The Federal Foreign Office and the German missions abroad (embassies and consulates-general) are often asked for help when children are abducted across borders. The majority of such cases occur in the context of binational marriages or partnerships; when the relationship fails or after divorce the foreign father or mother takes one or more of their common children to his/her home country against the will of the German parent or keeps the child or children there after a holiday against the will of the other parent. Very often the children are left in the custody of family members living there. The rights of (joint) custody of the German parent are regularly infringed in these cases, any decisions already taken regarding rights of custody are ignored and rights of access abused.
The abduction of minors is punishable pursuant to section 235 of the German Criminal Code. The prerequisite for criminal prosecution is an application by the person whose parental rights have been infringed. An exception to this requirement can be made inter alia if the law enforcement agencies (public prosecution office) consider it necessary to intervene for special reasons of public interest. However, experience shows that measures under criminal law or police action alone only help achieve the desired objective in rare cases.
In other countries, too, child abduction may be punishable under national law. German fathers and mothers can therefore also be guilty of child abduction if they, against the will of the foreign father or the foreign mother or in violation of a decision by a foreign court, return to Germany with the common children. Such cases are not punishable under German law. However, if the state concerned issues an international warrant for the German parent’s arrest, the possibility that a third country will implement this request cannot be ruled out. That may then result in an arrest in a third country followed by extradition to the country from which the child was taken.
Repatriation of a child from an HCCAICA Contracting State
If your child has been taken to a Contracting State to the Hague Convention on the Civil Aspects of International Child Abduction, the Federal Office of Justice can help.
Special regulations in European Union member states (with the exeption of Denmark)
Under Council Regulation (EC) No. 2201/2003 (Brussels IIA Regulation), which has been in force since 1 March 2005, replacing Council Regulation (EC) No. 1347/2000, all decisions on parental responsibility including measures to protect the child, regardless of whether there is any link with a matrimonial proceeding or whether the children belong to both spouses, shall be automatically recognised in the other EU member states (with the exception of Denmark) without the need for a special recognition procedure.
The decision is in the hands of the courts.
In cases of international child abduction, the Federal Foreign Office and the German missions abroad have no legal means and in practice only very limited real means of helping secure the abducted child's return to Germany. Issues relating to custody and the child's place of residence are decided by the judiciary, i.e. the courts, in all countries of the world. That also applies to arrangements concerning rights of access.
In states governed by the rule of law and the separation of powers it is not usually possible for the country’s government to interfere with the administration of justice. This is the case even if the German mission or the German Government asks that government to help and given the good political relations between the two countries it would like to do so. If the situation were reversed, the Federal Foreign Office or the German Government would have no choice but to refer to the independence of the courts. After all, a disagreement between a married couple or divorced parents as to who should have custody of their common children is a private (family law) matter, not a foreign policy issue.
Types of legal proceedings
As is the case in Germany, the police of a foreign state cannot act solely on the basis of a decision handed down by the court of another country. In principle, there are two possible legal options. It is wise to discuss these options with a lawyer to determine which is the most promising.
If a decision has been handed down by a German court concerning the right of custody of a child and the right to determine the child's place of residence, the duly entitled parent can attempt to have this decision recognised and declared enforceable by the court of the country to which the children have been taken. Without the successful conclusion of these proceedings, a German court decision is not binding in the foreign country.
Another option is to bring an action for custody of the children before the competent court in the state to which the children have been taken with the aim of securing their return on the basis of the ruling by the foreign court.
The Federal Foreign Office’s experience with these options is that both are time-consuming and expensive. In most cases the people concerned will need the help of a local lawyer. The local German embassy or consulate abroad may upon request and without obligation furnish addresses of lawyers (many of whom speak German). The staff of the German missions abroad are not themselves empowered to represent the interests of German nationals before the courts. Court costs and lawyer’s fees cannot be assumed by the Federal Foreign Office or the missions abroad.
To enable the swift return of abducted children to Germany, in emergencies the missions abroad may grant financial assistance for the return journey if the parent concerned cannot raise the necessary funds at short notice (subsidiarity principle in public assistance pursuant to section 5 of the Consular Law). Any assistance claimed must be repaid.
A consensual settlement is better
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.