Federal Constitutional Court of Germany (Bundesverfassungsgericht)

Federal Constitutional Court of Germany (Bundesverfassungsgericht)

Germany

9 April 2025

Not provided

Not provided

First instance

• Article 1
• Article 3
• Article 7
• Article 11

Not provided

1980 Convention Arts 3, 12, 13, 16; Basic Law for the Federal Republic of Germany (GG) Arts 1, 2, 3, 6, 19, 20. 101, 103; Civil Code (BGB) § 1671

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The mother was engaged in a prolonged legal dispute with her former husband concerning custody of their children, primarily the two youngest. The couple separated in 2014 and divorced in 2018. They initially shared joint custody of the younger children, who continued to reside with the mother in Germany following the separation. The father relocated to Denmark. Since 2015, the father had regular contact with the two younger children, who visited him in Denmark on weekends. During one such visit in 2021, the father informed the mother that he would not return the children to Germany, alleging that she posed a risk to their welfare. This led to multiple proceedings concerning custody and the children's return. In October 2021, a German court granted the mother sole rights of residence and ordered the father to return the children. However, a Danish court declined to enforce this order. In February 2023, a Danish District Court rejected the mother’s application for return, finding that the children would face an intolerable situation if returned to Germany and that they opposed the return. Following this, the German courts declared that they no longer had international jurisdiction. They concluded that the children's habitual residence, for the purposes of Article 5(1) of the 1996 Hague Child Protection Convention, was now in Denmark. While the father's actions constituted wrongful retention under Article 7(1) of the Convention, the children had been living in Denmark for over two years, attending school and becoming socially integrated. Accordingly, under Article 7(1)(b), Germany no longer had jurisdiction. On 31 December 2023, the children were abducted by unknown individuals and brought to Germany. From 2 January 2024, they were in contact with their mother and remained at her residence. Following this incident, further custody proceedings ensued. A Danish court, asserting international jurisdiction, issued an interim order granting the father custody and the right to determine the children’s residence. A German court subsequently issued a similar interim order. For its interim decision, the German court relied on Article 11 of the 1996 Convention, citing the children’s presence in Germany. Nevertheless, in all other proceedings, the German courts maintained that they lacked international jurisdiction, given the children’s habitual residence in Denmark. Pursuant to the interim orders, the children were returned to Denmark on 5 January 2024. The mother then lodged a constitutional complaint with the Federal Constitutional Court, alleging, inter alia, violations of her right to a lawful judge and her fundamental parental rights, on the grounds that the German courts had wrongly declined jurisdiction under the 1996 Convention. The Federal Constitutional Court declined to hear the complaint, finding it partly inadmissible and partly unfounded. The Court held that the Higher Regional Court’s conclusion—that the children were habitually resident in Denmark and had settled there within the meaning of Article 7(1)(b) of the Convention—raised no constitutional concerns. The court’s overall assessment satisfied constitutional standards, taking into account the children's residence with their father and his new family, their schooling, social integration, and their expressed wish to remain in Denmark. The Federal Constitutional Court further held that the children did not need to be heard in the context of determining whether they were “settled” within the meaning of Article 7(1)(b), as this assessment did not involve a substantive decision on their best interests. Regarding the German court’s interim decision based on Article 11 of the Convention, the Federal Constitutional Court found that there was no need for legal protection, as the decision was presumed to have lapsed under Article 11(2) due to the issuance of a corresponding measure by the Danish court, which held jurisdiction based on the children's habitual residence.