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AFFAIRE

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Nom de l'affaire

2 BvR 1206/98, Bundesverfassungsgericht, 17 August 1998

Référence INCADAT

HC/E/DE 600

Juridiction

Pays

Allemagne

Degré

Autre

États concernés

État requérant

France

État requis

Allemagne

Décision

RÉSUMÉ

Résumé disponible en EN

Facts

The proceedings related to two children, a boy and a girl, born in 1990 and 1994. The children were born to a French mother and a German father but had lived in Germany all their lives. The parents were separated and had joint rights of custody.

On 17 February 1997, in a custody hearing in Germany, the mother stated that she would not leave the jurisdiction before a final decision was delivered. Notwithstanding this, on 7 July 1997, she took the children to France, her State of origin.
The German Court subsequently granted the father the right to determine the children's residence. It also ordered the return of the children to Germany.

In the meantime, using the 1980 Hague Child Abduction Convention, the father applied for the return of the children before the French courts. His application was rejected at first instance and upon appeal. The French courts found the removal wrongful but refused to order the return of the children on the ground that yet another change in their living conditions would place them "in an intolerable situation" (Article 13(1)(b) of the 1980 Convention). The father appealed to the Cour de Cassation.

Notwithstanding the fact that the case was still pending before the Cour de Cassation, on 28 March 1998 agents acting for the father forcibly removed the children to Germany.

The mother applied in Germany for the return of the children. At first instance, her application was rejected. The mother appealed. On 9 July 1998, the Higher Regional Court (Oberlandesgericht) of Celle ruled that the removal was wrongful and ordered the return of the children to France. It stated that the habitual residence of the children was France where they had lived for 9 months, went to school or kindergarten, and were well integrated.

On 15 July 1998 the father appealed against the decision of the Higher Regional Court to the Federal Constitutional Court (Bundesverfassungsgericht) in his own right, as well as on behalf of the children, on the basis that his and the children's constitutional rights had been breached. Before deciding on the merits of the case, the Constitutional Court ordered, by way of provisional measure (einstweilige Verfügung), the non-enforceability of the decision of 9 July 1998.

The mother appealed against the temporary injunction. In her appeal, she also put forward that the constitutional complaint filed by the father on behalf of the children was not admissible.

Ruling

Appeal dismissed; the Court confirmed the provisional measure rendering the decision taken by the Higher Regional Court not enforceable until the Court had decided on the merits of the case in the main proceedings.

Grounds

Procedural Matters

The Federal Constitutional Court ruled that the constitutional complaint filed by the father was admissible; this justified the issuance of the provisional measure preventing the enforcement of the return decision taken by the Higher Regional Court. The non-enforceability of the decision provided legal certainty until the Federal Constitutional Court had ruled on the merits of the case in the main proceedings.

The Court further noted that it could be decided in the main proceedings whether the constitutional complaint filed by the father on behalf of the children was also admissible.