HC/E/DE 467
GERMANY
Bundesgerichtshof, XII. Zivilsenat (Federal Supreme Court, 12th Civil Chamber)
Superior Appellate Court
CANADA
GERMANY
16 August 2000
Final
Interpretation of the Convention
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After having examined court decisions from a number of Contracting States to the 1980 Convention as well as their implementing legislation and legal doctrine, including the Explanatory Report by Elisa Pérez-Vera, the Court held that courts of the State where the child has been abducted to may only decide on the merits of rights of custody if it has been decided that the child is not to be returned or if no application for return is lodged within a reasonable time following receipt of the notice of wrongful removal or retention. The Court rejected the opinion that the prohibition in Article 16 covered only cases where a return application was still pending or could still be lodged. The wording and purpose of the Convention made it clear that the previous care relationship should be re-established as fast as possible, thus enabling the courts of the State of the (previous) habitual residence of the child to make a custody decision. Therefore also a return order which had become final but had not yet been enforced was covered by Article 16. Thereby the courts of the State where the return order had been made were prohibited from making a decision on the merits of custody, at least where the applicant was still actively pursuing the enforcement of the order and where the fact that return had not yet taken place was due mainly to delayed handling by the enforcement organs or to attempts of the abductor to prevent enforcement. The Court further discussed whether it might be possible to institute a decision on the merits of custody after a definite and final refusal to enforce an existing return order. In such a case the purpose of the Convention – the swift re-establishment of the original factual situation in fast-track summary proceedings – could no longer be achieved. The same could apply if the applicant who had obtained a return order and who was obliged under the enforcement law of the State concerned to take steps to have the order enforced, did not take the necessary steps within an appropriate period of time. The Court however rejected this interpretation because Member States had undertaken the obligation set out in Articles 2 and 7 to take all appropriate measures to achieve the objects of the Convention. Therefore Article 16 had to be interpreted in a broad sense beyond its wording as not only prohibiting a decision on the merits of custody but also obliging the court to suspend pending custody proceedings. Finally, the Federal Supreme Court suggested that the court seized of custody proceedings might even be obliged to inform a party who had not yet lodged an application for return of his or her rights under the 1980 Convention.
The additional material considered by the court in reaching its decision included:
Article 31 of the Vienna Convention on the Law of Treaties of 23 May 1969;
Article 15 of the Dutch law implementing the Hague Child Abduction Convention and the European Custody Convention;
Article 16 of the Inter-American Convention on the International Return of Children [Montevideo] of 15 July 1989;
Rule 6.11 (4) of the English Family Proceedings Rules 1991, SI 1991 No. 1247.
The preceding decisions in this affair are:
First instance: Familiengericht Nürtingen (Family Court, unpublished);
Appellate Court: Oberlandesgericht Stuttgart (Higher Regional Court) (FamRZ 2000, 374).
In the English decision R. v. R. (Residence Order: Child Abduction) [1995] Fam 209, [1995] 3 WLR 425 [INCADAT Reference: HC/E/UKe 171], the High Court held that where a court becomes seized of a matter relating to a child in which it appears that there has been a wrongful removal from a Convention State, it is the duty of that court to consider taking steps to ensure that the parent in that State is informed of his or her rights under the Convention. Furthermore, it should take such steps unless it is clear that there has been acquiescence, in the sense of positive acceptance of the situation.
Jurisdiction Issues under the Hague Convention (Art. 16)
Given the aim of the Convention to secure the prompt return of abducted children to their State of habitual residence to allow for substantive proceedings to be convened, it is essential that custody proceedings not be initiated in the State of refuge. To this end Article 16 provides that:
"After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice."
Contracting States which are also party to the 1996 Hague Convention are provided greater protection by virtue of Article 7 of that instrument.
Contracting States which are Member States of the European Union and to which the Council Regulation (EC) No 2201/2003 of 27 November 2003 (Brussels II a Regulation) applies are provided further protection still by virtue of Article 10 of that instrument.
The importance of Article 16 has been noted by the European Court of Human Rights:
Iosub Caras v. Romania, Application No. 7198/04, (2008) 47 E.H.R.R. 35, [INCADAT cite: HC/E/ 867];
Carlson v. Switzerland no. 49492/06, 8 November 2008, [INCADAT cite: HC/E/ 999].
When should Article 16 be applied?
The High Court in England & Wales has held that courts and lawyers must be pro-active where there is an indication that a wrongful removal or retention has occurred.
R. v. R. (Residence Order: Child Abduction) [1995] Fam 209, [INCADAT cite: HC/E/UKe 120].
When a court becomes aware, expressly or by inference that there has been a wrongful removal or retention it receives notice of that wrongful removal or retention within the meaning of Article 16. Moreover, it is the duty of the court to consider taking steps to secure that the parent in that State is informed of his or her Convention rights.
Re H. (Abduction: Habitual Residence: Consent) [2000] 2 FLR 294, [INCADAT cite: HC/E/UKe 478]
Lawyers, even those acting for abducting parents, had a duty to draw the attention of the court to the Convention where this was relevant.
Scope and Duration of Article 16 Protection?
Article 16 does not prevent provisional and protective measures from being taken:
Belgium
Cour de cassation 30/10/2008, CG c BS, N° de rôle: C.06.0619.F, [INCADAT cite : HC/E/BE 750].
However, in this case the provisional measures ultimately became final and the return was never enforced, due to a change in circumstances.
A return application must be made within a reasonable period of time:
France
Cass Civ 1ère 9 juillet 2008 (N° de pourvois K 06-22090 & M 06-22091), 9.7.2008, [INCADAT cite : HC/E/FR 749]
United Kingdom - England & Wales
R. v. R. (Residence Order: Child Abduction) [1995] Fam 209, [INCADAT cite: HC/E/UKe 120].
A return order which has become final but has not yet been enforced is covered by Article 16:
Germany
Bundesgerichtshof, XII. Zivilsenat Decision of 16 August 2000 - XII ZB 210/99, BGHZ 145, 97 16 August 2000 [INCADAT cite: HC/E/DE 467].
Article 16 will no longer apply when a return order cannot be enforced:
Switzerland
5P.477/2000/ZBE/bnm, [INCADAT cite : HC/E/CH 785].
Preparation of INCADAT commentary in progress.