In re the Minority of Child (FRG 1999)Higher Regional Court Koln, 15 Nov 1999
26 International Abduction (FRG 1999)
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[line of text illegible in fax]
15 Nov 1999
Dr. Pollzien and Partner
[line of text illegible in fax]
[line of text illegible in fax]
District Court Koln
Higher Regional Court Koln
Resolution
in the family matter
concerning the minority child [text struck out] residing
with mother
Parties involved:
1) the father of the child
Mr. [text struck out]
Plaintiff and Defendant,
Plaintiff’s attorney: general state attorney for the state
court, service office State Central Directory, Neuenburger
Strasse 15, 10968 Berlin –
Attorneys for the Plaintiff: Attorneys [text struck out]
2) The mother of the child:
Mrs. [text struck out] to subpoena through her attorneys
Defendant and Plaintiff
Plaintiff’s Attorney: Attorney [text struck out]
3) The Youth Office of the City of Koln, District Office of
Innenstadt, Bruckenstrasse 19, 50867 Koln
[text illegible in fax] the 24.th civil senate – Senate for
family affairs – of the Higher Regional Court of Koln on the
31st of October, 1997 decided
To the defendant’s complaints of the 17th of
January, 1997, the Koln District Court –
Family Court verdict of October 4, 1995, 314 F
112/95 – will be lifted.
Legal expenses, in both cases are to be
covered by both parties, half each. A
reimbursement of expenses outside of legal, is
not occurring.
Grounds
Through the disputed verdict the District Court, in
accordance with 33 Abs, EGG because of an infringement
against the verdict of the Higher Regional Court of Koln, a
penalty of 1,000.O0 DM against the mother has been
established. The counter charges the mother of the child are
valid and grounded in facts.
The senate, as Court of Complaints, has to ascertain,
whether at the point of the verdict, this fixed penalty is
still justified (compare Butmiller/Winkler, FGG, 2. ed.,
note 7 to 33 [text in fax illegible].
Based on the obtained expert opinions of the 15th of August,
1997, the senate has come to the conclusion that for the
time being, measures of force are no longer justified. This
is also because, for the time being, there is no possibility
of a restitution of the child [text struck out] to Great
Britain, which has been ordered through the senate in
grievance proceedings 25 UF 240/93 on the 21st of October,
1994 in a pronounced verdict to be executed, without any
chances of severe risks of psychological damage for the
affected child. This is nevertheless, not to reconcile with
the contractual goal of the net agreement over the civil
rights aspects of international child abduction from the
25th of October, 1980, as may be seen in article 13,
sentence 1, letter b of the net agreement.
It is to be presumed that restitution of the child could not
take place in the personal accompaniment of the child
through the plaintiff, because she is not ready for it.
Thus, restitution must take place without the mother. This
was relevant for the child with the severe risk of emotional
damage Because [text struck out] has spent a substantial
part of her life, more importantly, the part she can
remember, alone with her mother, who is the only real family
member for Sarah. As a result, [text struck out] poses
emphatic resistance to a return to her father.
If she is to be separated from her only constant family
member, in order to fit in to her father’s family, who are
practically strangers to her, this would severely damage
Sarah. A result of separation from an important personal
link would lead to a loss of trust. Expert literature
describes this as a loss of “old trust”. This could be
decisive in the child’s later life and in her future
relationships. Based on the child’s temperament, it can
manifest itself in. anxiety, aggression or disassociated
behavior.
From Sarah’s behavioral style, it can be anticipated that
she would adjust to the shock on the outside, but keep her
anxieties on the inside. A psychological shock, as she would
experience, would further destabilize her and carry with it
the risk of neurotic development.
Based on this information, a return of the child to England
– an infringement of a basic right, as far as the child is
concerned – would cause an infringement of the child’s
constitutional rights from Article 2 Abs. 1 in relation to
Article 1 of the constitutional law, to prevent child
abduction, cannot be accepted, even with. an adjustment of
interests in the contractual goal of the net agreement.
The senate does not fail to recognize that even intermittent
development of the child and the encountered danger, of her
return to England without accompaniment by her mother would
result in the child’s psychological detriment, which are to
be accounted for by the plaintiff, since she has stated time
demands and that she does not want to accompany the child.
She cannot, of course be forced under the net agreement to
do so. And since this is primarily about protecting the
child’s basic rights, this able reproachable behavior is not
to be further exacerbated with the consequences that would
follow the child’s return to England. Moreover, it appears
that this cannot be asked of the child. Therefore, the
parental unit that brought about this development can also
certainty not be detained through means of force, to carry
out a move that would inflict even more damage to the child.
The disputed decision was after all to be lifted.
The cost determination is based on 14 a Abs. 1 Cla..use 1
FGC.
There are no sufficient grounds for reimbursement of
expenses for one or the other parties involved.
Value of Damages: 1,000.00 DM
Dr Helling
Completed
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