Bundesverfassungsgericht, 2 BvR 1206/98, 29 October 1998

INCADAT legal file Hague parental abduction

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The children, a boy and a girl, were 6 2/3 and 3 respectively at the date of the first alleged wrongful removal. They had until then lived in Germany all of their lives. The parents were separated and had joint rights of custody.
On 17 February 1997 in a custody hearing in Germany the mother stated that she would not leave the jurisdiction before a final decision was delivered. Notwithstanding this, on 7 July 1997 she took the children to France, her State of origin.
The German court subsequently granted the father the right to determine the children’s residence. It also ordered the return of the children.
The father petitioned the French courts for the return of the children under the Convention. At first instance and appeal the application was rejected on the ground that yet another change in their living conditions would place the children in an intolerable situation as envisaged by Article 13(1)(b). The father appealed to the Cour de Cassation.
Notwithstanding the appeal on 28 March 1998 agents acting for the father forcibly removed the children to Germany. The mother then petitioned in Germany for the return of the children. At first instance her application was rejected.
The mother appealed. On 9 July 1998 the Higher Regional Court (OLG) of Celle ordered the return of the children to France.
On 15 July 1998 the father appealed to the Federal Constitutional Court in his own right and on behalf of the children on the basis that his and the children’s constitutional rights had been breached.