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Mutual agreement is better

03.08.2017 - Article

Foreign law regulates many things differently than German law.

The options of German missions abroad are particularly limited if the children abducted are also nationals of the state in which they are staying. The authorities there will then regard and treat the children exclusively as citizens of that country. Whether or not the children also have German nationality is completely immaterial. This position is taken by all states (including Germany). Provision of assistance by the German missions abroad is therefore virtually ruled out and in practice nearly impossible. This applies above all in those cases in which abducted children have been taken to an Islamic country.

Family law and legal practice in Islamic states assigns primary responsibility for children to the father; as a rule, it is also the father who alone determines in which country and with which persons the children are to grow up. Even though the Islamic view of the relationship between men and women does not observe the principles governing German family law, it must be respected. Efforts by a mother to bring an action for custody of her child in a court in an Islamic country usually have little prospect of success, especially if she is a foreigner and not a Muslim. Only if the father has grossly neglected his duties – by failing to take care of his child, for instance – does the mother have a slightly better chance in some Islamic states.

But even winning custody does not necessarily enable the mother to achieve her goal of taking the child back to Germany. Should she exceptionally be awarded the right of custody, she might only be able to exercise this right in the foreign country at the father's place of domicile, for in most cases the child may not leave that country without the express consent of the father. A German passport or child's identity card does not help to resolve this problem.

Out-of-court solutions

In view of the difficulties described above and given the uncertain outcome of court proceedings in a foreign country, a consensual settlement between the parents should be sought if at all possible. Careful consideration must be given to the question of whether time-consuming and costly recourse to the courts is simpler than a meeting of the parents – if necessary with the participation of persons in a position of trust or counselling services – during which both, notwithstanding their personal differences, let themselves be guided by the best interests of the common children. Legal positions – no matter how clear they may be from a German standpoint – are often irrelevant for all practical purposes. Decisions of German courts are useless if they cannot be enforced abroad. Other states claim the sovereign right to take decisions on their own territory through their own authorities and courts, just as Germany does.