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The parents got married in the U.S.A. in September 2014. They had two daughters, one born in December 2015, the other in August 2017. Following the parents’ divorce in 2017 the children lived with their mother. Initially, the parents had joint custody of the two children.

In December 2017 the mother brought forward an allegation of sexual abuse against the father, after he had had access to the children. Following on from this, the parents entered into an agreement, confirmed by the court, in which they continued to have joint rights of custody and the father had rights of access and whereby any move involving the children could only take place with a court decision in the event that the other parent disagreed.

In September 2018 the father then failed to return the children as agreed after an access visit. As a result of this, the court made an emergency decision provisionally awarding the mother sole custody. On 13 December 2018 an oral hearing took place on the issue of custody, although this was adjourned until December 28, 2018. Having applied for the hearing to be postponed, the mother moved the children to Germany. She travelled to London on 26 December and then on to Germany, arriving on the evening of 31 December 2018. In its order dated 31 December 2018, the U.S. Court awarded the father sole custody of the children, and confirmed this decision in an order dated 1 April 2019.

In an order dated 14 November 2019, Karlsruhe Local Court ordered the return of the children (INCADAT Case No 1468).

The mother lodged a Beschwerde [complaint] appeal against this decision.

The court rejected the Beschwerde appeal against the decision and ordered the return of the children.

Removal and Retention - Arts 3 and 12

In the court’s view, Connecticut, U.S.A. was the children’s place of habitual residence before they were taken to Germany and the key factor is the custody situation at the time of the wrongful removal or retention. Consequently, and contrary to what is claimed by the mother, it is not relevant what the custody situation was before the decision was issued on 31 December 2018. At the time the move was completed, on the evening of 31 December 2018, the father had sole rights of custody for the children.

Grave Risk - Art. 13(1)(b)

The court could not see any specific indications that the return to the U.S.A. would in any way represent a grave risk of bodily or mental harm for the children. The Chamber did not share the mother’s view that it is certain that the father had sexually abused one of the daughters. Investigations carried out by the local child protection service showed that the mother’s allegations were without foundation. The report made at the time by the child psychiatric clinic did not confirm the allegations either. Furthermore, the U.S. court, being fully aware of the allegations, confirmed the agreements made by the parents which gave the father joint custody and awarded him unsupervised rights of access.