CASE

No full text available

Case Name

Lipkowsky and McCormack v. Germany (Application No 26755/10)

INCADAT reference

HC/E/DE 1201

Court

Name

European Court of Human Rights

Level

European Court of Human Rights (ECrtHR)

Judge(s)
Peer Lorenzen (President); Karel Jungwiert, Mark Villiger, Mirjana Lazarova Trajkovska, Zdravka Kalaydjieva, Ganna Yudkivska, Angelika Nu├čberger (Judges); Claudia Westerdiek (Section Registrar)

States involved

Requesting State

AUSTRALIA

Requested State

GERMANY

Decision

Date

18 January 2011

Status

Final

Grounds

-

Order

-

HC article(s) Considered

13(1)(b) 12(2)

HC article(s) Relied Upon

-

Other provisions

-

Authorities | Cases referred to
Neulinger and Shuruk v. Switzerland [GC], No 41615/07, 6 July 2010; Mattenklott v. Germany (dec.), No 41092/06, 11 December 2006; Tiemann v. France and Germany (dec.), nos. 47457/99 and 47458/99, ECHR 2000 IV; Bayerl v. Germany (dec.), No 37395/08, 13 October 2009; Olsson v. Sweden (No 2), 27 November 1992, Series A No 250; Hokkanen v. Finland, 23 September 1994, Series A No 299 A; Maumousseau and Washington v. France, No 39388/05, ECHR 2007 XIII; Meyer-Falk v. Germany (dec.), No 47678/99, 30 March 2000; Paradis v. Germany (dec.), No 4065/04, 4 September 2007; Maire v. Portugal, No 48206/99, ECHR 2003 VII.

INCADAT comment

Inter-Relationship with International / Regional Instruments and National Law

European Convention of Human Rights (ECHR)
European Court of Human Rights (ECrtHR) Judgments

Exceptions to Return

Protection of Human rights & Fundamental Freedoms
Protection of Human rights & Fundamental Freedoms

SUMMARY

Summary available in EN

Facts

The application related to a child born in April 2005 to a German mother and an Australian father. The parents were not married and, both before and after the birth, the mother moved between Germany and Australia. In Australia she lived with the father of the child.

The child was born in Germany, and in February 2006, the mother and child went to Australia. They subsequently returned to Germany for two periods, between June and September 2006 and between January and June 2007.
The parents separated in September 2007 and thereafter mother and child moved into a women's refuge. The father deposited their passports with an Australian court and commenced custody proceedings.

On 8 May 2008 the Federal Magistrates Court of Australia provisionally ordered joint legal custody and allowed the mother to take the child to Germany from late June till mid October. On 15 June mother and child travelled to Germany. They did not return to Australia.

On 5 August 2009 the father made an application to Karlsruhe District Court for the return of the child. A return order was made on 21 September, with provision made for direct enforcement. On 18 March 2010 the Karlsruhe Court of Appeal, after hearing the parents, the curator ad litem and the child and having obtained an expert opinion on the mother's ability to return to Australia, rejected the mother's appeal and confirmed the District Court's decision.

On 8 April 2010 the Federal Constitutional Court refused to admit the mother and child's constitutional complaint for adjudication, finding that there was no appearance of a violation of their fundamental rights.

The lower courts' decisions had been based on a permissible interpretation of Article 12(1) of the 1980 Hague Child Abduction Convention, in so far as they had found that the provision allowed the person who had wrongfully removed or retained the child could be obliged to return the child personally. The hardships of such an interpretation for the parent being ordered to return the child had to be accepted as the consequence of the illegal abduction or retention.

On 19 July 2010 the Karlsruhe Court of Appeal after hearing the parents, the child's curator ad litem and the Youth Office, again pointed out to the mother the possible consequences of non-compliance, namely the imposition of a coercive fine or coercive detention or the direct enforcement of the obligation.

Ruling

Application inadmissible; all elements of the complaints were found to be manifestly ill-founded.

INCADAT comment

European Court of Human Rights (ECrtHR) Judgments

Protection of Human rights & Fundamental Freedoms

Preparation of INCADAT commentary in progress.