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. In these cases, the German missions abroad have no legal means and only very limited real possibilities 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.
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.
Repatriation of a child from an HCCAICA Contracting State
The object of the Hague Convention on the Civil Aspects of International Child Abduction is to secure the prompt return of children wrongfully removed to or retained in any Contracting State. Central Authorities have been designated to implement this Convention. The German Central Authority is the Federal Office of Justice.
In the case of child abductions to one of the Contracting Stares, you are urgently recommended to contact the Central Authority.
Special regulations in European Union member states (with the exception of Denmark)
Under Council Regulation (EC) No. 2201/2003 (Brussels IIA Regulation), which has been in force since 1 March 2005 all decisions on parental responsibility including measures to protect the childshall be automatically recognised in the other EU member states (with the exception of Denmark) without the need for a special recognition procedure.
For further information please contact the Federal Office of Justice.
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.
Advice can be obtained from the Central Contact Point for Cross-border Family Conflicts at the International Social Service, German Branch (ISS).
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.
1st option: recognition of a German court decision
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 recognized 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.
2nd option: foreign court decision
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.