Karlsruhe Higher Regional Court
8 January 2010
Derechos de custodia - art. 3 | Grave riesgo - art. 13(1)(b)
Apelación concedida, restitución ordenada
The Applicant father and Respondent mother were married and lived together in England with their three children – two daughters, born on 1 March 2001 and 27 July 2005, and a son, born on 11 November 2003. The parents had joint custody of the children. In February 2009, without the prior knowledge of the father, the mother left England with the children with the intention of moving to Germany. Later in 2009, the children were taken into the care of the High Court of Justice and it was ordered that the mother return the children to the UK. In July 2009, the father made an application for return.
In July 2009 the mother filed a criminal complaint against the father, accusing him of having sexually abused and assaulted the two older children. In August 2009 the father was arrested. The return application was rejected on the grounds that the return would place the children in an intolerable situation as the father was currently in remand detention in England. The father was released on 17 September 2009. In September 2009, the father immediately made an immediate complaint appeal against the decision rejecting the return. In October 2009 the investigation proceedings in Germany were discontinued . The children’s mother filed a complaint against the decision to discontinue the proceedings.
The immediate complaint appeal was approved and the father’s application for a return was successful.
The accusations made against the father, which led to a rejection of the return application in accordance with Article 13(1)(b) of the Hague Child Abduction Convention by the court of first instance, were not held to have been proven.
However, the court refrained from ordering the immediate surrender of the three children to the father, and has instead opted for a “graduated return order”. The “graduated return order”, granted the mother the opportunity to effect the return of the children herself. The Hague Child Abduction Convention does not contain any explicit rules on how exactly the courts are to order returns. Determining the operative provisions of the return order is a matter of domestic procedural law.
The parents had joint custody in accordance with Section 2(2) of the Children Act 1989. The “Wardship Jurisdiction” exercised by the High Court did not supersede the custody rights of the father.
The court rejected the complainant’s arguments that returning the children would subject them to a severe risk of physical or mental harm. The Respondent was not able to prove her claims that the father had paedophilic tendencies and had sexually assaulted the children. The court advised that Article 13(1)(b) had to be interpreted restrictively.
Furthermore, the court stated that it is not necessary to await the outcome of the criminal case. It emphasized that pursuant to section 38 IntFamRVG the court shall treat proceedings for the return of a child as a matter of priority at all instances and there shall be no stay of the proceedings
The court was also not convinced by the mother’s claim that the children were afraid of their father and did not wish to return to him or to any place nearby. The court stated that abducting parents can be expected to counter a potential risk to the children’s development by returning with them even when facing disadvantages themselves.