Germany – FATHER V MOTHER – 1999(CALLE)

Father v Mother (FRG 1999)Higher Regional Court of Calle
17 Dec 1999
25 International Abduction [FRG 1999]

Higher Regional Court of Calle

In the Family Matter
Concerning Restitution of the Children [DEL]


Father [DEL]
Defendant and Plaintiff
Proceedings Representatives: Attorneys [DEL]

Mother [DEL]
Plaintiff and Defendant
Proceedings and Service Representatives: Attorneys [DEL]

Additional Claimants: Youth Office of County [DEL]

Entered 17 Dec 1999

001 The 19th Civil Senate – Senate for family affairs –
of the Higher Regional Court of Calle through the presiding
judge of the Higher Regional Court [DEL] as the Judge of the
Higher Regional Court [DEL] and [DEL] on the 20th of October
1994 has decided:

002 The immediate complaints of the Father and those of
the County Youth Office Verden the decision of the District
Court “Family Court” Verden of the 10th of September, 1994
will be lifted. The mother’s proposal for the children [DEL]
will be refused.

003 Legal expenses for the proceedings will not be
lifted; costs other than legal will not be reimbursed.

Grievance Cost: 10,000 DM

004 Grounds: The father’s complaints and those of the
Youth Office are admissible, especially submitted in a
timely fashion [text illegible] FGG in relation to Art. 1 of
the law to be carried out on custody agreement and
alteration of the law on the matters of voluntary
jurisdiction like other laws from 5/4/1 990 1 BGB1 [text
illegible].  3 Abs. 2 of the law to be executed of the
gaunt agreement of 25/10/1980 over the civil rights aspects
of international child abduction and of the European
agreement of 10/5/1980 over acknowledgment and execution of
decisions about the custody of children and the restoration
of their custody arrangements [custody rights
agreement-executed law] – Sorge RUbkAG

005 The complaints in this matter lead to success.

006 At present the senate assumes, after the plaintiff,
in the course of the complaint proceedings brought about
that the prerequisites for the applicability of the gaunt
agreement of the civil rights aspects of international child
abduction of 25/10/1980 and especially its Art. 3

007 BGB1.1990.S.207. In the decision of the High Court of
Justice for the senate is binding as is partially
represented (compare with MuKo-Siehr, BG3, Munchner
Kommentar-Erganzungsband. Art. 19 EGBGB [text illegible]),
Art 15 of the net agreement RN 501 can be undecided, because
in any event, according to Art. 14, the senate can consider
the net agreement directly.

008 If an unlawful holding back of the children, in the
way of Art. 3 of the net agreement is to be contended with,
restitution of the children is to be denied, notwithstanding
according to Art. 13 Abs. 2 of the net agreement. Children
resist restitution with decisiveness. They have already
expressed their wish to remain with their father at their
hearing in Family Court, indeed without granting this
circumstance any space in the disputed decision; in so far
as their wish is expressed indirectly. This occurs only in
response to an argumentative discussion with the assessments
retrieved from the father and in relation with the
application of Art. 13 Abs. 1 lit b of the net agreement
rejected by the Family Court.

009 The children have again expressly and decisively
rejected their restitution, which the plaintiff does not
address, in their hearing before the senate. The senate is,
on the basis of the children’s hearing, also convinced that
they have reached an age and a level of maturity, to which
is seems appropriate, to consider their opinion. (Art. 13
Abs. 2 of the net agreement). As far as the disputed
decision will be executed, the children are ostensibly.

010 At present, this clause is also in conjunction with
the executions that counter the retrieved assessments, so
that it appears unclear whether the Family Court has ever
even examined the child’s will itself and the extent to
which it should be considered, rather it seems to have
focused only on examining and describing it by private

011 Further, if the first hypothesis is the case, it
would not be clear whether the Family Court would want to
generally deny consideration of the will of 9 year old
children, or whether it simply does not deem the age and
maturity of the children here in question to be sufficient,
to consider their wishes. Certainly it lacks a reason in
either case. For a fixed age limit by which a child’s will
does not warrant consideration, does not exist. This will
also go into the jurisdiction (see evidence in Muko-Siehr,
at indicated location, footnote 46 of Art. 13 RN 52; in that
case, among others, restitution of two 7 and 10 year old
children was denied).

012 This, of course, stems from the fact that such age
limitations are not mentioned in the net agreement. This
must also consciously remain unstated, since in another
location, in Art. 4 of the net agreement, use is made of the
possibility to draw an age limit.

013 To be renewed through additional demand for an
adequate maturity level because of the running known and
diverse types of maturity processes that makes relative and
individualized the character ‘age’.

014 At present, this clause is also in relation to the
executions that are placed against the retrieved
assessments, so that it appears unclear whether the family
court examined the child’s will itself and the degree to
which it should be taken into consideration or whether it
has only considered it’s practicable testing and description
by private experts.

015 [text missing] the decision to consider it, is
irrevocably shunted to the object of the will. While a 9
year-old child, in most cases, does not possess the required
maturity to decide over his or her future education, to make
the decision, for instance, between a basic education type
of school or one that entails higher education. On the
other hand, a 7 year old child is generally capable, when
faced with the choice, between joining the judo club or the
soccer club. To be considered most of all is that the net
agreement before everything else, serves its purpose of
restoring the status quo as expeditiously as possible
(compare Muko-Siehr, at the indicated location, Introduction
RN 2) to carry out a return to the rightful owner, as is
dictated in the property law S359 3GB. Therefore the child’s
well being is not to be interrupted in the least, moreover
there is a great deal more, in the context of the custody
rights proceedings in the way of the regular residence of
the child, which is to be decided (compare Muko-Stiehr, at
the indicated location). In accordance with this is the
prohibition in Art. 16 of the net agreement of the property
decision over custody rights in the country of refuge before
the decision of a proposal according to the fixed Art. 8 of
the agreement. According to Art. 17, with the caveat of Art
13, not one single custody rights decision of return to the
country of refuge stands in the way, if the prerequisites of
Art. 3 of the agreement. Finally, it is also acknowledged
that prolonged investigations contradict the agreement
(compare Muko Stiehr, in indicated location). Art. 13 RN
55). From here follows: for the existing according to Art.
13 Abs. 2 of the net [text missing]

016 The level of her maturity is not to be determined
abstractly, also not on the standard of child well being in
view of a yet to be made custody arrangement, rather only in
concrete relation to the pending decision of restitution.
That the children have reached an age and level of maturity
in which they can evaluate this matter is for the senate,
out of the question already.

017 [text struck out] has already made his refusal clear
before the start of negotiations, in that he pushed his
mother away with his hands. Following this episode he had
several minutes until the appearance of those involved in
the negotiation or otherwise engaged parties was settled and
the course of the negotiation briefly touched upon, and sat
in row of chairs in the back. As he stepped into the
deliberation room, he still cried in a restrained fashion.
After receiving restrictive and evasive answers to his
spontaneous questions as to whether or not he had to now
return to his mother, he buried his face in his arms, which
were rested on the table, and remained sobbing in this
state, without allowing himself to be addressed. Not until
after repeated patient and cautious efforts did it become
possible to speak with the boy. This was particularly
enabled by the simplified portrayal of the course of the
proceedings and the suggestion that only a partial,
provisional arrangement would be met, while the decision of
his and his brother’s definitive place of stay would not be
decided until the coming custody proceedings case.

018 This news appeased him somewhat and he then asked,
almost immediately thereafter, for how long, in the case
that [text missing] the custody rights ruling to stay with
his mother because he views the circumstances of his life up
until present, negatively in every aspect and rejects any
continuation of these conditions decisively, even if only a
short time would be entailed.

019 [DEL] justifies his decision to want to live with his
father less, that is, secondarily, with the personal
characteristics of one or the other parent, but primarily
with the statement that he [the father] is German. What he
means with this statement, when he’s followed up with
follow-up question, if the English are then “different”,
i.e. doesn’t adequately explain, rather he maintains that
they somehow have a different character; however he cannot
explain the notion. From the portrayal of specific
circumstances that distress him, it becomes clearer. He
reiterates that he has no friends in school. With the
exception of his brother, he’s the only German there and is
labeled as a “Nazi” and gets yelled at. To the question to
what led to this, he explains that he voluntarily told his
classmates that his father was a soldier. When he was
reminded that his father is a physician, he explains that
his father works for the German Federal Armed Forces.
Finally it becomes apparent that the defendant’ up to this
time unbeknownst to the senate, is active as a hired
physician for the German Federal Armed Forces, in addition
to being a released physician. To the question concerning
what he told his classmates about his father’s profession,
Alexander explained that he communicates with his classmates
in English. Requested to repeat what he tells his classmates
about his father’s profession, he says: “My father is a
[text missing]

020 When asked about the course of his typical day, he
says that he mostly gets up around 7 or 7:30 AM. His mother
is allegedly already gone by this time. Breakfast is
prepared by the nanny, who takes him to school around 8:30
with the metro and picks him up late in the afternoon. His
mother comes home around 6PM and doesn’t stay for long.
Rather, she leaves the apartment towards the evening and
goes to the casino. With the mother both children allegedly
speak French and English, with the nanny, Natascha. Asked
about his good scholastic performance, he explains that he
works hard for it. School is allegedly very demanding.
Moreover, he emphasizes that this is again related to the.
fact that he has no friends and goes on to tell about
several episodes of mistreatment received by different
teachers and about some other distinct episodes.

021 [DEL] will also insist upon having lived in [DEL] in
[DEL] even before his parents’ separation. He did not feel
restricted in his recreational opportunities, even though as
the senate recognizes, he was close to [DEL] his own [DEL]
is also urban-like in character. He does not accept the
comparison between the French school in Hamburg and the one
in London, especially since the one is attended by many
German children, whereas in the. other, there are no German

022 [text missing] about his mother, he states, in
addition to his temporary accusation that she only buys
expensive clothing for herself and shops in inexpensive
shops for her children, also the fact that she is never
there. Ostensibly, she has time only on the weekends, and
only occasionally for the children, which is occasionally
spent taking well-mannered walks through Hyde Park. Free
romping and playing, group table games, excursions were
unknown to the child up until now. In contrast, he appears
visibly revived in his report about the school he now
attends. He especially brings out that he, in a short time
after starting school has already befriended several friends
and he enthusiastically tells of his father’s home in the
woods in its secluded location and about playing with his
newly found friends. The senate is, based on the detailed
and intensive conversation with Alexander, convinced of the
fact that this boy is under a great deal of stress. He is
convinced that his mother simply took him and his brother
away. Even more so, he feels abandoned by her in his
foreign surroundings, as he perceives them. [DEL] thinks in
German and has to “translate” in order to make himself
understood, where it despite all of his language skills – as
the example proves – it sometimes leads to
misunderstandings. The child’s entire social sphere is
characterized by foreign languages, since the first nanny
brought in from Hamburg, was fired, German is not only not
spoken at school, but also not spoken at. In view of other
socio-cultural [text illegible].

023 [text missing] in the form of games that are
appropriate for children [DEL] refusal to return to the
mother is entirely understandable. This refusal, in as far
as it can be proven with the evidence available in these
proceedings is not to be attributed to a particular
environment or a passing mood, as is often the case with
young children, nor is it to be attributed by emotional
conditioning by the defendant, or to the child’s vacation
disposition, since vacation ended almost two months ago.
Rather, [DEL] maturely thought out his decision and has
sought with all of his available resources to convince the
senate of the seriousness of his decision. The members of
the senate are not lacking in personal experience in this
matter, because they are all grandfathers and fathers of
children of this age as well. In any event, based on the
object of the decision that is to be reached here, which is
about restitution, not considering [DEL] refusal would be
similar to a crime.

024 The same is conceptually true for his brother. [DEL]
in accordance with his age, is not yet able to express
himself as complexly as [DEL]. But he also expressly and
decisively refuses to return to his mother. It is apparent
with him as well, that he states his own opinion and not one
formed through outside influence. This is displayed through
repeated questioning and comparisons with parts of the
records’ contents. He also bases his decision with the same
circumstances as his brother: in school he felt like an
outsider and no friends [text missing].

025 [text missing] he could only speak English with the
nanny and especially the mother is allegedly never there. On
the contrary, he brings up the new school and told of the
friends that he made in a brief time. Also, [DEL] opinion no
childish mood seems to emerge, rather a level of maturity
that is appropriate for his age. While [DEL] cries, severe
psychological distress is manifested through a striking
motor disturbance that is unusual for his age. For [DEL] his
brother with whom he can speak German, is one of his most
important family members, or at least he was one in London.
He depends on him very much and tells persuasively that they
write to each other from time to time, but suffer one
another for only a brief time.

026 The children spend their spare time together, so that
[DEL] wish not to be brought back to his mother, even In the
light of his close relationship to his brother, warrants
being considered. The secondary decision is from Art. 26
Abs. 2 of the net agreement,  13 a Abs. 1 clause 1 FGG also
from 9 20 Abs. 2 and 3 131 Abs. 3 Kosto.

Completed [signature illegible]
Justice employee [text illegible]

Charter Office of
[text illegible]