CEDH · CASELAW;CLIN;ENG — 15 mai 2003

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Germany (dec.) - 4783/03 Decision 15.5.2003 [Section III] Article 8 Article 8-1 Respect for family life Order by court to return children to their father abroad under the Hague Convention: inadmissible The applicants are a mother and her four children, aged between 7 and 18. In 1994, the first applicant, P., married a Canadian national, O., and moved from Germany to Canada with her daughter. Three children were born to the marriage. In February 1997, P. left the family home with her children and went to a women’s refuge. O. was granted temporary custody of his three children, who went to live with him. In December 1998, P. was granted permanent sole custody of these children. The court made detailed arrangements for access by O. and his parents. It stipulated that P. was allowed to take the children to visit their German grandparents for visits of no more than two weeks’ duration. In June 2000, P. travelled to Germany with her children and did not return. In August 2000, she filed for divorce in Germany and requested sole custody of her children by O. The following month, the Canadian court sentenced her to thirty days’ imprisonment for contempt and awarded sole custody to O. In September 2001, the Zweibrücken District Court rejected O.’s request for the return of his children under the Hague Convention. It held that as P. had had sole custody at the time of her refusal to return to Canada, Article 3 of the Hague Convention had not been violated. It considered that the applicability of the Hague Convention where the other parent’s custody rights were limited was controversial. In June 2002, the Canadian court certified that the removal of the children from Ontario and refusal to return them was wrongful within the meaning of Article 3 of the Hague Convention. The Palatinate Court of Appeal ordered an expert opinion to determine the true wishes of the children. The expert found that the children’s unwillingness to return to their father was only partly based on their mother’s animosity towards him. The Court of Appeal ordered the return of the children, authorising the bailiff to use the necessary force. It considered that there was no risk of exposing them to harm or placing them in an intolerable situation (Article 13 Hague Convention). It found P.’s various submissions about O.’s violent behaviour unsubstantiated and did not see why she lacked trust in the Canadian authorities to protect her and her children. The refusal of the children to return could not be decisive. The Federal Constitutional Court refused to entertain the complaint lodged by P. on behalf of the children. In January 2003, the Zweibrücken District Court ordered the execution of the Court of Appeal’s decision, on condition that O. request the Canadian court to refrain from executing the sentence against P. and that he make adequate financial provision for P. and the children. The General Prosecutor in Ontario agreed to withdraw all criminal charges pending against P. if she returned with her children to Canada. In March 2003, the bailiff arrived to enforce the decision, accompanied inter alios by O. The attempt was abandoned. O. requested authority for the bailiff or for himself to use force. This was granted by the Court of Appeal, which assumed that the children would quickly adapt to Canada, even if forcibly brought there. It did not accept P.’s argument that the passage of time had changed the situation. In April 2003, the Federal Constitutional Court refused to entertain the constitutional complaint of the three children about the Court of Appeal’s ruling. The District Court then ordered the bailiff to enforce the return of the children, giving him the right to search P.’s premises, with police help if necessary. The competent Youth Office was also ordered to assist. Inadmissible under Article 8: The return of the children to Canada would involve at least a temporary separation from their mother, thereby interfering with the applicants’ family life. The legal basis was the Hague Convention, which is applicable within the German legal order.   The aim of the interference was to protect the rights and freedoms of others. As for its necessity, the German authorities were required under the Hague Convention to return O.’s children to Canada once it had been established that they had been wrongfully removed from that jurisdiction. The Court of Appeal had heard P. and two of the children and gave detailed reasons for its decision. Its assessment was not arbitrary, and it took adequate account of the children’s interests. Having regard to the authorities’ margin of appreciation, the interference complained of was not disproportionate to the legitimate aim pursued. Although there was a risk of P. being separated from her children on returning to Canada, it was of paramount importance that the illegal retention of the children in Germany be brought to an end. P. had Canadian legal remedies at her disposal to defend her interests and those of her children. Regarding the authorisation of the use of force, while coercive measures against children are not desirable, their use cannot be ruled out in the event of unlawful behaviour by one parent. The measures permitted were therefore not disproportionate to the aim pursued. As for the procedural requirements inherent in Article 8, there was nothing to suggest the proceedings were unfair or failed to involve the applicants to a degree necessary to protect their interests: manifestly ill-founded.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes