News

International Parental child abduction and violation of fathers rights before the German Supreme Court

IN COOPERATION WITH RAE DR. GROHMANN & PARTNER, DR. WERNER NÜRNBERG

File: I BvR 1565/02

Constitutional Complaint

In the Proceedings

about the Constitutional Complaint of

Mr. Jerry XXXXX , 437 W. Topeka Drive, XXXXX, XXXXX , USA
-- Complainant -
Attorneys of Record: Law Offices of Dr. Grohmann and Partners, Virchowstr. 20 a, 90409 Nuremberg, court box # 68,

we report with presentation of a power of attorney, pursuant to section 22, § 2 of the Federal Constitutional Court Act, that we are Complainant s legal representatives. Pursuant to his directions and on his behalf we
l o d g e a
Co n s t i t u t i o n a l C o m p l a i n t

with the Federal Constitutional Court
versus

the ruling passed by the Regional Appeals Court Nuremberg, 7th Civil Division and Division for Family Matters, on 07/25/2002, File Reference: 7 UF 4068/01,

and present the following

M o t i o n s :

I. The ruling passed by the Regional Appeals Court Nuremberg, 7th Civil Division and Division for Family Matters, on 07/25/2002, File Reference: 7 UF 4068/01, is in violation of Complainant s
constitutional civil rights, specifically as set forth in Article 6, § 2, p. 1. The ruling is set aside. This matter will be remanded to the Regional Appeals Court Nuremberg.

II. Complainant is to be reimbursed for the expenses required for Constitutional-Complaint proceedings.

We object to the violation of Complainant s constitutional civil rights, specifically as set forth in
Article 6, § 2, p. of the Constitution of the Federal Republic of Germany.

Subject matter of these proceedings is the issue of whether the ruling passed by the Regional Appeals Court Nuremberg is in violation of Complainant s constitutional rights, in particular of his parental right under Article 6, § 2, p. 1 of the Constitution of the Federal Republic of Germany.

I. Statement of Facts:

1.
The child XXXXXX was born 11/17/1990 in the United States of America, State of Arizona, from the marriage -- still in effect at the time -- of XXXXXXXX, Complainant. Until his removal into the Federal Republic of Germany in the end of August/beginning of September, 2001, XXXXXX had lived almost permanently in the United States, having no command of the German language.

Pursuant to the Decree passed by the Maricopa Superior Court on 10/30/1996, Complainant and Mrs. Karin XXXXXX were divorced res judicata, Case # DR 96-11365 (Divorce Decree by Superior Court of Maricopa, with translation, Enclosures 1 and 2). //

In conjunction with the divorce proceedings, a ruling in effect, passed by Maricopa Superior Court as well
under the same case number, states that the Complainant and Mrs. Karin XXXX have joint
parental custody rights over XXXXXX(Ruling on Parental Custody Rights of 07/31/1996
passed by the Superior Court of Maricopa, Enclosure 3). /

Said Ruling on Parental Custody Rights was preceded by an agreement between the parties about
their exercise of custody rights (Enclosure 4).

Following the divorce and prior to his removal to Germany, the child's life centered around his mother. Complainant remarried; two children, were born from this marriage, [now] ages 4 and 1, i.e. being half-siblings to XXXXX.

2.
In the end of August/beginning of September 2001, the divorced wife XXXXXXX moved to
Nuremberg, Federal Republic of Germany, c/o, taking XXXX with her. He has lived there ever since.

3.
Based on Complainant's petition of 10/17/2001, the Nuremberg District Court -- Family Division -- with a ruling passed on 11/26/2001 ordered the child"s immediate delivery for the purpose of his repatriation to Phoenix, Arizona, USA (Enclosure 5). /

Against this ruling Mrs. XXXXXX filed an immediate appeal on 11/29/2001 with the Regional appeals Court Nuremberg. With its ruling of 07/25/2002, the Regional Appeals Court Nuremberg, 7th Civil Division and Division for Family Matters, Case # 7 UF 4068/01, overturned the ruling passed by the Nuremberg District Court -- Family Division -- Case # 109 F 03492/01, dismissing Complainant s petition for the child's delivery for the purpose of his immediate repatriation into the USA (Enclosure 6 with excerpts from the expert opinion, Enclosure 7) //

The ruling was served upon the undersigned on 07/25/2002.

4.
In the interim, Superior court of Maricopa, as a consequence of Mrs.XXXXX breach of the law with
respect to joint parental custody rights -- at least as far as the father's right to access to the child is concerned, ruled to withdraw from Mrs. XXXXXX her parental custody right (Decree with German translation, Enclosures 8 and 9). //

Accordingly, Complainant has sole custody of Christopher Bill Hughes.

A.
This Constitutional Complaint filed after ordinary legal remedies had been exhausted is [legally] admissible, specifically as it was filed prior to the deadline of 08/26/2001, i.e. prior to the expiration of one month, pursuant to section 93, § 1of the Federal-Constitutional-Court Act.

In addition, as a foreigner, Complainant is authorized to lodge a complaint on grounds of a possible violation of his parental rights under Article 6, § 2, p.1 of the Constitution of the Federal Republic of Germany, this being a human right accessible not only to Germans within the meaning of Article 116 of the German Constitution.

B.
The constitutional complaint is justified, as the ruling passed by the Regional Appeals Court Nuremberg on 07/25/2002 violates Complainant s constitutional civil rights, specifically his parental rights under Article 6, § 2, p.1 of the Constitution of the Federal Republic of Germany.

1.
The Hague Convention on the Civil Rights Aspects of International Child Abduction dated 10/25/1980, is relevant in the case at issue. Pursuant to Article 3, it includes cases where a child is unlawfully taken into another country in violation of the established (in the case at issue, joint) custodian right.

a)
Thus, the Convention occupies an extremely broad scope of application: The unlawfulness of child abduction is characterized by a disregard for the custodial law existing in a member country. Within this context it is of little importance if the child is taken into another country by the one with whom he has been staying on a regular basis, i.e. who happened to be the center of his life, at the time of his abduction.

b)
The purpose of this Convention is to reinstate as quickly as possible the status quo ante by way of
repatriating the child, thereby ensuring that custody and access rights existing in a certain member country be in fact honored by the other member countries.

The child's welfare is the guiding principle, with the Convention presuming that an immediate repatriation best serves this principle by preserving the continuity of a child s living conditions. This presumption made for the purpose of expeditious action is justified by the fact that repatriation is not synonymous with a final decision about custody rights but is, instead, meant as a reaction to an act of unlawful self-help (Palandt-Heldrich, [German] Civil Code, addendum to EC-Civil Code, marginal # 61).

2.
This basic rule is opposed by an explicit exemption-to-rule provision set forth in Article 13. Paragraph 1 conversely serves the child s welfare by making it possible to reject repatriation unless the criteria of Article 3 of the Convention are met (lt.a) or if repatriation would endanger the child (lt b). Paragraph 2 allows consideration to be given to the child's opposing will if certain criteria exist..

As this provision will delay the speedy repatriation of a child, thereby threatening to undermine the purpose of the Convention, Article 13 is to be applied strictly in cases of extraordinary and serious hindrances (Federal Constitutional Act, Resolution of 10/29/1998, New Weekly Law Journal 1999, 631 (632).

3.
The Regional Appeals Court Nuremberg misjudged the exemption-to rule relationship. Its admitting the
exemption-to rule provision under Article 13, § 2 of the Convention constitutes a violation of a specific constitutional right in that it misevaluated the Complainant s parental right to which he is entitled pursuant to Article 6, § 2, p.1 of the Constitutional Law by its flawed adjustment/balancing of colliding constitutional civil rights positions.

a)
In the case of a child abduction the parents constitutional civil rights positions collide with those of the child, pursuant to Article 2, § 1, as well as to article 6, § 1, 2 of the Constitutional Law (Federal Constitutional Court, New Weekly Law Journal 1997, p. 3301). As determined by the Federal Constitutional Law, in the case at issue the child s welfare takes precedence, pursuant to the national protection mandate of Article 6, § 2, p. 2 of the Constitutional Law -- a principle adhered to by interaction of rule and exemption of The Hague Convention (Federal Constitutional Law New Weekly Law Journal 1999, p. 631).

This affects Complainant s range of [parental] protection under Article 6, § 2, p. 1 of Constitutional Law, as the child's transfer to Germany removed him from [Complainant's] sphere of influence, so that he no longer had any say about the child's whereabouts.

This type of intervention can only be justified by a child's welfare, while in the case at issue only the child s will stands in the way of repatriation.

b)
On page 19 f of her opinion which formed the basis for the Regional Appeals Court's reasoning (pp.4, 5), the expert states that the child's, XXXXXX repatriation could not be rejected for reasons of his welfare, under Article 13, § 1b). Neither XXXXXX physical nor psychological welfare was
in any danger (Article 13, § 1), nor did the Complainant fail to exercise his custody right in the United States. Thus the criteria of Article 3 of the Convention would not be met (note Article 13, § 1a).

XXXXXXX stated no serious reasons for not wanting to live in the United States. The Court s sole grounds consisted of his statement that his father was away all day because of his work and his stepmother had teased him once about his yard work (p. 5 of the [Court's] decision).

Based on this statement made by the child, Article 13, § 2, The Hague Convention on the Civil Rights Aspects of International Child Abduction, was applied. However, a child's will does not inevitably correspond with a child's welfare. As pointed out above, rejection of repatriation cannot be justified by just any form of severity, but instead must be based on a grave, substantial, and factual impairment of a child's welfare, exactly within the scope of Article 13, § 1 of The Hague Convention on the Civil Rights Aspects of International Child Abduction (Federal Constitutional Court, New Weekly Law Journal 1999, 631 (632). Furthermore, the 12th German Day of Hearing stressed explicitly in its recommendation (Family-Law Journal 1998, 473 (475 sub-paragraph 3b), that a child's will alone is no decisive factor, as the Convention does not intend to anticipate any subsequent custody order.

In addition to explaining its purpose, this interpretation is suggested by the systematic arrangement and tenor of Article 13. A court s discretionary ruling distinguishes between § 1 and § 2 , the latter being geared to the child's will.

This distinction made by member countries, ranks within the same premise as that of an serious hindrance occurring elsewhere, must be observed by the courts. A rejection of repatriation is up to the judge, precisely for the sake of assessing an individual case and of orientation toward a child's welfare. In the case at issue, a close examination of these facts on the part of the Court is lacking; the Court limits its reasoning mainly to repeating the text of the Convention and the child's statements.

Without any regard for a restrictive approach to Article 13, § 2 of The Hague Convention on the Civil Rights Aspects of International Child Abduction, the will of the child was given precedence and his repatriation rejected therefore. The court did not utter a word about any extraordinary hindrance to Christopher Hughes' welfare, which would needs prevent his repatriation pursuant to Article 13, § 2 of The Hague Convention on the Civil Rights Aspects of International Child Abduction.

c)
Apart from this, Article 13, § 2 of The Hague Convention on the Civil Rights Aspects of International Child Abduction, was itself analyzed insufficiently, and therefore Article 6, § 2, p. 1 of the Constitutional Law not appropriately evaluated.

Its terms indicate that any consideration of a child's will requires a certain age and maturity level. In this case the Court dealt strictly with the issue of XXXXXXX maturity. As to his age, it [the Court] mentioned only that established law assumed a minimum age of 8 years (Ruling, p. 4).

However, according to established law of the Federal Constitutional Court, there is no age limit (Federal
Constitutional Law, New Weekly Law Journal 1999, 3622 (3623). As, according to the terms of Article 13, § 2, cumulative criteria must exist, the Court should have treated this issue separately.

d)
The Court's questioning the child, together with its obtaining an expert opinion about the issue of giving consideration to the child s will, caused a substantial delay in the process. Consequently, the interest expressed by The Hague Convention in a speedy repatriation within the meaning of Article 2, 11 of the Hague Convention on the Civil Rights Aspects of International Child Abduction, can no longer be realized.

Compared with other member countries, in Germany there are many instances in child abduction cases
facing decisions, where, on grounds of a child s will, his/her repatriation fail to be ordered (see Lowe/Perry, "The Effectiveness of The Hague Convention", Family-Law Journal 1998, 1073 (1075 f); also see the recommendation presented by the 12th Family Law Day, Family-Law Gazette 1998, 473 (475) and "Criticism of German Court Practice", by Weber; Legislation passed for the Amendment to Jurisdictions according to the Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children, New Weekly Law Journal 2000, 267 (268 f).

The exemption-to-rule relationship of the Convention is abrogated. In fact, its purpose is to prevent by speedy action for the child to become used to his/her new environment, thus creating a situation that speaks against repatriation.

Furthermore, the broad scope of application of Article 3 becomes a printer's waste. While any type of
a child's transfer into another country is considered unlawful as long as custodial rights are violated,
this process becomes severely restricted as a result of an extensive application of Article 13, § 2 to the point of many cases of custody-rights violations going unheeded. Within this context it should be noted once more that application of the Convention in no way intends to anticipate any subsequent decision on custody rights.

e)
It should also be noted within this context that the legislator reacted to constant criticism against German
adjudication which all-to often allows exemption clauses of the Convention to come into play, by amending the Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children (Civil Law Gazette I 1999, 702).

Even though the aforementioned jurisdictional focus bears no immediate relationship to this problem, it appears obvious that the legislator is aware of a need for action in order to achieve uniform application of the Convention, such as will do justice to the aims of The Hague Convention on the Civil Rights Aspects of International Child Abduction. By focusing on fewer family courts the legislator aims at providing judges with more expertise and more practical experience for a more appropriate application of The Hague Convention on the Civil Rights Aspects of International Child Abduction (in this context, see Weber loc.cit., p. 268 f).

In summary it may be concluded that by its affirmation of the exemption-to-rule provision pursuant to
Article 13, § 2 of The Hague Convention on the Civil Rights Aspects of International Child Abduction,
the Court missed the intended purpose of The Hague Convention. However, as soon as the interaction between rule and exemption of the Convention no longer aims at adjusting/settling opposite stances in matters of constitutional civil rights, the parental right of the Complainant as derived from Article 6, § 2, p. 1 of the Federal constitutional Law, is violated.

All the more, considering the fact that in the interim a final ruling was passed in favor of Complainant,
awarding him sole custody.

Pursuant to Section 93, § 2 b of the Federal Constitutional Court Act, this Constitutional Complaint is to
be accepted for a decision because it is clearly aims at enforcing the Complainant's parental right. He has been severely infringed upon to his own disadvantage by the ruling passed by the Regional Appeals Court Nuremberg. In the absence of any justification for this violation of constitutional civil rights, this claim raised against said violation appears to be of particular significance.

By misjudging the exception-to--rule relationship of The Hague Convention, the Regional Appeals Court prevented an appropriate adjustment of the opposing stances in matters of constitutional civil rights.

The interaction between rule and exemption as set forth in The Hague Convention on the Civil Rights Aspects of International Child Abduction constitutes a fundamental issue in favor of an appropriate adjustment/settlement of colliding interests in matters of constitutional civil rights.
In view of the removal of Complainant's son from the United States to Germany and of his right to sole
custody for his son, the ruling passed by the Regional Appeals Court in violation of Complainant's constitutional civil rights weighs particularly heavy.

C. KARIN ISBELL, M.A. TRANSLATIONS
4001 East Hazelwood Street
Phoenix, Arizona 85018-3744
Telephone: (602) 957-9523
Telefax: (602) 957-3377
E-mail: Isbell@Prodigy.net
www.globespantranslations-ger-eng.com
September 4, 2002

CERTIFICATE

Re: Constitutional Complaint Jerry Glen HUGHES, 437 W. Topeka Drive, Phoenix, Arizona 85027, USA

The undersigned hereby certifies that the attached document is an accurate and equivalent translation from the original German-language text into English, to the best of her knowledge and ability:

Karin Isbell
Court Interpreter & Translator
Member, Arizona Court Interpreters Association (ACIA)
Member, American Translators Association (ATA)

Click here to view our DISCLAIMER