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Notes on the return of abducted children and on cross-border conflicts concerning rights of access and rights of custody

Introduction

The growing number of marriages and co-habitation with partners of different nationalities has led to increase in disputes over the rights of custody for children from such relationships. The inclination of parents to leave the country of the joint habitual residence with their child in common without the necessary regulation of the rights of custody and without authority after the separation from the other parent has increased considerably. Both the removal of the children in common to another country, which is often the home country of the abducting parent, and the wrongful retention of the children there, e.g. after holidays, presents the other parent with a fait accompli. For him or her, the question arises how to restore the previous situation as soon as possible by having the child returned.

A comparable conflict situation can arise when the rights of contact of a parent with the child living abroad are refused or made difficult to exercise by the other parent.

The Federal Republic of Germany is a Contracting State of several international conventions that provide regulation for the solution of such international child-related conflicts. In addition there are European legal provisions on this subject; particularly the so-called Brussels II a-Regulation of the European Union that is applicable since 1 March 2005 brings further relief to the parents and children affected.

This page is intended to inform you about the contents of the relevant conventions and the European legal provisions as well as about the role of the Federal Office of Justice as the German Central Authority pursuant to these provisions and in addition to give answers to questions that arise frequently. This information shall serve as first guideline for the parents affected.

I. Regulations in the field of International Family Law

The area of the international family law is subject to the following regulations in Germany:

  • the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (Federal Law Gazette 1990 part II p. 207) – hereinafter referred to as: Hague Child Abduction Convention,
  • the Luxembourg European Convention of 20 May 1980 on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children (Federal Law Gazette 1990 part II p. 220) – hereinafter referred to as: European Custody Convention,
  • the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (Federal Law Gazette 2009 part II p. 602) – hereinafter referred to as: Hague Child Protection Convention, and
  • the Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and the Matters of Parental Responsibility, repealing Regulation (EC) No 1347/2000 (Official Journal of the EU No L 338 p. 1) – hereinafter referred to as: Brussels II a-Regulation.

II. Central Authority

Pursuant to section 3 para. 1 of the Act to Implement Certain Legal Instruments in the Field of International Family Law (PDF, 115KB, accessible file) (International Family Law Procedure Act – IFLPA –), the Federal Office of Justice in Bonn assumes the tasks of the Central Authority for Germany under the international instruments mentioned above.

The address is:

Federal Office of Justice
– Central Authority for International Custody Conflicts –
Adenauerallee 99 – 103
53113 Bonn
Germany
Telephone: +49 228 99 410-5212
Telefax: +49 228 99 410-5401
E-mail: int.sorgerecht@bfj.bund.de
Internet address: www.bundesjustizamt.de/custody-conflicts


In cases falling within the scope of the Hague Child Abduction Convention or of the European Custody Convention, the German Central Authority is entitled to institute proceedings before the competent German courts if necessary. This includes proceedings for obtaining the return of a child which has been abducted to Germany to another country, proceedings for the recognition and enforcement of a foreign custody or contact order or other measures for the protection of children, and proceedings with a view to obtaining a first or new order concerning contact between a child living in Germany and a parent or other person living abroad. Within the framework of these Conventions the Central Authority is deemed to be authorized by operation of law for the purpose of returning the child to take measures in and out of court on behalf of the applicant itself or by way of delegated authority through a representative. Proceedings for access/contact can be instituted by the German Central Authority on behalf of an applicant living abroad if the latter authorizes it to do so. Its authorization to act on its own behalf in order to ensure the compliance with the Conventions remains unaffected, section 6 subsection 2 IFLPA.

The Central Authority initiates all the necessary measures to exercise its duties with the help of the competent authorities. It directly communicates with all the competent authorities in Germany and abroad.

III. Child abduction from Germany across the international frontier

If a parent or another person leaves Germany with a child who has so far been living here and thereby infringes upon a right of custody which applies in Germany, the left-behind parent or any other person or body having rights of custody for the child can assert these rights in different ways. In most cases, the nationality of the child, the parents and the other family members does not play a decisive role.

1. Hague Child Abduction Convention

The aim of the Hague Child Abduction Convention is to protect children from the harmful effects of their wrongful removal to another Contracting State or their retention there. For the moment (January 2015) the Convention has 93 Contracting States. For Germany the Convention is in force today in relationship with 84 other States. The current status – specifically with regard to Germany – is available here. For the status in general see the Internet page of the Hague Conference on Private International Law.

The abducting parent shall be disabled from taking the child abroad in violation of someone else’s rights of custody and from obtaining a judicial or administrative decision on the rights of custody in that jurisdiction. The Convention shall serve to enable a rescission of a wrongful removal or retention of the child in breach of someone else’s rights of custody on the one hand, and it shall take away the incentives for such abductions on the other hand. Accordingly the Convention does neither require possibilities of optimum care for the child as a prerequisite for the return nor a decision about rights of custody. The Convention provides explicitly that a decision under the Convention concerning the return of the child to another State shall not be taken to be a determination on the merits of any rights of custody (Article 19). The sole aim is to return the child as quickly as possible to the State of former habitual residence. However, this does not necessarily include a handover to the other parent. The aim of the Hague Convention is also fulfilled if the abducting parent (who has in most cases also been the primary carer before the abduction) returns to Germany together with the child. It is for the German courts then to decide with whom the child shall live in the future.

If a child is abducted from Germany to another Contracting State the left-behind parent can ask the German Federal Office of Justice for assistance with a view to obtaining the return of the child. Application forms are available from the Central Authority in several languages. They can be downloaded here or asked for by telephone, e-mail or in writing.

The Hague Convention places the Contracting States in obligation to enable the return of the child. An application for return of a child to Germany who was abducted into another Contracting State has adequate chances of success as a rule if the following prerequisites are met:

  • The child is under 16 years old (Article 4, second sentence Hague Child Abduction Convention).
  • The child was habitually resident in Germany immediately before the removal (Article 3 para. 1 sub-paragraph a) Hague Child Abduction Convention).
  • At the time of removal or retention the applicant parent had at least joint rights of custody and actually exercised them until that moment (Article 3 para. 1 sub-paragraph b) Hague Child Abduction Convention), e.g. by having regular, but not necessarily personal contact.
  • The Convention was in force between Germany and the relevant Contracting State at the moment of wrongful removal or retention, Article 35 para. 1 Hague Child Abduction Convention. time to be filed with the competent court of the Contracting State where the child is within one year after the wrongful removal or retention, Article 12 para. 1 Hague Child Abduction Convention. If the application is received later by the competent court of the requested State, the demonstration that the child is settled in his or her new environment will be enough to prevent the return of the child, Article 12 para. 2 Hague Child Abduction Convention.

The application should be submitted as soon as possible, however, not later than in sufficient time to be filed with the competent court of the Contracting State where the child is within one year after the wrongful removal or retention, Article 12 para. 1 Hague Child Abduction Convention. If the application is received later by the competent court of the requested State, the demonstration by the person with whom the child is staying that the child is now settled in his or her new environment will be enough to prevent the return of the child, Article 12 para. 2 Hague Child Abduction Convention.

If the application meets the minimum requirements set out above the Federal Office of Justice shall transmit the application to the Central Authority of the Contracting State where the child was removed to, if need be after having requested missing documents and translations. With regard to translation costs see below under VIII. 1.

The Central Authority in the relevant other Contracting State shall among other things

  • discover the whereabouts of the child without delay, Article 7 para. 2 sub-paragraph a Hague Child Abduction Convention,
  • bring about the voluntary return of the child or an amicable resolution of the issues, Article 7 para. 2 sub-paragraph c Hague Child Abduction Convention,
  • initiate judicial or administrative proceedings with a view to obtaining the return of the child, Article 7 para. 2 sub-paragraph f Hague Child Abduction Convention.

The course of the return proceedings depends on the law of the requested State. That law also determines whether the Central Authority concerned will represent the applicant in court proceedings, whether another body does this and whether a lawyer needs to be designated. The Federal Office of Justice as the German Central Authority shall cooperate with the relevant Central Authority of the other Contracting State to expeditiously resolve the issue, Article 11 para. 1 Hague Child Abduction Convention.

According to Articles 2 and 11 Hague Child Abduction Convention the courts of the Contracting States dealing with return proceedings are obliged to use the most expeditious procedures available. The Convention assumes duration of court proceedings of not more than six weeks per instance, Article 11 para. 2 Hague Child Abduction Convention. In relations between EU Member States, as a rule the so-called Brussels II a-Regulation (see below under 2.) makes this time frame mandatory.

The judicial or administrative authorities of the requested State may exceptionally refuse the return of the child if for example

  • The left-behind parent is not obliged to make use of the assistance of the German Central Authority. He or she is free to apply directly or, if necessary, with the assistance of
  • the left-behind parent did not actually exercise his or her rights of custody at the moment of wrongful removal or retention, Article 3 para. 1 sub-paragraph b Hague Child Abduction Convention,
  • more than one year has elapsed until the application has reached the court and the child is settled in his or her new environment, Article 12 para. 2 Hague Child Abduction Convention,
  • the left-behind parent has consented to or subsequently acquiesced in the removal or retention, Article 13 para. 1 sub-paragraph a Hague Child Abduction Convention,
  • the child who is mature enough to have his or her own judgement seriously objects to being returned, Article 13 para. 2 Hague Child Abduction Convention,
  • there is a grave risk that the return will expose the child to physical or psychological harm or otherwise place him or her in an intolerable situation, Article 13 para. 1 sub-paragraph b Hague Child Abduction Convention. Among EU Member States, however, the return of the child cannot be refused if it is established that adequate arrangements have been made to secure the protection of the child after his or her return, Article 11 para. 4 Brussels II a-Regulation.

The left-behind parent is not obliged to make use of the assistance of the Federal Office of Justice as the German Central Authority. He or she is free to apply directly or, if necessary, with the assistance of a lawyer to the judicial or administrative authorities of the other State. However, in this case it should be kept in mind that the question whether a private person also can appear and be heard in the legal proceedings there or whether he or she needs to be represented by a local lawyer is subject to the relevant law of that State.

2. Brussels II a-Regulation

Since 1 March 2005, the Brussels II a-Regulation applies in relations between EU Member States (with the exception of Denmark), i.e. for Austria, Belgium, Cyprus, the Czech Republic, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden and the United Kingdom. On 1 January 2007, Bulgaria and Romania and on 1 July 2013 Croatia joined as well. In the Regulation, uniform provisions within the European Union are made for cross-border matrimonial matters and matters of rights of custody regarding the question of the courts of which State shall have jurisdiction. Moreover, resulting decisions shall be recognised and – where necessary – enforced also in other Member States of the European Union as smoothly as possible. As far as custody and access/contact orders or other protective measures regarding children in cross-border cases are concerned, the Central Authorities of the relevant Member States shall act in advisory and supportive capacity, particularly in case that a relocation of children to another EU-Member State is envisaged. In these cases, where neccessary the Central Authorities gather information about the situation of the child and his or her situation and about any proceedings that may be pending and exchange them among themselves.

With a view to obtaining a return of the child in the relation with other Member States of the European Union the Hague Child Abduction Convention continues to apply. Since 1 March 2005, however, it is complemented and made more effective by the Brussels II a-Regulation.

The Regulation reinforces the principle contained in the Hague Child Abduction Convention that the court shall order the immediate return of the child. According to the Hague Child Abduction Convention the return of the child may be refused if it involves a risk of physical or psychological harm to the child or if the child would be placed in an otherwise intolerable situation. According to the Brussels II a-Regulation, however, a court cannot refuse to return a child if it is established that adequate measures have been taken to protect the child after his or her return to the State of habitual residence. This provision shall encourage courts before which Hague return proceedings are pending to enter into contact with courts in the other State – either directly or with the assistance of Central Authorities, the parties (normally the parents) or international networks of judges – with a view to securing the protection of the child following return if necessary.

In addition the Regulation reinforces the right of the child to be heard during the proceedings. The court has to give the child the opportunity to be heard unless this appears inappropriate having regard to his or her age or degree of maturity, Article 11 para. 2 Brussels II a-Regulation. The Regulation leaves it to national law whether this hearing shall be undertaken immediately by the court or by other persons, e.g., a social worker who then is heard by the court.

Furthermore the court cannot refuse to return the child unless the person who requested the return of the child has been given an opportunity to be heard, Article 11 para. 5 Brussels II a-Regulation.

The return of an abducted child cannot only be obtained through return proceedings under the 1980 Hague Convention. Hague return proceedings are very quick and do not require that a custody order has already been given in the State of former habitual residence of the child. It is sufficient that taking the child abroad constitutes a breach of rights of custody existing by operation of law, even if these are only joint rights of custody (e.g., where parents have joint custody by operation of law). However, in case there exists a custody order from that State already, granting the left-behind parent sole custody or at least the right to determine the child’s residence alone, or a decision ordering the delivery of the child to this parent, the return of the child can also be obtained by cross-border recognition and declaration of enforceability/registration for enforcement of this decision under the Brussels II a-Regulation.

The Regulation governs the general obligation to recognise and enforce custody and contact orders given in one Member State of the EU in another Member State of the EU (Articles 21, 28). Grounds for refusal are set out in Article 23. Nevertheless, in most cases it will be necessary to seize a court in the State where enforcement is sought with an application to declare the judgment enforceable or register it for enforcement, and to order enforcement measures. In most EU Member States this implies that a person seeking to enforce a foreign order needs to mandate a local lawyer who then institutes enforcement proceedings in the State where enforcement is sought. This is because pursuant to Article 30 para. 2 of the Regulation, the applicant needs at least a representative ad litem in the State where enforcement is sought.

In certain specific cases, the Brussels II a-Regulation moreover provides for a particularly efficient enforcement rule: If the return of the child to Germany has been refused in another EU Member State pursuant to the Hague Child Abduction Convention the Regulation opens the possibility of prompt institution of proceedings about rights of custody in the State of the (former) habitual residence of the child – Germany in this case. If such custody proceedings result in a return order in favour of the parent left behind in Germany which is accompanied by a certificate pursuant to Article 42 of the Regulation, this decision shall be immediately enforced in other EU Member States without any further procedure regarding registration for enforcement or declaration of enforceability (Article 11 paras 6-8 Brussels II a-Regulation).

3. Hague Child Protection Convention

On 1 January 2011 the 1996 Hague Child Protection Convention entered into force between Germany and 25 other States. Meanwhile it applies to 41 States. Like the Brussels II a-Regulation, the 1996 Hague Convention imposes the obligation upon Contracting States to recognise and enforce decisions made in another Contracting State. Among EU-States (with the exception of Denmark), however, the Brussels II a-Regulation continues to apply with regard to the recognition and enforcement of decisions from other EU-Member States; in this respect it prevails over the Convention. The 1996 Hague Convention, however, already encompasses States from all continents – which means that German custody and return orders may be recognised and if necessary enforced on a global level, e.g. in Albania, Armenia, Australia, Denmark, the Dominican Republic, Ecuador, Lesotho, Monaco, Montenegro, Morocco, Russia, Switzerland, Ukraine and Uruguay. The current status – specifically with regard to Germany – is available here. For the status in general, see the Internet page of the Hague Conference on Private International Law.

Where a German custody or return order needs to be enforced in another Contracting State of the Hague Child Protection Convention with a view to obtaining the return of the child to Germany, the order needs to be declared enforceable/registered for enforcement in the State where the child is currently staying. Unlike under the Brussels II a-Regulation with regard to decisions from other EU Member States, the court in the State where enforcement is sought will in these cases also examine whether the German court that made the decision had jurisdiction under the Convention. As a general rule, this is the case if at the time when the order was made the child had his or her habitual residence in the State where the court is located (i.e. in this case in Germany).

4. European Custody Convention

The European Custody Convention which is open for signature by the Member States of the Council of Europe and by other countries (upon invitation), also offers possibilities as regards recognition and enforcement of decisions from foreign States. In relations with the other EU-Member States (with exception of Denmark) the Convention as been largely replaced by the Brussels II a-Regulation (see under 2. above). Therefore, from a German perspective, today it is normally only relevant for the return or the surrender of a child, respectively in relation to Denmark, Iceland, Liechtenstein, the Former Yugoslav Republic of Macedonia, Moldova, Montenegro, Norway, Serbia, Switzerland, Turkey and Ukraine. Denmark, Montenegro, Switzerland and Ukraine are also Parties to the Hague Child Protection Convention which does not prevail over, but applies besides, the European Custody Convention as long as the States concerned have not made a declaration to that effect (Article 52 para. 1 of the Hague Child Protection Convention). Germany, Denmark, Montenegro, Switzerland and Ukraine have not made any such declaration.

The list of Contracting States of the European Custody Convention (currently 37) can be obtained here. It can also be found on the website of the Council of Europe.

5. States with which no international agreements exist

The situation is particularly complicated if no international agreement as regards the solution of such issues exists between Germany and the State where the child is staying. In this case the only possibility that remains normally is to request help from the judicial or administrative authorities of the relevant State and if necessary to employ a local lawyer or to seek support from local non-governmental organisations. With a view to providing relief to the persons concerned, the Hague Conference on Private International Law recommends that each State – including States Parties to the Conventions mentioned above and non-Contracting States – designates a so-called Central Contact Point for Cross-border Family Conflicts which provides assistance to the extent possible. Information on the Central Contact Points abroad can be obtained from the German Central Contact Point for Cross-border Family Conflicts

www.zank.de

and from the Federal Office of Justice. For further information please contact also the Federal Foreign Office.

www.auswaertiges-amt.de

In this connection it shall be kept in mind that the content of the foreign law as well as the form of the judicial or official procedures can differ considerably from the procedures in Germany. Some countries grant no rights of custody at all or only limited rights of custody to mothers as soon as the child has reached a certain age so that the chances of a suit to succeed are very few from the outset.

Information and advice can also be obtained from the Verband binationaler Familien und Partnerschaften (Association of binational families and partnerships). International familiy mediation might be another option. Further information on mediation can be obtained from the charity MiKK e. V. – Mediation in internationalen Kindschaftskonflikten (Mediation in international child-related conflicts) (see further below at IX. 3.).

www.verband-binationaler.de (website mainly in German)
www.mikk-ev.de (website in German, English)

IV. Child abduction to Germany

If a child was abducted to Germany, in principle the same rules as described above apply (see above under III. 1.-4.). The parent left behind abroad can turn to the Central Authority of that other State for assistance. He or she may also contact the German Central Authority or – where appropriate, with the assistance of a German lawyer –, immediately file a return application with the competent German Family Court. Among the more than 600 German family courts, only 22 have jurisdiction in proceedings concerning return, access/contact and recognition and enforcement under the Hague Child Abduction Convention, the Hague Child Protection Convention, the European Custody Convention and the Brussels II a-Regulation in connection with sections 10-12 IFLPA, respectively (the Family Court in the district of which a Court of Appeal has its seat; in Lower Saxony which has 3 Courts of Appeal, only the Family Court Celle). You can find the list of competent German courts here.

Information and advice for both the abducting and the left-behind parent is also offered by the German Central Contact Point for Cross-border Family Conflicts (ZAnK) within the International Social Service (German Branch). International family mediation might be another option. Further information on mediation can be obtained from the charity MiKK e.V. – Mediation in internationalen Kindschaftskonflikten (Mediation in international child-related conflicts) (see further below at IX. 3.).

www.zank.de
www.mikk-ev.de

V. Implementation of rights of access/contact abroad

1. Hague Child Abduction Convention

If a parent lives abroad together with the child in common and refuses contact with the child to the other parent who is resident in Germany, the rights of access/contact can be enforced in a procedure similar to that for the return of a wrongfully removed child (Article 21 Hague Child Abduction Convention). The application can be filed with the Federal Office of Justice. It is important to note, however, that the obligations created by Article 21 of the Hague Child Abduction Convention are interpreted differently in different Contracting States, and therefore the assistance provided by foreign Central Authorities and courts may vary. In particular, a number of States will only provide assistance in cases where a child has been abducted and then contact is sought.

Pursuant to the German interpretation, Article 21 of the 1980 Hague Convention ensures the assistance and support of the Central Authorities of the States Parties to the Convention for applicants. After the application is transmitted to the relevant Central Authority of the other State a right of access/contact can in some States be established for the first time by the competent judicial or administrative authorities or if such rights have already been granted by German courts before, they can be enforced in the other Contracting States of the Hague Child Abduction Convention and the European Custody Convention (see below under 4.).

Where a German contact order shall be enforced in another State, the legal basis for recognition and declaration of enforceability/registration for enforcement cannot be drawn from the 1980 Hague Convention which does not contain any provisions on this issue. Recognition and declaration of enforceability may, as the case may be, be based on the Brussels II a-Regulation, the Hague Child Protection Convention, the European Custody Convention or national law of the requested State (see under V. 2.-5.). Generally, though, the possibilities of foreign Central Authorities to assist in these cases are rather limited. Further information can be obtained from the Federal Office of Justice.

2. Brussels II a-Regulation

The Brussels II a-Regulation shall, among other things, ensure that the child can keep up contact with both parents after their separation, even if the parents will live in different EU Member States in the future. Therefore an enforceable judgment given in a Member State about the rights of access shall be recognised and is enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if it is accompanied by a certificate pursuant to Article 41 para. 1 sub-paragraph 1 of the Regulation. The court of origin may issue such certificate if it has observed certain procedural rules, Article 41 para. 2 Brussels II a-Regulation. This includes, e. g., that all parties concerned and also the child, age and degree of maturity permitting, must have been given an opportunity to be heard. Where the judgment is given in default of appearance the document which instituted the proceedings must have been served in sufficient time and in such a way as to enable the opposing party to defend him- or herself. If this is not the case it has to be established that the party concerned (normally the parent having physical care of the child) unequivocally accepted the court decision.

The party seeking to enforce a contact order has to present a copy of the judgment which satisfies the conditions necessary to establish its authenticity and the certificate pursuant to Article 41 para. 2 Brussels II a-Regulation (Article 45 para. 1 of the Regulation). The order granting rights of access has to be treated like a decision given by domestic courts in the requested State and has to be enforced on equal conditions. The enforcement provisions of a number of States, however, only offer limited possibilities for enforcing a contact order that is not complied with by one party.

If the contact order is not accompanied by a certificate, an immediate enforcement in an EU Member State other that the one where the order was made is out of question. If a party fails to comply with the contact order the other party can apply to the competent authorities of the State where the order has to be implemented (Member State of enforcement) for a declaration of enforceability pursuant to Article 28 et seq. Brussels II a-Regulation. In most EU Member States this means in practice that the person seeking the enforcement of a foreign order needs to mandate a local lawyer who then institutes enforcement proceedings in the State where enforcement is sought. This is because pursuant to Article 30 para. 2 of the Regulation, the applicant needs at least a representative ad litem in the State where enforcement is sought. The courts of this Member State may make practical arrangements for organising the exercise of rights of access, provided that the essential elements of this judgment are respected, Article 48 para. 1 Brussels II a-Regulation.

The Central Authority advises and supports the holders of parental responsibility who want to obtain recognition and enforcement of a judgment in each stage of the proceedings, Article 55 sub-paragraph b Brussels II a-Regulation.

3. Hague Child Protection Convention

The Hague Child Protection Convention also offers possibilities as regards recognition and enforcement of decisions abroad. In relations with the other EU-Member States (with exception of Denmark) the Convention has however been superseded by the Brussels II a-Regulation (see under 2. above) which insofar prevails. The current status – specifically with regard to Germany – is available here. For the status in general, see the Internet page of the Hague Conference on Private International Law.

If a party fails to comply with an existing contact order the other party can apply to the competent authorities of the State where the order has to be implemented (State of enforcement) for a declaration of enforceability/registration for enforcement. Once this has been granted, the order granting rights of access has to be treated like a decision given by domestic courts in the requested State and has to be enforced on equal conditions (Article 28 Hague Child Protection Convention). The enforcement provisions of a number of States, however, only offer limited possibilities for enforcing a contact order that is not complied with by one party.

4. European Custody Convention

The European Custody Convention equally provides for the recognition and enforcement of decisions abroad. In relations with the other EU-Member States (with exception of Denmark) the Convention has been largely replaced by the Brussels II a-Regulation (see under 2. above). Therefore, from a German perspective, today it is normally only relevant for the recognition and enforcement of access/contact orders in relation to Denmark, Iceland, Liechtenstein, the Former Yugoslav Republic of Macedonia, Moldova, Montenegro, Norway, Serbia, Switzerland, Turkey and Ukraine. Denmark, Montenegro, Switzerland and Ukraine are also Parties to the Hague Child Protection Convention (see above under 3.) which does not prevail over, but applies besides, the European Custody Convention as long as the States concerned have not made a declaration to that effect (Article 52 para. 1 of the Hague Child Protection Convention). Germany, Denmark, Montenegro, Switzerland and Ukraine have not made any such declaration.

If a party fails to comply with an existing contact order the other party can apply to the competent authorities of the State where the order has to be implemented (State of enforcement) for enforcement. The courts of this State may make practical arrangements for organising the exercise of rights of access, provided that the essential elements of this judgment are respected, Article 11 para. 2 European Custody Convention. The enforcement provisions of a number of States, however, only offer limited possibilities for enforcing a contact order that is not complied with by one party.

If there exists no contact order yet or if recognition and, where applicable, declaration of enforceability of a contact order in another Contracting State of the European Custody Convention have been refused, the Central Authority of the State concerned may institute proceedings for a new contact order (Article 11 para. 3 European Custody Convention). The Central Authorities of the States concerned will provide assistance in these cases.

VI. Implementation of rights of access/contact in Germany

A parent or other person living abroad who is seeking contact with a child living in Germany can turn to the Central Authority of that other State or to the Federal Office of Justice as the German Central Authority for assistance.

1. New contact order in Germany

If no recent judicial contact order exists yet, the Federal Office of Justice assisted by a lawyer where appropriate can bring proceedings for access/contact before the competent German court on behalf of the applicant living abroad, Article 21 Hague Child Abduction Convention and Article 11 para. 3 European Custody Convention, respectively, in connection with section 6 subsection (2) IFLPA and sections 1684, 1685 of the German Civil Code. As a rule, the German courts will have international jurisdiction if the child is living in Germany. Territorial jurisdiction (venue) is vested in one of the 22 specialised German family courts of first instance if the application is filed by the Federal Office of Justice (sections 11, 12 IFLPA: as a rule the Family Court in whose area of jurisdiction the child was residing upon receipt of the application at the Central Authority). If the person living abroad and seeking contact prefers to bring proceedings (with or without a lawyer) without the assistance of the Federal Office of Justice, section 13 subsection 2 IFLPA leaves a choice of venue between the specialised Family Court for international proceedings which would also be seised by the Federal Office of Justice and the Family Court having jurisdiction pursuant to the general provisions (section 152 of the Act on proceedings in family matters and in matters of non-contentious jurisdiction: the court before which a matrimonial matter is pending at first instance, otherwise the court in whose area of jurisdiction the child is habitually resident; alternatively the court in the district of which the need for care becomes known).

2. Registration for enforcement of a foreign contact order in Germany

If there already exists a foreign contact order, in appropriate cases the order may be enforced in Germany pursuant to the Brussels II a-Regulation, the Hague Child Protection Convention or the European Custody Convention. For further details please refer to the explanations above under V. 2.-4. The Federal Office of Justice as the German Central Authority will provide any assistance possible under the German implementing legislation in these cases.

Recognition and declaration of enforceability/registration for enforcement as such is governed either by the Brussels II a-Regulation, the European Custody Convention or the Hague Child Protection Convention as far as they apply. In these cases, territorial competence exclusively lies with one of the 22 specialised German Family Courts (sections 10, 12 IFLPA).

If the three instruments just mentioned do not apply, recognition and enforcement in Germany might still be possible under German domestic law (sections 86 et seqq., 108 et seq. of the Act on proceedings in family matters and in matters of non-contentious jurisdiction). Here, in most cases the general venue rules will apply. Territorial jurisdiction of the 22 specialised family courts as described above will only be applicable if the other State involved is at least a Party to the Hague Child Abduction Convention and the applicant person is represented by the Federal Office of Justice, based on Article 21 of the Hague Child Abduction Convention.

VII. Cross-border recognition of custody and contact orders

In some cases the parties are not interested in enforcing a custody or contact order by coercive measures in another State. Nonetheless one of them may have a legal interest in a binding statement with effect erga omnes on whether the order will be recognised in another State.

Custody and contact orders made in one EU Member State are in principle recognised in all other EU Member States (except Denmark) by operation of law (Article 21 para. 1 Brussels II a-Regulation). The same applies to decisions from other Contracting States to the 1996 Hague Child Protection Convention (Article 23 para. 1 of that Convention). Each authority presented with a foreign order, however, will then examine whether there are reasons to refuse recognition in a particular case (Article 23 of the Regulation and Article 23 para. 2 of the 1996 Hague Convention contain such grounds). In the interest of legal certainty it is therefore possible to obtain a court decision that states recognition in a legally binding manner (Article 21 para. 3 Brussels II a-Regulation, Article 24 Hague Child Protection Convention). In relation to Denmark, Iceland, Liechtenstein, the Former Yugoslav Republic of Macedonia, Moldova, Montenegro, Norway, Serbia, Switzerland, Turkey and Ukraine this is also possible under the European Custody Convention (Article 4 para. 1 European Custody Convention). The corresponding applications can either be filed directly with the court in the State where recognition is sought or they can be submitted to the Central Authority of Germany (the Federal Office of Justice) or the other State concerned.

Where recognition of a foreign order from another EU Member State (except Denmark) or a State Party to the 1996 Hague Child Protection Convention or the European Custody Convention is sought in Germany, competence lies with the 22 specialised German family courts of first instance. If these international provisions do not apply to the State of origin of the decision and recognition is therefore sought pursuant to German domestic law (sections 107 et seqq. of the Act on proceedings in family matters and in matters of non-contentious jurisdiction), the general venue rules apply (section 108 subsection 3 of said Act: the court in whose area of jurisdiction the opposing party or the person to whom the decision relates is habitually resident or the court in whose area of jurisdiction the interest in a declaration of recognition becomes known or the need for care arises, respectively. See however the exception pursuant to section 13 IFLPA).

Recognition proceedings are particularly numerous for German custody orders in relation to Turkey because Turkish consulates in Germany only recognise a German custody order concerning a Turkish child living in Germany after this decision has been formally recognised by a Turkish court. Application forms and information leaflets in German and Turkish languages are available here.

VIII. Costs

The services of the German Central Authority and the respective Central authorities abroad are free of charge in proceedings pursuant to the Hague Child Abduction Convention, the European Custody Convention and the Brussels II a-Regulation (Article 26 para. 1 Hague Child Abduction Convention, Article 5 para. 3 European Custody Convention, Article 57 Brussels II a-Regulation). The Hague Child Protection Convention allows Contracting States to introduce fees (Article 38 of the Convention) but currently no State is known which would actually be charging such fees.

Concerning additional costs and expenses, one has to distinguish between court proceedings abroad (so-called outgoing applications with an applicant living in Germany) and court proceedings in Germany (so-called incoming proceedings where the applicant lives abroad).

1. Court proceedings abroad

a) Translations

The applicant parent has to bear the necessary translation costs as a matter of principle. Which translations are “necessary“ will depend on the international provisions themselves and/or on what is required by the requested State in the particular case. Applications, communications and other documents under the 1980 Hague Child Abduction Convention, the 1996 Hague Child Protection Convention and the European Custody Convention as a rule have to be transmitted to the authorities of the requested State accompanied by a translation into the language of that State (Article 24 para. 1 Hague Child Abduction Convention, Article 54 para. 1 Hague Child Protection Convention, Article 6 para. 1 European Custody Convention). Pursuant to the Brussels II a-Regulation the court requested to declare the recognition or non-recognition of a decision from another EU Member State or its declaration of enforceability/registration for enforcement can require certified translations of the decision and other documents mentioned in Article 37 of the Regulation. For contact or return orders accompanied by a certificate pursuant to Article 41 or 42 of the Regulation, Article 45 para. 2 of the Regulation requires a certified translation of point 12 of the certificate pursuant to Article 41 relating to the arrangements for exercising rights of access or of point 14 of the certificate pursuant to Article 42 relating to the arrangements for implementing the measures taken to ensure the child's return has to be provided. The Regulation does not contain any further requirements with regard to the need for translations. As a result, normally only additional translations required by the requested State in the particular case are “necessary”.

Where the application is to be dealt with

  • in another State Party to the Hague Child Abduction Convention,
  • to the Hague Child Protection Convention,
  • to the European Custody Convention, or
  • in another EU Member State,

the Local Court at the habitual residence of the applicant in Germany may upon application grant exemption from the obligation to bear the translation costs if the applicant natural person (normally a parent) fulfils the personal and economic requirements for legal aid. In that case the Federal Office of Justice will arrange for the necessary translations to be made at its own expense. Subsequent reimbursement of expenses by the Federal Office of Justice for translations caused by the applicant person him- or herself is not possible.

b) Court proceedings

The court proceedings aiming at the recognition and declaration of enforceability of a foreign custody or contact order in another Contracting State pursuant to the European Custody Convention are free of charge for the applicant parent, with exception of possible expenses for the return of the child, Article 5 para. 3 European Custody Convention. Pursuant to the Hague Child Abduction Convention the court and lawyers’ fees incurred in return and access proceedings are not imposed on the applicant parent either as a matter of principle (Article 26 para. 2 Hague Child Abduction Convention). However, numerous States have made a reservation to the Hague Child Abduction Convention according to which they will only exempt the applicant from the duty to pay the court and lawyers’ fees to the extent covered by their system of legal aid and advice. The same applies in numerous States if a new contact order is sought from a court under the European Custody Convention (Article 11 para. 3 in connection with Article 5 para. 4 European Custody Convention), as well as for proceedings for recognition and a declaration of enforceability/registration for enforcement under the Brussels II a-Regulation or the Hague Child Protection Convention. These States can be found here.

Whether financial support or even exemption from costs is granted depends in many jurisdictions on the financial means of the applicant, sometimes in addition also on the prospects of success of the court proceedings (means and merits test). Further information on individual jurisdictions can be obtained from the Central Authority for International Custody Conflicts within the Federal Office of Justice.

Since not all Contracting States of the Hague Child Abduction Convention and the European Custody Convention outside the European Union know legal aid the court and lawyers’ fees in such States often have to be borne by the applicant parent as a result.

2. Court proceedings in Germany

For the applicant, proceedings for the recognition and/or declaration of enforceability/registration for enforcement of a foreign custody or contact order under the European Custody Convention are exempt from court and attorney’s fees (Article 5 para. 3 European Custody Convention).

For return proceedings under the Hague Child Abduction Convention before German courts, for proceedings for the recognition and/or declaration of enforceability/registration for enforcement of a foreign custody or contact order under the Brussels II a-Regulation or the Hague Child Protection Convention and for proceedings for a first or new German contact order under the 1980 Hague Convention or the European Custody Convention, court and lawyers’ fees are due in Germany as a matter of principle. This applies regardless of whether these proceedings are brought with or without the assistance of the Federal Office of Justice as the German Central Authority. It also applies to other proceedings without the involvement of the Federal Office of Justice that are aimed at obtaining a German custody or contact order in cross-border cases (e.g, where jurisdiction of German courts is based upon the Brussels II a-Regulation or the Hague Child Protection Convention). If and as far as the applicant living abroad is eligible for legal aid, however, these costs and expenses will be borne by the German State. The application for legal aid will be decided upon by the court that will also decide upon the application for return, recognition, declaration of enforceability/registration for enforcement or a new contact application. The granting of legal aid will depend on whether the applicant is in financial need and whether there is a sufficient prospect of success of the application on the merits (so-called means and merits test). An application form with instruction leaflet in German and various other languages is available here.

IX. Safeguards and protective measures, mediation

Protection from international child abduction can only be granted to a very limited extent since the reasons for this are so manifold.

In addition to individual safety measures by the court in cases where the child abduction can be specifically expected some general protective measures can be taken by agreement which at least can strengthen the legal position of the parent fearing abduction.

1. Safeguards ordered by the court

If certain facts give reasons to believe that a parent intends to leave Germany with the child, the other parent may apply to the Local Court for an interim measure, ordering, e.g.,

If certain facts give reasons to believe that a parent intends to leave Germany with the child, the other parent may apply to the Local Court by way of interim measure, e.g.,

  • to transfer the rights of custody solely to him or her,
  • to transfer the right to determine the child's place of residence solely to him or her,
  • to transfer the right to determine the child's place of residence solely to the Youth Welfare Office,
  • to prohibit the other parent from changing the actual place of residence without approval by the court,
  • to impose on the other parent to hand over the child's passport to the Youth Welfare Office or to the court,
  • in case of a child having foreign nationality, to inform the diplomatic or consular mission of the State of the child's nationality about the deposit of the passport and to ask the mission not to issue a substitute travel/identification document before a final court decision has been made,
  • for the actual place of residence of the child to be temporarily in a neutral institution,
  • to have a call for a border alert for the territory of the so-called Schengen States (Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland).

The border alert shall be issued by the Federal Police Central Office (Bundespolizeipräsidium), Heinrich-Mann-Allee 103, 14473 Potsdam, upon request by the Local Court. The request has to be based on a concrete and apparent risk that the other parent or any other person intends to wrongfully remove the child to another country. The Federal Police Central Office may then have the alert for the child to be traced or taken into custody entered into the Schengen Information System (SIS), for search measures to be initiated. The alert concerning the abducting parent (for checking purposes) will be entered, as an accompanying search measure, in the protected border search data base.

2. Protective measures by agreement

In case of marriages between different nationals the situation of the women as regards the rights of custody, e.g. for Muslim countries, might be strengthened among other things by means of a marriage contract. Thus in case of conflict the legal position before foreign judicial or administrative authorities can be strengthened.

However, the parties should keep in mind that in order to achieve this purpose, the marriage contracts frequently have to comply with the form requirements of the State where rights are to be asserted from them.

In appropriate cases, further information can be requested from the embassies and consulates of the relevant States in Germany. Information and advice can also be obtained from the Central Contact Point for Cross-border Family Conflicts (ZAnK) as well as from the Verband binationaler Familien und Partnerschaften (Association of binational families and partnerships) and the International Social Service (German branch):

www.zank.de
www.verband-binationaler.de (website mainly in German)

3. Mediation

Especially in family cases, the possibility of parents trying to find a solution for their conflict with professional assistance by way of a family mediation should be considered. Within such framework the parents who have a cross-border dispute over their children are offered the opportunity to look for a solution for their conflict themselves with the help of a binational pair of mediators.

A binational co-mediation, which is carried out jointly by two mediators together, would be especially appropriate where this could help to better guarantee the neutrality or the understanding for the concerns of both parties. As a rule, the team of mediators consists of a male and a female mediator, one of them from the legal professions and the other with a psychosocial professional background. The different cultural and linguistic origin of both parents shall likewise be reflected in the co-mediators.

If the parties involved in a cross-border conflict relating to custody or contact – normally the parents – indicate an interest in mediation, the Federal Office of Justice will co-operate closely with MiKK e.V., a non-profit organisation which provides support and advice with regard to mediation in cases relating to international child abduction, custody and contact conflicts. For further information see the website at

www.mikk-ev.de (website in English)

In proceedings instituted by the Federal Office of Justice as German Central Authority for International Custody Conflicts pursuant to one of the legal bases mentioned above, MiKK e. V. can, e.g., find suitable mediators, organise rooms for mediation and set up mediation as such in practical terms. All this happens in close co-ordination with the Federal Office of Justice which in turn liaises directly with the competent court in order to ensure that no undue delay is caused by mediation and that the results achieved can be incorporated directly into the court order where appropriate. Like this they are later enforceable and can be implemented by coercive measures if one party does not comply with the agreement achieved.

General information and advice on mediation can also be obtained from the Federal Central Contact Point for Cross-border Family Conflicts (ZAnK):

www.zank.de

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