Bundesverfassungsgericht, 2 BvR 420/99, 9 March 1999

INCADAT legal file Hague parental abduction

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The case concerned two children born in 1993 and 1995. The family lived in Sweden and the parents had joint custody. The parents separated a first time in February 1997. The father permitted the mother to take the children to Germany. However, pursuant to the mother’s admission to hospital in June, the father returned the children to Sweden. It was not clear whether the mother had agreed. However, she returned to the family residence in Sweden in July.
The parents separated again in February 1998. The mother found accommodation in the same area and reported it as her and the children’s residence. The parents tried out a system of shared custody, but this upset the children. In late March 1998, the mother took the children to Germany for a stay due to last two weeks. She eventually decided to remain there permanently and applied for sole custody of the children. The father applied for return of the children to Sweden.
The return was ordered at first instance and on appeal, on the grounds that the retention was wrongful and none of the exceptions applied. The Court of Appeal dismissed the mother’s plea that the father’s return of the children to Sweden in 1997 was itself a wrongful removal. The mother had resumed cohabitation and even reported the children as being resident in a Swedish locality after the second separation. There had been no return application. The mother entered a constitutional appeal.