CEDH · CASELAW;CLIN;ENG — 11 décembre 2006

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Germany (dec.) - 41092/06 Decision 11.12.2006 [Section V] Article 8 Article 8-1 Respect for family life Respect for private life Decision ordering the return of the applicant's daughter with her father living abroad, pursuant to the Hague Convention: inadmissible   While the applicant stayed in the United States, she had an affair with a US citizen. After the affair had ended, the applicant gave birth to a daughter in April 2004. Her former partner was registered in the birth certificate as the child's legitimate father. In September 2004, she returned to Germany with her daughter and reconciled with her German husband. They now live together. The German authorities issued a German birth certificate for the child in which the applicant's husband was registered as the legitimate father. The applicant's former partner underwent a DNA-test which confirmed his fatherhood. Upon his application, a competent district court in the USA confirmed his parenthood and provisionally granted him custody of the child. The court also issued a certificate stating that the removal of the child had been “wrongful” under the Hague Convention on the Civil Aspects of International Child Abduction. Subsequently, he instituted proceedings in Germany seeking the return of the child to the USA. The court of appeal ordered the applicant to return her daughter to the USA, or, should she fail to do so, to hand her over in order to ensure her immediate return. The court also ruled that the execution of the order should not take place until the applicant's former partner had paid alimony to her for a period of four months. Moreover, the court ordered him to rent an apartment in the United States for the applicant and their daughter for a period of two months. Should the applicant refuse to comply with the order to return the child, the court authorised the bailiff to return the child to the USA by use of force, if necessary. The order to return the child had amounted to an interference with the applicant's rights to respect for her family life. The impugned measure had been based on the Hague Convention and the German court of appeal, by applying its provisions, had acted in what it considered to be the child's best interest. The interference had pursued a legitimate aim of protecting the rights and freedoms of others. The German court had been empowered to rely on the certificate of wrongness issued by the American court, as the Hague Convention allows the courts to rely on foreign decisions. The German court had taken possible hardships into account when ordering that the applicant's former partner had to pay alimony and rent an apartment for the applicant and their child. Moreover, the applicant had legal remedies at her disposal in the USA to ensure the defence of her interests and of those of her child. The decision to return the child to the USA under the Hague Convention had not anticipated or prejudiced the decision as to who would obtain the sole custody. The argument that there would be a certain danger that the US courts would find against the applicant in the pending custody proceedings could not be used to undermine the basic premise of the Hague Convention. Although coercive measures against children are not desirable in such sensitive situations, the use of sanctions must not be ruled out in the event of unlawful behaviour by the parent with whom the children live. Having regard to all the circumstances, the Court could not find that the German court of appeal's assessment had been arbitrary or that it had not adequately taken the child's interest into account. In particular, having regard to the domestic courts' margin of appreciation in the matter, the interference complained of had not been disproportionate to the legitimate aim pursued. The applicant, who had been represented by her lawyer throughout the proceedings before the German courts, had been sufficiently involved in the decision-making process: manifestly ill-founded .   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes