Return order, but not to the father

Return order, but not to the father

Karlsruhe Higher Regional Court, Germany

8 January 2010, 2 UF 172/09,

The accusations made against the father were not held to be proven. However, the Appeal Court opted for a ‘graduated return order’ instead of ordering an immediate surrender of the children to the father. The mother could choose to return with the children herself.

The parents were married and lived together in England with their three children. The parents had joint custody. In 2009 the mother – without prior knowledge of the father – left England with the children with the intention of moving to Germany. The father made an application for return. The mother filed a criminal complaint against the father. She accused him of having sexually abused and assaulted the two older children. The father was arrested.

Intolerable situation

The return application was rejected on the grounds that the return would place the children in an intolerable situation as the father was currently in remand detention in England.

Criminal investigation discontinued

The father was released from remand detention and he filed an immediate complaint appeal against the decision rejecting the return. The criminal investigation proceedings in Germany were discontinued. The mother filed a complaint against the decision to discontinue the proceedings.

Matter of priority

Furthermore, the court stated that it is not necessary to await the outcome of the criminal case. It emphasized that pursuant to section 38 IntFamRVG the court shall treat proceedings for the return of a child as a matter of priority at all instances and there shall be no stay of the proceedings.

Graduated return

The Appeal Court granted the father’s request for a return order. However, the court refrained from ordering the immediate surrender of the three children to the father, and has instead opted for a “graduated return order”. The “graduated return order”, granted the mother the opportunity to effect the return of the children herself.

The Hague Child Abduction Convention does not contain any explicit rules on how exactly the courts are to order returns. Determining the operative provisions of the return order is a matter of domestic procedural law.

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