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Case Name
Bundesverfassungsgericht, 2 BvR 420/99, 9 March 1999
INCADAT reference
HC/E/DE 602
Court
GERMANY
Bundesverfassungsgericht
Limbach, Kirchhof, Jentsch
States involved
SWEDEN
GERMANY
Decision
9 March 1999
Final
Human Rights - Art. 20
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Art. 2(1), 6(1)-(2), 16(2) of the German Basic Law (Grundgesetz); Federal Constitutional Court Act (Bundesverfassungsgerichtgesetz)
Entscheidung des Zweiten Senats des Bundesverfassungsgerichts vom 29. Oktober 1998 - 2 BvR 1206/98 - (EuGRZ 1998, S. 612) ; BVerfGE 94, 315 <328> ; BVerfGE 58, 1 <34>; 59, 63 <89 ; BVerfGE 37, 217 <252>; 56, 363 <383>; 68, 176 <188>; 75, 201 <218 ; BVerfG, 3. Kammer des Zweiten Senats, Beschluß vom 15. August 1996 - 2 BvR 1075/96 -, NJW 1996, S. 3145.
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INCADAT comment
Exceptions to Return
Protection of Human rights & Fundamental Freedoms
Inter-Relationship with International / Regional Instruments and National Law
Compatibility of the Hague Convention with National Constitutions
SUMMARY
Summary available in
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Facts
The parents separated again in February 1998. The mother found accommodation in the same area and reported it as her and the children's residence. The parents tried out a system of shared custody, but this upset the children. In late March 1998, the mother took the children to Germany for a stay due to last two weeks. She eventually decided to remain there permanently and applied for sole custody of the children. The father applied for return of the children to Sweden.
The return was ordered at first instance and on appeal, on the grounds that the retention was wrongful and none of the exceptions applied. The Court of Appeal dismissed the mother's plea that the father's return of the children to Sweden in 1997 was itself a wrongful removal. The mother had resumed cohabitation and even reported the children as being resident in a Swedish locality after the second separation. There had been no return application. The mother entered a constitutional appeal.
Ruling
Grounds
Human Rights - Art. 20
Pointing out that constitutional appeals are admissible only insofar as they are of fundamental constitutional importance and necessary for the enforcement of the constitutional rights claimed by the appellant, the Constitutional Court stated that these requirements were not satisfied in the case in point.
Firstly, the issues relating to the consistency of the 1980 Convention with the Constitution had been resolved in an earlier judgment of the same Court, and secondly, admissibility of the appeal was not necessary for the enforcement of the mother's fundamental rights.
The Court pointed out that the determination and appraisal of facts, according to unchanging constitutional case law, are incumbent on the appropriate ordinary courts, and the Constitutional Court is involved only in the event of breach of the constitutional law.
It added that Art. 6(2)(2) of the German Constitution (Grundgesetz) is designed to protect the interests of the child. In the event of inconsistency between the interests of the parents as in the case in point, the child's interests should prevail. In addition, a narrow interpretation of the exceptions under the Convention was not unconstitutional.
The aims of the Convention justified the principle of return of abducted children, so that only material, concrete and current circumstances implying an exceptionally serious danger for the child's well-being were such as to prevent a return. It pointed out, however, that in the special case of crossed return applications, a review of the child's well-being in further depth was required under Art. 13(1)(b).
It specified that a parent's difficulties in case of return were not sufficient justification for application of that exception of grave risk; while the separation of the parent and child was such as to be detrimental to the child's well-being, that risk could usually be avoided by the return of that parent with the child.
The Court stated that on this basis, the decision made in the case in point by the Court of Appeal did not infringe any constitutional principle. There had been no competing return applications.
In connection with its interpretation of Arts. 13(1) and 20 of the 1980 Convention, the Court of Appeal had appraised the children's actual situation, and ruled that returning them to Sweden would not create any risk in excess of those usually connected with a change of the children's place of residence.
The mother might be required to return to the location of her former habitual residence. If only exceptionally-serious circumstances were demanded to justify denial of return of the child on the basis of the exception under Art. 13, the same demand should be made of the parent having removed the child.
Finally, there was no breach of the non-extradition principle (Art. 16(2) of the German Constitution). The return of a child pursuant to the Convention could not be regarded as an extradition, whether directly or by analogy: the children were not handed over to the public authorities of another State at its request, but simply delivered on a provisional basis, at a parent's request, under the latter's protection.
Author of the summary: Aude Fiorini, United Kingdom
INCADAT comment
Protection of Human rights & Fundamental Freedoms
Preparation of INCADAT commentary in progress.
Compatibility of the Hague Convention with National Constitutions
The Convention has been found to be in accordance with national constitutions or charters of rights in other Contracting States, see:
Argentina
W. v. O., 14 June 1995, Argentine Supreme Court of Justice, [INCADAT cite: HC/E/AR 362];
Belgium
N° 03/3585/A, Tribunal de première instance de Bruxelles, [INCADAT cite: HC/E/BE 547];
Canada - Canadian Charter of Rights and Freedoms
Parsons v. Styger, (1989) 67 OR (2d) 1, [INCADAT cite: HC/E/CA 16];
Y.D. v. J.B., [1996] R.D.F. 753 (Que.C.A.), [INCADAT cite: HC/E/CA/369];
Czech Republic
III. ÚS 440/2000 DAOUD / DAOUD, 7 December 2000, Ústavní soud České republiky (Constitutional Court of the Czech Republic);[INCADAT cite: HC/E/CZ 468];
Germany
2 BvR 982/95 and 2 BvR 983/95, Bundesverfassungsgericht, [INCADAT cite: HC/E/DE 310];
2 BvR 1126/97, Bundesverfassungsgericht, [INCADAT cite: HC/E/DE 338];
Ireland
C.K. v. C.K. [1993] ILRM 534, [INCADAT cite: HC/E/IE 288];
W. v. Ireland and the Attorney General and M.W. [1994] ILRM 126, [INCADAT cite: HC/E/IE 289];
South Africa
Sonderup v. Tondelli 2001 (1) SA 1171 (CC), [INCADAT cite: HC/E/ZA 309];
Switzerland
5P.1/1999, Bundesgericht (Tribunal fédéral), [INCADAT cite: HC/E/CH 427];
5A_479/2007 /frs, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile), [INCADAT cite: HC/E/CH 953];
United States of America
Fabri v. Pritikin-Fabri, 221 F. Supp. 2d 859 (2001) [INCADAT cite: HC/E/US 484];
Kufner v. Kufner, 519 F.3d 33 (1st Cir. 2008) [INCADAT cite: HC/E/US 971];
Rodriguez v. Nat'l Ctr. for Missing & Exploited Children, 2005 U.S. Dist. LEXIS 5658 (D.D.C., Mar. 31, 2005) [INCADAT cite: HC/E/US 799].
However, several challenges have been upheld in Spain, see:
Re S., Auto de 21 abril de 1997, Audiencia Provincial Barcelona, Sección 1a, [INCADAT cite: HC/E/ES 244];
Carrascosa v. McGuire, 520 F.3d 249 (3rd Cir. 2008), [INCADAT cite: HC/E/USf 970].