CASE

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Case Name

Lipkowsky and McCormack v. Germany (Application No 26755/10)

INCADAT reference

HC/E/DE 1201

Court

Name

European Court of Human Rights

Level

European Court of Human Rights (ECrtHR)

Judge(s)
Peer Lorenzen (President); Karel Jungwiert, Mark Villiger, Mirjana Lazarova Trajkovska, Zdravka Kalaydjieva, Ganna Yudkivska, Angelika Nußberger (Judges); Claudia Westerdiek (Section Registrar)

States involved

Requesting State

AUSTRALIA

Requested State

GERMANY

Decision

Date

18 January 2011

Status

Final

Grounds

European Convention on Human Rights (ECHR)

Order

-

HC article(s) Considered

13(1)(b) 12(2)

HC article(s) Relied Upon

-

Other provisions

-

Authorities | Cases referred to
Neulinger and Shuruk v. Switzerland [GC], No 41615/07, 6 July 2010; Mattenklott v. Germany (dec.), No 41092/06, 11 December 2006; Tiemann v. France and Germany (dec.), nos. 47457/99 and 47458/99, ECHR 2000 IV; Bayerl v. Germany (dec.), No 37395/08, 13 October 2009; Olsson v. Sweden (No 2), 27 November 1992, Series A No 250; Hokkanen v. Finland, 23 September 1994, Series A No 299 A; Maumousseau and Washington v. France, No 39388/05, ECHR 2007 XIII; Meyer-Falk v. Germany (dec.), No 47678/99, 30 March 2000; Paradis v. Germany (dec.), No 4065/04, 4 September 2007; Maire v. Portugal, No 48206/99, ECHR 2003 VII.

INCADAT comment

Inter-Relationship with International / Regional Instruments and National Law

European Convention of Human Rights (ECHR)
European Court of Human Rights (ECrtHR) Judgments

Exceptions to Return

Protection of Human rights & Fundamental Freedoms
Protection of Human rights & Fundamental Freedoms

SUMMARY

Summary available in EN

Facts

The application related to a child born in April 2005 to a German mother and an Australian father. The parents were not married and, both before and after the birth, the mother moved between Germany and Australia. In Australia she lived with the father of the child.

The child was born in Germany, and in February 2006, the mother and child went to Australia. They subsequently returned to Germany for two periods, between June and September 2006 and between January and June 2007.
The parents separated in September 2007 and thereafter mother and child moved into a women's refuge. The father deposited their passports with an Australian court and commenced custody proceedings.

On 8 May 2008 the Federal Magistrates Court of Australia provisionally ordered joint legal custody and allowed the mother to take the child to Germany from late June till mid October. On 15 June mother and child travelled to Germany. They did not return to Australia.

On 5 August 2009 the father made an application to Karlsruhe District Court for the return of the child. A return order was made on 21 September, with provision made for direct enforcement. On 18 March 2010 the Karlsruhe Court of Appeal, after hearing the parents, the curator ad litem and the child and having obtained an expert opinion on the mother's ability to return to Australia, rejected the mother's appeal and confirmed the District Court's decision.

On 8 April 2010 the Federal Constitutional Court refused to admit the mother and child's constitutional complaint for adjudication, finding that there was no appearance of a violation of their fundamental rights.

The lower courts' decisions had been based on a permissible interpretation of Article 12(1) of the 1980 Hague Child Abduction Convention, in so far as they had found that the provision allowed the person who had wrongfully removed or retained the child could be obliged to return the child personally. The hardships of such an interpretation for the parent being ordered to return the child had to be accepted as the consequence of the illegal abduction or retention.

On 19 July 2010 the Karlsruhe Court of Appeal after hearing the parents, the child's curator ad litem and the Youth Office, again pointed out to the mother the possible consequences of non-compliance, namely the imposition of a coercive fine or coercive detention or the direct enforcement of the obligation.

Ruling

Application inadmissible; all elements of the complaints were found to be manifestly ill-founded.

Grounds

European Convention on Human Rights (ECHR)

Article 8 of the European Convention on Human Rights (ECHR) - Right to Private and Family Life:
Mother and daughter complained to the European Court of Human Rights (ECrtHR) under various Articles of the ECHR (2, 5, 6, 7 and 8) about different aspects of the domestic courts' decisions ordering them to relocate to Australia. In particular they complained about 1) the obligation of the mother to return the child personally to the father in Australia or - in case of non-compliance - to 2) hand over the child to the father or to a person named by him for the return of the child.

The ECtHR ruled that all the complaints fell to be examined under Article 8 of the ECHR. The Court noted that Article 8 of the ECHR was applicable, the domestic decisions having interfered with the applicants' rights under Article 8, "be it due to the possible difficulties of continuing to live together or to the inherent obligation to relocate to another country."

"As regards the lawfulness of the interference, the Court observe[d] that the domestic courts [had] based their decisions ... on the Hague Convention, which ha[d] been incorporated into German law." The Court further found that the domestic courts' interpretation of the Hague Convention was compatible with the Convention and that the decisions thus had a legal basis in national law.

The Court equally noted that "the domestic courts' decisions ... pursued the legitimate aim of protecting the rights and freedoms of the [child] and father."

The Court then turned to the issue as to "whether the interference with the applicants' rights was "necessary in a democratic society" within the meaning of Article 8(2) of the Convention." The Court found that the domestic courts could not be said to have overstepped their margin of appreciation in ordering the mother to return her daughter.

The Court noted the mother's argument that she "was unable to relocate to Australia because she was suffering from multiple sclerosis...". It noted that the Court of Appeal had dealt with this issue in depth, had heard the mother's arguments and had obtained an expert opinion - the Court of Appeal had then found that there were no grounds which made the mother's return impossible. The Court held that there was no reason to depart from this finding.

The Court accepted that the mother had been ordered to return the child personally in order to prevent any harm to the child's well-being. The Court noted that it had previously "considered the possibility of an abducting parent's accompanying the child an essential element in this context" (see Maumousseau and Washington v. France (Application No 39388/05) [INCADAT Reference: HC/E/ 942].

"Against this background, and bearing in mind that the child's best interests must be the primary consideration ..., the Court [found] that the domestic courts [could] not be said to have overstepped their margin of appreciation in ordering the [mother] to return her daughter."

Turning to the applicants' complaint that return to Australia would take them away from their "secure social and medical situation", and that the "obligation was disproportionate", as they had already been living in Germany for two years, the Court held that that these arguments in essence concerned the question whether the domestic courts had correctly applied the Hague Convention exceptions to return.

The Court reiterated that the exceptions must be interpreted strictly. "The aim [of the Hague Convention was] to prevent the abducting parent from succeeding in obtaining legal recognition, by the passage of time, of a de facto situation that he or she had unilaterally created."

Whilst it was not the "task [of the Court] to take the place of the competent authorities in examining whether there would be a grave risk [of harm]", it was "competent to ascertain whether the domestic courts, in applying and interpreting the provisions of the [Hague] [C]onvention, [had] secured the guarantees set forth in Article 8..., particularly taking into account the child's best interests." In this, time was an important element to be taken into account.

The Court noted there was "nothing to suggest that the decision-making process which led the domestic courts to [make a return] order... had not been fair or had not allowed the applicants to present their case fully." Consequently, in this respect also, "the domestic courts could not be said to have overstepped their margin of appreciation in ordering the applicants' return."

Turning to the second option for the return of the child - were the mother not to return herself - the Court reiterated its established position that whilst "coercive measures against children [were] not desirable in this sensitive area, the use of sanctions must not be ruled out in the event of manifestly unlawful behaviour by the parent with whom the child live[d]."

The Court noted that the domestic courts had not addressed the question whether such coercive measures would harm the child's well-being. They had "simply based their findings on the assumption that the [mother] could be expected to accompany her daughter" personally and thus ensure the child's well-being. The Court held that "[i]n the light of Article 8... such an omission would ... represent a serious deficiency in the domestic proceedings if the second option could be directly enforced against the [child]."

However, it noted that the Court of Appeal had "expressly pointed out that direct enforcement of the second option required an additional explicit court decision and would be admissible towards a child only where this was justifiable with a view to the child's well-being and where no less restrictive measures were available to enforce the obligation."

The Court concluded that, having regard to the margin of appreciation enjoyed by the authorities in such matters, "the decision to return was based on relevant and sufficient grounds for the purposes of [Article 8(2)], considered in the light of the Hague Convention, and that it was proportionate to the legitimate aim pursued." The complaints were therefore manifestly ill-founded, and must be rejected.
 
Possible Coercive Detention of Mother:

The mother complained under Articles 5, 7 and 8 of the ECHR "about the possible imposition of coercive detention against her and argued that neither the Hague Convention nor German law allowed the imposition of such a measure against the mother of an abducted child."

The Court "consider[ed] that the possible imposition of coercive detention may raise an issue under Article 5 and 8", but that the complaint under Article 5 of the ECHR was manifestly ill-founded as detention had merely been threatened.

The complaint under Article 8 of the ECHR was inadmissible as the impugned measure had a sufficient legal basis, pursued the legitimate aim of protecting the rights and freedoms of the child and father, and was intended solely for use in the event of non-compliance with the court's decision and, moreover, required an additional explicit court decision against which further remedies would be available.

Author of the summary: Peter McEleavy

INCADAT comment

European Court of Human Rights (ECrtHR) Judgments

Protection of Human rights & Fundamental Freedoms

Preparation of INCADAT commentary in progress.