Return of the child under the HCR – always without exception?

by | Jun 6, 2022 | Divorce Journal, International family law

International child abduction within the meaning of the Hague Convention on Child Abduction (HKÜ) occurs when the child is unlawfully removed to or retained in a Member State and was previously habitually resident in another Contracting State.

Please read our article on the general prerequisites of child abduction as well as on the personal and territorial scope of application of the HCÜ.

The Convention provides for a number of circumstances that may exceptionally entitle the court to refuse the return of the child. The following exclusions are provided for under Article 13 of the Convention:

  • Consent or subsequent authorization of the transfer within the meaning of Art 13(1) HKÜ
  • The return is associated with a serious risk of harm to the child
  • The child opposes the return and has already reached an age or maturity in view of which it seems appropriate to take his or her opinion into account , Art. 13 para. 2 HKÜ

These facts, which justify a defense against the repatriation obligation, are to be presented and proven by the person who invokes them, usually by the allegedly abducting parent.

In detail:

There is no obligation if it is proved that the custodian requesting the return did not actually exercise custody at the time of the child abduction, or consented to the removal or retention, or subsequently authorized it: this refers to the cases with which the rights and obligations legally arising for the applicant from parental custody are not exercised.

Further commitment exists. Not if it exposes the child to an unusually serious risk of physical and / or psychological damage and puts it in a situation that is otherwise unacceptable – this provision is to be interpreted narrowly – the case law places high demands on the fulfillment of the requirements – it is not decisive here whose upbringing and care is in the best interests of the child – rather, it depends solely on whether a serious threat to the child’s well-being occurs as a result of the repatriation: it must be a situation that goes beyond what a child of a comparable age can cope with in a comprehensible way, thus a situation that goes beyond the usual burdens for the child associated with a repatriation.
The threat must be particularly serious, concrete and current, such as abuse or maltreatment of the child.

Already decided examples from practice: in legal practice, the following grounds for refusal are frequently put forward:

  • Risk of abuse or maltreatment of the child in case of return: In this regard, a detailed presentation of objective evidence is required in constant case law – the court must then, in case of proven facts, carry out a probability and risk assessment oriented to the best interests of the child.
  • The child is exposed to domestic violence between the parents in the event of their return. Such a transfer in legal proceedings regularly fails due to the detailed presentation and proof of a severe parental dependence on addictive substances, which is also required here.
  • Sibling separation: only in the case of a sibling separation that cannot be tolerated, this case is affirmed.
  • economic, health or educational disadvantages in the case of repatriation: is regularly rejected, more favorable development conditions in Germany or another country are not sufficient for the presentation

Furthermore, the court may, pursuant to. Art 13(2) HKÜ may refuse to order the return of the child if he or she resists the return, provided that he or she has reached an age and maturity at which it is appropriate to use his or her opinion – the resistance must be serious and of his or her own free will. Again, simply wanting to stay with the abducting parent is not sufficient for this: the resistance must be directed against the repatriation itself.
The age of the child has an indicative effect – due to the different development of children, maturity is to be determined individually: at the age of 14, for example, German case law considers the requirement to be met.

Finally, it should be pointed out that the decision on repatriation has priority and has a blocking effect on other requested decisions:

According to Article 16 of the Convention, courts in the State of refuge may not make a decision on the merits of the child’s custody after being notified of the wrongful removal or retention until it has been decided that the child is not to be returned under the Convention or no application for return has been made within a reasonable period of time (6 months to 1 year).

And last but not least :

The positive decision on the return of the child becomes effective only with legal force, i.e. if no legal remedy in the form of a complaint is filed or decided upon; the execution can be obtained in case of non-compliance with coercive means such as an administrative fine or, however, administrative detention.

Your lawyer Anja Czech

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