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The mother (Complainant under 1) is a Ukrainian national and the mother of a child (Complainant under 2) born in 2016. During her divorce from the father of the child, also a Ukrainian national, in 2018, a decision on parental custody was not made resulting in joint custody of the child living with his mother. In early 2022, a Ukrainian court ruled on access rights of the father to the child. After the outbreak of war, the mother with the child left Ukraine without the knowledge of the father and made it to Germany. In September 2022 the father found out that the cild was in Germany.

In February 2023, he applied for the return of the child under The Hague Convention. In the opinion of the Local Family Court, the removal was unlawful, but the exception to return under Article 13(1)(b) applied due to the war, hence the return was refused. 

The father appealed this decision, the Higher Regional Court modified the order and stated that the mother was obliged to return the child to Ukraine on or before 7 August 2023. Article 13(1)(b) would not apply as the return of the child would not be taking place to a specific place, but to a country in general. The mother complied with the order and her obligation to return the child to Ukraine for a period longer than three weeks before returning to Germany. The father applied for enforcement of the return order. In her constitutional complaint, the mother claims, both in her own name and in that of child, that the return order issued constitutes a violation of Art. 2 (1) in conjunction with Art. 1 (1) and Art. 6 German Basic Law. She insists that there is danger throughout the territory of Ukraine. 

The constitutional complaint of the child was not lodged in a permissible way (need to be presented by a guardian-ad-litem). 

The complaint brought by the mother in her own name was inadmissible as she returned with the child to Ukraine for around 3 weeks. Additionally she did not demonstrate sufficiently a possible violation of basic rights.

Non-Convention Issues

The Constitutional Court dismissed the complaint based on procedural as well as non-Convention issues. Besides the fact that the constitutional complaint of the child was not lodged in a permissible way as there was a need to be presented by a guardian-ad-litem, the mother at the time of the decision was no longer restricted by the contested order issued by the Higher Regional Court, as she complied with her obligation to return the child arising therefrom. As a result of such fulfilment, no coercive measures can be ordered against the abducting parent, if he or she takes the child back to the country of origin and remains there for longer than three weeks, even if he or she takes the child away again. 

The recognised legal interest in terms of constitutional proceedings must generally continue to be present at the time the decision is made by the Federal Constitutional Court. It may, however, continue to exist under certain circumstances even once the aim of the constitutional complaint has been resolved, if this would otherwise result in an issue of key importance under constitutional law remaining without a ruling and the violation of basic rights would appear especially burdensome or there is cause for concern that the contested measure will be repeated, or that the measure will continue to place limitations or constraints.

However, the complainant under point 1) did not make any statement either in her initial constitutional complaint, nor in any other of her subsequent written submissions as to why the recognised legal interest in bringing proceeding continued to exist despite the fulfilment having taken place.

Although the Constitutional Court rejected the case as inadmissible, it stated in an obiter dictum

1. considerable doubt as to whether the return order issued by the Higher Regional Court guaranteed the parental rights arising from Art. 6 (2) sentence 1 Basic Law.
2. that the contested order does not deal with the assessments of the expert parties and the hearing of the child in the context of obtaining a sustainable basis for an application of Article 13(1)(b) Hague Child Abduction Convention.
3. that the reasoning of the Higher Regional Court not to apply the grounds for grave risk exception arising from Article 13(1)(b) Hague Child Abduction Convention is at risk of not sufficiently fulfilling the requirements arising from Art. 8 ECHR.

Grave Risk - Art. 13(1)(b)

The specific reasoning of the Higher Regional Court dismissing a serious risk of physical or psychological harm being done to the child in the event of his return to Ukraine cannot demonstrate the appropriate and comprehensive application of Article 13(1)(b) in terms of the child's best interests. Therefore, the Higher Regional court would have had to take a closer look at the decisions issued by courts of final instance in relation to the war in Ukraine, how grave risk exceptions have been handled, and at specific conclusions drawn by the expert parties in the original proceedings as relates to the best interests of the child. 

According to the precedent of the specialist courts published to date, the situation in Ukraine is assessed such that the whole country is a war zone and that, due to the risk posed to supreme legal interests, the life of the child, no return of the child to Ukraine is possible as per Article 13(1)(b). 

The Higher Regional Court additionally has not taken any particular account of the child’s wishes or the recommendations made by the Youth Welfare Office and guardian-ad-litem in reaching its decision. Especially no in-depth statement was made as to the specific dangers which would result from a return of the child to a country in which – as he is aware and is shown in the court records of the hearing of the child – there is a war ongoing. This is most likely not sufficient for Article 13(1)(b) Hague Child Abduction Convention to be applied in a way which is in keeping with the child’s best interests.

European Convention on Human Rights (ECHR)

The reasoning of the contested decision raises doubts as to whether the Higher Regional Court, in application of Article 13(1)(b) Hague Child Abduction Convention, was fully aware of the duty to consider the decisions issued by the ECtHR when interpreting Article 8 ECHR.

The courts of the States Parties must make clear when interpreting and applying Article 13(1)(b) Hague Child Abduction Convention, that the guarantees set out in Article 8 ECHR have been complied with and the child’s best interests taken account of. This requires a certain level of justification relating to the requirements of the grave risk exception. The Higher Regional Court, however, only looked at these requirements for justification on a rather superficial level.