International Child Abduction

Regarding cases of international child abduction, the central source of global regulation in this area of law derives from the Hague Convention on the Civil Aspects of International Child Abduction. Germany is a member of the Hague Convention, as are over eighty other countries. Other members include, in particular, all members of the EU, the USA, Russia and China.

The central goal of the Hague Convention is the rapid return of children who have been removed from a contracting state. It is emphasised that the respective legal parameters of the contracting states are to be respected concerning custody regulation.

The following points are to be taken into account concerning the Hague Convention:

• It only concerns children under the age of 16.
• Each state has a central authority for issues related to international child abduction. In Germany, this central authority is the Federal Office of Justice in Bonn.
• The central authorities of the states concerned work together to ensure a fair and equitable resolution of the cases.
• The applicant can apply to the central authority of any state party to the Hague Convention.
• The chances of success may be affected if too much time has elapsed, and this delay has resulted in the child settling into their new environment.

Article 19 of the Hague Convention states that an international child abduction case does not address who should have custody of the child. If the parties wish to challenge the current custody status, parties must do this in separate litigation. Cases concerning international child abduction are decided on the question of who had custody at the appropriate time, not on who “should” have custody of the child. This issue is something to bear in mind if you are considering a case involving the return of a child from another country.

In cases involving EU member states, there have been further legal developments in the form of the Brussels IIa Regulation. This regulation ensures that all member states are legally on the same page when it comes to cases of international child abduction. For example, the Regulation provides that decisions in this area will be uniformly recognised by the Member States’ courts unless there are good reasons for not doing so.

In essence, the Regulation reinforces much of the Hague Convention rules and reiterates the requirement that cases be resolved quickly to ensure that the child is returned without delay. The Regulation also states that the judicial process of the case will follow that of the Member State concerned. In this sense, seeking legal assistance from the jurisdiction concerned is beneficial. So if your situation concerns Germany, please do not hesitate to contact our office directly.

While cases involving Germany, EU states, and Hague Convention countries can be relatively straightforward, cases involving other countries regularly present more significant difficulties. The situation is far more complicated when a child has been taken from Germany to a country not part of the Hague Convention (e.g. Nigeria or Afghanistan). In this case, it is strongly recommended that you seek legal advice, as they can help you determine the appropriate course of action. Reliable and competent legal advice that can be relied upon can make a big difference here. In particular, this can clarify who is responsible for the application for the child’s return and how the problem can be approached and resolved. It is essential to consider that the law and culture of the countries can be completely different from the ideas on which German law is based. However, seeking help will ensure you do not face these challenges alone.

Should you seek our services, our lawyers will represent you both in and out of court. We are aware that in such cases, a solution outside the courtroom is often the best solution for all parties involved. If you want an out-of-court answer, we will try to achieve this for you. If court proceedings do occur, it is helpful to look at precedents in this particular area.

For example, in a recent decision of the Higher Regional Court of Celle, an action was brought concerning an abduction from the USA to Germany (case number: 18 UF 171/11). In this legal dispute, the mother initially brought the child to Germany per the agreement. The mother was a German-American citizen, while the father was an American citizen. The child’s stay in Germany had been agreed upon with the father for a period from the summer of 2010 until the beginning of 2012. However, the mother did not return to the USA with the child after this expired period. As a German-American citizen, she wanted to stay in Germany with the child and argued that the child had now settled in Germany. However, the court did not follow this argument as justification for the breach of the agreement.

The child’s mother further argued that the decision that the child should return to the USA would mean that he would be separated from his mother. The court also rejected this argument. The court stated that the mother was not prevented from returning to the USA with the child. The child was eventually returned to the USA. The court’s spokesperson, Dr. Götz Wettich, stated that the father’s rights were “exactly the same as the mother’s” and that it was “a form of vigilante justice” to allow such child abduction.