph 1 b of the Hague Convention applied.

– COSTS:
– No court fees, Article 26.
– Father had to reimburse the mother’s legal fees.

– FACTS:
– The parents had lived in Germany until they moved to the
United States in 1984. They lived there together with the two
children (a girl born in September 1985 and a boy born in October
1986) until May 1991. At that time, the mother returned to Germany
with the children where she moved in with her parents.

– HOLDING:
– The court based its decision in favour of the exemption of
Article 13, paragraph 1 b (and, therefore, the remainder of the
children with the mother in Germany) on the fact that the mother
had cared for the children continuously in the past and could do
this much better than the father who was working full time.
Although the mother then took a job in Germany as a nurse from
6.45 am until 3.30 pm in Germany, the court held that she still
had time enough to care for the children in the afternoon and
evening after their return from kindergarten.
– In addition, the court referred to the children’s vehement
refusal to return to the United States, as testified by the youth
welfare office.
– This added up to the court’s opinion that a return to the
United States would contradict the children’s well-being and put
them in an intolerable situation.

– INTERESTING:
– The court referred to both the Hague and the Luxembourg
Conventions.
– Apparently, there had been a custody proceeding going on at
the same time or earlier in the same court, as the youth welfare
office’s report had been taken from another proceeding (September
1991).

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25 FEBRUARY 1992
Amtsgericht NšRNBERG, Beschluá vom 27.2.92,
AZ 8F 186/92

– United States (Texas)

– RESULT:
The child had to be returned to his father in the United States
immediately under Article 12, paragraph 1 of the Hague Convention.

– EXECUTION:
In case of non-compliance with the court order, the mother had to
fear coercive enforcement penalty possibly amounting up to DM
50,000.

– COSTS:
– No cost decision was considered necessary.
– The regulation concerning the costs derived from the law.
– As to the extra-court expenses of the parties, there was no
reason to deviate from the principle that these did not have to be
reimbursed.

– REQUIREMENTS for a return under Article 12 as examined by the
court:
1) wrongful removal or retention according to Article 3;
2) not more than one year ago, Article 12, paragraph 1;
3) none of the exceptions of Article 13 applies.

– FACTS:
– The American father and the German mother had lived together
in the United States, where their son had been born in January
1991, until the mother left with the child for Germany in August
1991.
– The mother lied to the father in order to leave the United
States by pretending that her own mother had had a car accident in
Germany.
– The mother refused to return to her husband and was unwilling
to turn the boy over to his father for return to the United
States.

– HOLDING:
– The court held that the Hague Convention intended to
reinstate the situation before the wrongful removal of the child.
Therefore, any decision about custody over the child had to be
suspended under Article 16 until a decision in the Hague
Convention proceeding.
– But the court also emphasized that under Article 19 a
decision in favour of return did not constitute a decision on
custody.
– The removal of the seven-month-old boy by the mother was
wrongful under Article 3, as both parents had joint custody under
Texas law and as the father only agreed to a four to six week
visit of mother and child to Germany, but not to a permanent stay
of the boy. The court elaborately investigated by testimony and
documents if the father agreed at some point to a permanent stay,
but denied this.
– The court did not see any reason to grant the exemption of
Article 13 as its requirements were not fulfilled or, at least,
not proved. The father proved that he exercised his custody rights
prior to the removal and did not agree to a permanent one, Article
13, paragraph 1 a.
– Article 13, paragraph 1 b did not apply, as it had to be
interpreted restrictively in favour of the return of the
wrongfully removed child. Restrictively meant that the harm had to
be caused by the return itself. As the boy had lived in the United
States since his birth and as the mother was free to return with
him in order to provide him with her presence and adequate care
until a final custody decision in the divorce proceedings started
by the father in a Texas court, and, as the boy was too young to
express and experience any substantial ideas about his
preferences, there was no risk of harm to him by a return to the
United States.
– Reasons that could come into play in a custody decision were
not to and, therefore, had not been considered.
– Article 20 obviously did not apply.

– INTERESTING:
The court very clearly and thoroughly applied the provisions of
the Hague Convention to the facts.

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6 MARCH 1992
Amtsgericht BAD KREUZNACH, Beschluá vom 6.3.92,
AZ 9F 63/92

– United States (Texas)

– RESULT:
The father’s request under the Hague Convention (Article 12) to
return the three girls to him in the United States was denied, as
(the removal of the children by the mother and their retention in
Germany was not wrongful and) Article 13, paragraph 1 b applied.

– FACTS:
– The children were six, five and two years old. In September
1991, the mother took them for a visit with her to Germany. The
father had agreed on an extended visit to Germany and brought his
family to the airport. After one month in Germany the mother
informed the father that she would stay there with the children
permanently.
– The father filed an application with the German Central
Authority under Article 12 of the Hague Convention in January
1992.
– The mother had started a custody proceeding in a German
family court in November 1991. The father requested transfer of
the custody proceeding to the competent Texas court that had
territorial and subject matter jurisdiction. In case of denial of
this request, he applied for custody in the German court. The
local youth welfare office opted in favour of the mother’s custody
in February 1992.

– HOLDING:
– The court applied Article 13, paragraph 1 b saying that the
children had been cared for since their births by their mother and
that their focus of life was with her. (This was confirmed by the
two older girls’ testimony, who were heard in court in late
February 1992 and said that they wanted to stay with their
mother.)
– The court easily determined that it would be incompatible
with the well-being of the children to return them to Texas where
they did not know anybody except the father who was working
full-time as an Air Force officer and where nobody known by them
could care for them.

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19 MARCH 1992
Amtsgericht PIRMASENS, Beschluá vom 19.3.92,
AZ 1F 124/91

– United States (Tennessee)

– RESULT:
The father’s request to return the six-year-old girl him in the
United States was denied because of the exception of Article 13,
paragraph 1 b.

– COSTS:
– The parents had to share the court fees.
– Other legal fees had to be paid by each party for
him/herself.

– FACTS:
– The father alone had had custody over the girl since the
parents’ divorce in a Tennessee court, when the mother came to
visit the girl at the father’s place in Tennessee.
– The mother took the child back with her to Germany where she
was put into elementary school.

– HOLDING:
– The court granted the exception of Article 13, paragraph 1 b,
as the girl had developed in Germany from an undisciplined and
nasty child into a well-behaved, progressing student who lived in
a perfectly normal and safe environment with her mother and
maternal grandparents.
– The court agreed with the social worker that a return to the
United States would put the girl in the risk of harm to her
well-being as well as of severe negative impact on her
development.
– The seven-year-old girl who was heard in court was considered
mature enough for her opinion to be taken into account. The girl
vehemently opted for staying with her mother in Germany.

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30 MARCH 1992
Amtsgericht CELLE, Beschluá vom 30.3.92,
AZ 23F 73/92

– England

– RESULT:
The father’s request to return the two five- and two-year-old
children to him in England was denied, as the court held that the
removal of the children by the mother had not been wrongful under
Article 3 of the Hague Convention.

– COSTS:
The father had to bear the costs.

– FACTS:
– The parents were married in Germany in 1982 and lived there
with their two sons (born in June 1986 and in July 1987) until
they moved to England in October 1990. On 18 January 1992, the
mother left England without knowledge and consent of the father
and took the boys to her parents’ home in Germany.
– The father then filed a request under Articles 1, 3 and 12 of
the Hague Convention for immediate return of the children to
England.

– HOLDING:
– The court based its decision not to return the children on
the assumption that their removal had not been wrongful under
Article 3.
– The court held that under English law the parents had joint
custody for the children and therefore the legal situation was not
different from German law.
– The court reasoned in the following way:
If the parents could not agree on the place of residence of a
common child, they were unable to determine it jointly. If in this
situation one parent – without consent by the other parent –
determined the place of residence of the child unilaterally, this
could not be unlawful, as each parent’s rights equalled exactly
the other parent’s rights in the joint custody situation. If one
parent could not unilaterally determine the place of residence, it
would be impossible to do so lawfully.
– In order to support this reasoning, the court said that, if
the mother had told the father about her intention to leave with
the children and if he had not agreed with it, his conduct then
would not have been considered unlawful as well.
– In situations like that, a solution of the conflict would
only be possible by asking a family court to give sole custody to
one parent.

– The decision was appealed by the father, and REVERSED by:
Oberlandesgericht Celle, Beschluá vom 18.5.1992, AZ 17 UF 92/92.
(see No. 27)

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9 APRIL 1992
Amtsgericht BERLIN-CHARLOTTENBURG, Beschluá vom 9.4.92,
AZ 179 UF 3704/92

– United States (Tennessee)

– RESULT:
The one-year-old boy had to be immediately returned to his father
in the United States under Article 12 of the Hague Convention..

– EXECUTION:
– If necessary, with the help of a bailiff or police officers
under use of force.
– The bailiff could look for the child in the mother’s
apartment against her will.
– The mother also had to turn over the personal belongings of
the child to the father.
– The execution could only take place if the father agreed with
time and place, and, if he was present at the very moment in order
to take over the child.
– If, when, and where the father made use of his right of
return lay within his discretion.
– Immediate enforceability of the decision was ordered.

– COSTS:
– The court fees had to be shared half/half by the father and
the mother.
– The counsels’ fees had to be paid by each party for
her/himself.

– FACTS:
– The parents and the boy had lived together in Tennessee until
February 1992, when the mother left her husband and took the then
seven-month-old boy with her to Germany. On 9 March 1992, she
filed an application for sole custody with the German family
court.
– On 6 March 1992, the German Central Authority indicated that
the boy had been wrongfully removed to Berlin.
– The father who had obtained sole custody by a Tennessee court
order of 28 February 1992, produced a certification under Article
15 by the Tennessee court stating that the removal of the boy
against the father’s will violated the laws of Tennessee and
therefore was wrongful under Article 3.

– HOLDING:
– The removal of the child from the United States to Berlin by
the mother had been wrongful, as both parents had joint custody
under the laws of Tennessee, and, as the father had not agreed to
the removal, Article 3. For this determination, the German court
relied completely on the certification of the Tennessee court
under Article 15.
– There were not obvious factual reasons to grant the exemption
under Article 13, paragraph 1 b, as the mother was not nursing the
boy any longer and as the father sufficiently explained to the
court his plans for the care of the child. The father also
produced a certification by a local youth welfare office about his
capability to care for the child.
– By the time of the German court’s decision on grounds of the
Hague Convention, the father had already been granted exclusive
sole custody by a Tennessee court and he was present in Berlin in
order to take the child home with him. This was the reason for the
special (return) arrangements made by the court.

INTERESTING:
– The father produced a certification by a Tennessee court
under Article 15 stating that the removal was wrongful.

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10 APRIL 1992
Amtsgericht COCHEM, Beschluá vom 10.4.92,
AZ 46 UF 66/92

– United States (Michigan)

– RESULT:
The one-and-a-half-year-old child had to be returned to his father
in the United States immediately.

– EXECUTION:
The return could take place in the way that the mother went back
to the United States with the child.

– FACTS:
– The father who was a member of the American armed forces and
the German mother were married in Germany and lived there with the
child until the father was transferred back to the United States.
– In January 1992, the mother had left the family home in the
United States with the one-year-old boy without informing the
father in advance and therefore surprising him.
– The father requested the return of the boy with the Central
Authority in Germany and through his counsel under the Hague
Convention.

– HOLDING:
– The court ordered the return of the boy under Article 12, as
the removal had been wrongful and as less than one year had passed
since it happened.
– The exception of Article 13, paragraph 1 b did not apply as
the testimony of a Germany social worker proved that the child had
a close relationship with both parents and would not even suffer
harm if he returned without his mother to the United States.
– The court emphasized that its decision was appropriate, as
the final custody decision still had to be taken. Therefore, it
proposed that both the mother and the child should return to the
United States until the final custody decision would have been
rendered there.

– INTERESTING:
Citing to Section 8, paragraph 2 of the German implementing law,
the court notified the parties of the remedy of immediate appeal
to the Oberlandesgericht Koblenz.

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5 MAY 1992
Amtsgericht VECHTA, Beschluá vom 5.5.92,
AZ 12 UF 304/91 HK

– England

– RESULT:
The British father’s request to return the two eight- and
six-year-old children to him in England was denied.

– FACTS:
– The father who was a member of the British Army and the
German mother were married in Germany in September 1983. Their son
was born there in December 1983 and they lived there until 1985,
when the father left the British Army and the family moved to
England, where the daughter was born in September 1985. At that
time the father started to serve in Saudi-Arabia, whereas the
mother went back to Germany with the two children in June 1986.
The father joined his family there after he had finished his
contract in Saudi-Arabia. In March 1990, the family moved back to
England again where the father had bought a house and where the
children went to school in the following time.
– In June 1991, the mother left the father and took the
children with her to Germany, where she put the boy in primary
school and the girl in kindergarten.
– Whereas the father claimed that his family was gone when he
came home from work in the evening of 24 June 1991, the mother
claimed that the father had kicked them all out of the apartment.
– The father claimed that the children had been wrongfully
removed by the mother and that this action was against an English
family court decision of 7 July 1991, holding that the removal had
been wrongful (certification under Article 15?), ordering the
return of the children within 14 days and giving the father
interim joint custody. He then filed an application under the
Hague Convention with the German Central Authority for return of
the children.
– The mother claimed the exemption of Article 13, paragraph 1 b
alleging that the children’s return would cause them the risk of
severe psychological harm, as they were completely integrated in
Germany (neighbourhood, school, kindergarten, sports club) and as
they feared to have to go back to England to a foreign
environment.

– HOLDING:
– The court held that the removal had been wrongful under
Article 3, as both parents had joint custody under the English
Guardianship Act of 1973 and as none of them could take a decision
against the will of the other parent under the English Children
Act of 1975.
– The court denied the father’s request to return on this
ground, as the children were heard in court and clearly declared
that they did not want to return to England but stay with their
mother, and, as they had spent most of their lives in Germany. In
addition, both spoke faultless German to the degree that could be
expected at their age.
– The court’s decision was mainly based on the testimony of a
court-appointed expert witness, a professor of psychology, who
testified that the children’s return to England could put them in
a severe risk of psychological harm.
– Under Article 16 of the Hague Convention, the custody
proceeding started in Germany by the mother in the meantime was
suspended.

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18 MAY 1992
Oberlandesgericht CELLE, Beschluá vom 18.5.92,
AZ 17 UF 92/92

– England

– Appeal decision REVERSING:
Amtsgericht Celle, Beschluá vom 30.3.92, AZ 23 F 73/91. (see No.
23)

– RESULT:
Contrary to the decision of the Amtsgericht, the five- and
two-year-old children had to be returned to their father in
England.

– EXECUTION:
– If necessary, with the help of a bailiff or police officers.
– In case of non-compliance, the mother had to fear coercive
enforcement penalty up to DM 5,000.

– COSTS:
– No court fees.
– Both parents received legal aid (Article 26, paragraph 4).

– HOLDING:
– The removal of the children from England to Germany was
wrongful under Article 3, paragraph 1 a, as the father’s joint
custody rights under English law were breached by the mother’s act
of secret, unannounced removal of the children.
– The court held that the children were not old and mature
enough to be heard under Article 13, paragraph 2.
– The court emphasized that the custody decision still had to
be taken and that the primary concern of the Hague Convention was
to return the children as soon as possible and without delay in
the courts, Article 11, paragraph 1 of the Hague Convention.
– The mother invoked the exemption under Article 13, paragraph
1 b, as the children’s return to their father, who supposedly is
an alcoholic, beat her and the boy once and attempted suicide in
April 1992, would expose the children to harm or place them in an
intolerable situation, but the court saw no proof for her
allegations.

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3 JULY 1992
Oberlandesgericht CELLE, Beschluá vom 3.7.92,
AZ 15 UF 103/92

– England

– Appeal decision REVERSING:
Amtsgericht Springe, Beschluá vom 22.4.92, AZ 6 F 47/92.

– RESULT:
Contrary to the decision of the Amtsgericht, the five-year-old boy
had to be immediately returned to his father in England.

– EXECUTION:
– If necessary, with the help of a bailiff or police officers.
– In case of non-compliance, the mother had to fear coercive
enforcement penalty amounting possibly up to DM 50,000.

– COSTS:
– Both the mother and the father were granted legal aid and an
attorney was appointed to each of them.
– No court fees.

– FACTS:
– The parents and the boy had lived together in England until
10 August 1991, when the mother left and took the boy with her to
Germany.
– The father had exercised his custody rights until that day.

– HOLDING:
– Keeping the child in Germany was a wrongful retention under
Article 3, paragraph 1 of the Hague Convention, as the child’s
habitual residence was England, as the parents had joint custody
under the relevant English law (Guardianship Act of 1973, Children
Act of 1989), and, as the father did not agree to the child’s
retention in Germany or as there did not exist a court decision
(necessary under the Guardianship Act of 1973) instead.
– The question, if the child was going to remain with the
father in England, had to be decided by English courts in the
trial on custody.

– INTERESTING:
The mother did not try to invoke (and prove) the exemption under
Article 13, paragraph 1 b.

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6 JULY 1992
Oberlandesgericht KOBLENZ, Beschluá vom 6.7.92,
AZ 11 UF 520/92

– United States (New York)

– Appeal decision AFFIRMING:
Amtsgericht Bad Kreuznach, Beschluá vom 15.5.92, AZ 9 F 85/92.

– RESULT:
As granted by the Amtsgericht, the two-year-old boy had to be
returned to his father in the United States.

– COSTS:
– The mother had to pay the legal fees under Article 26,
paragraph 3 of the Hague Convention and Article 6, paragraph 1 of
the German implementing law.
– No court fees.

– FACTS:
– The mother took the child from the United States to Germany
in December 1991 without consent of the father.
– The father obtained sole custody by order of the Family Court
of the State of New York) on 8 June 1992.

– HOLDING:
– Immediate appeal was admissible under Article 8, paragraph 2
of the German law implementing the Hague Convention.
– As mother and father had joint custody and the father did not
agree to the removal, it was an unlawful act under Article 3,
paragraph 1 a of the Hague Convention (referring to No. 71 in the
P‚rez-Vera Report). The court held the New York custody order
irrelevant for this determination.
– The
court did n o t grant the exception under Article 13, paragraphs
1 b and 2, as the child was only two years old and the mother
could help him to get used to his old/new environment in the
United States, if she was really interested in the well-being of
the child. The court had the impression that the mother was
willing to do so. The fact that German was the child’s only spoken
language at this point had no impact.
– The court had no information about, and therefore could not
consider, allegations about a former drug addiction of both
parents and drug addiction treatment of the mother or the father’s
smoking of joints.
– The court emphasized that its decision had no impact on any
further custody decision.
– The boy was too young for any consideration under Article 13,
paragraph 2,
– Article 20 obviously did not apply.

– INTERESTING:
– The court applied the Hague and Luxembourg Conventions at the
same time.
– The court referred twice to the P‚rez-Vera Report (No. 71,
No. 118).