Bundesverfassungsgericht, 2 BvR 1126/97, 18 July 1997

INCADAT legal file Hague parental abduction

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The children, two boys, were 7 and 6 respectively at the date of the alleged wrongful removal. Until then they had lived in Argentina all of their lives. The parents divorced in 1994 and the mother was awarded custody. However, under s. 264 (4) of the Argentinian Civil Code, even after a divorce, the agreement of both parents is required if children are to leave the country.
On July 8, 1996 the mother obtained an order from the Mendoza family court to take the children to the USA for a two week vacation. The mother did not return, instead she took the children to Germany. The father initiated criminal proceedings against the mother for child abduction in Argentina.
On 27 December 1996 of the Family Court in Mendoza granted the father custody of both children. The father then petitioned to the Family Court (Familiengericht) of Heilbronn for the return of the children under the Convention. The application was rejected on 4 March 1997 on the basis that the children would face a grave risk of psychological harm if sent back (Family Court (Familiengericht) of Heilbronn, 5 F 319/97).
The father appealed to the Higher Regional Court (OLG) of Stuttgart. On 26 May 1997 it upheld the appeal and ordered the return of the children, (Higher Regional Court (OLG) of Stuttgart, 17 UF 98/97). The mother petitioned the Federal Constitutional Court for leave to make a constitutional challenge.