Return to Madrid ? No, to Spain.

by | Jun 4, 2022

Koblenz Higher Regional Court, Germany

11 March 2020, 13 UF 67/206

The child was born in Trier, Germany, in March 2018. In May 2018, the father acknowledged paternity of the child. In early July 2018, the family moved to Spain and from December 2018 onwards, rented an apartment in Madrid. The family registered in the Register of Residents, enrolled the child in preschool and also took the child to several medical appointments in Spain. During this time, the child and the mother repeatedly stayed in Trier, where the child also had a registered residence, while the father was working in the Netherlands. After the parents had separated, the mother took the child to Trier in September 2019 against the express wishes of the father.

On 7 January 2020, the mother initiated proceedings at Trier Local Court contesting paternity; these proceedings were not yet concluded at the time this decision was issued. In its order dated 9 January 2020, Koblenz Local Court approved the father’s application for return and ordered the return of the child to Madrid, Spain. The mother then lodged a complaint appeal (Beschwerde) against this decision on 27 January 2020.

The Appeal Court confirmed the court order, except for the fact that the child was to be returned not to Madrid, but to Spain. The Appeal Court considered:

‘The complaint appeal is thus only successful as pertains to the part of the decision which orders the return of the child specifically to Madrid. This is because the decision to return the child can only order the return to the country the child had been living in prior to the abduction. This does not mean the precise geographical location at which the child was living before the abduction (see Münchner Kommentar on the Act of Proceedings in Family Matters/Botthof 3rd edition 2019, Art. 12 Hague Child Abduction Convention margin No. 13, order of the Chamber dated 19 February 2019, File No. 13 UF 676/18 juris and Family Court of Australia at Sydney, Case Murray v. Director, Family Services (1993) FLC 92-416, [1993] FamCA 103, 16 Fam LR
982 and https://www.incadat.com/en/case/113.’