Headnotes

to the Order of the Second Senate of 29 October 1998

- 2 BvR 1206/98 -

1. The Hague Child Abduction Convention guarantees respect for the best interests of the child in the interaction between return as the standard procedure and exceptions in accordance with Articles 13 and 20 of the Hague Child Abduction Convention. The restrictive interpretation of these exception clauses is constitutionally unobjectionable.

2. In the special case of converse return applications, more detailed review of the best interests of the child is constitutionally necessary using Article 13 of the Hague Child Abduction Convention.

3. The obligation emerges from the constitutional entrenchment of the best interests of the child in Articles 6.2 and 2.1 of the Basic Law (Grundgesetz – GG ) in conjunction with the right to a hearing in court (Article 103.1 of the Basic Law) to ensure the best interests of the child in procedural law in that a curator ad litem is already appointed to children to defend their interests in family court proceedings if there are fears that the interests of the parents might clash with those of the children.

FEDERAL CONSTITUTIONAL COURT

– 2 BvR 1206/98 –

IN THE NAME OF THE PEOPLE

In the proceedings
on
the constitutional complaints

the Federal Constitutional Court – Second Senate –

with the participation of Justices

President Limbach,

Kirchhof,

Winter,

Sommer,

Jentsch,

Hassemer,

Broß

held on 29 October 1998:

1. The order of the Celle Higher Regional Court of 9 July 1998 – 21 UF 88/98 – violates the fundamental right of the complainant re 1. under Article 6.2 sentence 1 of the Basic Law and the fundamental rights of the complainants re 2. and 3. under Article 6.2 sentence 2 in conjunction with Article 2.1 and Article 103.1 of the Basic Law. The ruling is overturned and the case is referred back to the Celle Higher Regional Court.

R e a s o n s:

A.

The constitutional complaints relate to proceedings in accordance with the Hague Convention of 25 October 1980 on Civil Aspects of International Child Abduction (Federal Law Gazette (Bundesgesetzblatt – BGBl ) II 1990 p. 206), based on two converse abductions of two children. The children were first of all abducted from Germany to France by the mother and brought back by force nine months later from France to Germany by the father.

I.

1. The abducting parent not infrequently attains a factual advantage with child abductions to another state because return of the children as soon as possible to their original place of residence meets with legal and organisational obstacles in international cooperation, and the international jurisdiction for a rights of custody ruling is determined in line with the “habitual residence” of the child as defined by the provisions of the Hague Convention of 5 October 1961 concerning the powers of authorities and the law applicable in respect of the protection of minors – (Federal Law Gazette II 1971 p. 217). The Hague Child Abduction Convention hence facilitates cooperation among the Contracting States, and on this basis calls for the immediate return of the child.

Article 3

The removal or the retention of a child is to be considered wrongful where a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention

and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.The rights of custody mentioned in sub-paragraph a above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

Article 12

Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.

Article 13

Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that,a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal of retention; or b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.

In accordance with Article 19 of the Hague Child Abduction Convention, a decision under this Convention concerning the return of the child is not to be taken to be a determination on the merits of any custody issue. The return is to ensure that the custody proceedings are implemented at the child’s original place of habitual residence. Article 20 of the Hague Child Abduction Convention makes it possible to refuse to return the child if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.

2. The Act Reforming the Law of Parent and Child (Gesetz zur Reform des Kindschaftsrechts – KindRG) came into force on 1 July 1998 (Federal Law Gazette I 1997 p. 2942). This Act added the following provision to the Act on Matters of Non-contentious Jurisdiction (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit – FGG):

§ 50 of the Act on Matters of Non-contentious Jurisdiction

(1) The court may appoint a children’s guardian (curator ad litem ) to the minor child for proceedings concerning him or her insofar as this is necessary to defend his or her interests.(2) The appointment shall be deemed necessary as a rule if1. the interest of the child is markedly in contradiction with that of his or her legal representatives,2. the proceedings relate to measures in respect of a risk to the best interests of the child, entailing the separation of the child from his or her family or the removal of personal custody as a whole (§§ 1666 and 1666a of the Civil Code), or3. the proceedings relate to the removal of the child from the carer (§ 1632.4 of the Civil Code) or from the spouse or person with right of access (§ 1682 of the Civil Code).If the court refrains from appointing a children’s guardian for the proceedings in such cases, it shall provide reasoning for this in the ruling relating to the person of the child.[…]

II.

1.The complainant re 1. has been married to the applicant of the initial proceedings, a French national, since August 1989. The marriage produced a son, born on 31 October 1990, and a daughter, born on 22 July 1994. The spouses are separated. Divorce proceedings have been initiated.

a)In the context of proceedings before a German court on parental custody during the period of separated living in accordance with § 1672 of the Civil Code (Bürgerliches Gesetzbuch – BGB), the mother stated in the oral hearing, which took place on 17 February 1997, for the court record that she would not unlawfully leave the Federal Republic of Germany with her children, but would await a final ruling in the custody proceedings.

Nonetheless, on 7 July 1997 she travelled to France with both children, the complainants re 2. and 3., against the will of the father, the complainant re 1. The Local Court (Amtsgericht ) – Family Court – thereupon assigned to the complainant re 1. the right to determine the place of residence for the children. At the same time, it instructed the mother to surrender both children to the father.

b) Attempts on the part of the father to obtain from the French courts with jurisdiction the return of the children in accordance with the Hague Child Abduction Convention were unsuccessful at first and second instance. The courts did consider the abduction of the children by the mother to be unlawful, but accepted an exception in accordance with Article 13.1 (b) of the Hague Child Abduction Convention, since any renewed change in the present circumstances would place the children in an “intolerable situation”. The proceedings have not yet been finally concluded; the Court of Cassation ( Cour de Cassation ) has so far not yet ruled on an appeal on a point or points of law (pourvoi en cassation) submitted by the complainant re 1.

c) Within the framework of divorce proceedings initiated by the mother in France, the Blois Tribunal de Grande Instance * (* Translator’s note: First-instance civil court dealing with claims above Euro 10,000 and having exclusive jurisdiction for family matters. ) * awarded an injunction to the effect that both parents are jointly entitled to parental custody and that the children’s place of residence was with their mother. The father appealed this provisional rights of custody ruling. The appeal has not yet been ruled on.

d) On 28 March 1998, the father had the children brought from France to Germany to his place of residence by appointed persons. The kidnappers used force on the mother of the children in doing so. […]

e) The mother, the applicant of the initial proceedings, thereupon applied before the court with jurisdiction in Germany to recognise the provisional rights of custody ruling of the Blois Tribunal de Grande Instance of 10 November 1997 and to declare it provisionally enforceable, as well as to order the surrender of the children to her or to a person appointed by her. The applications were rejected. In response to the immediate complaint, the ruling of the Higher Regional Court was handed down, which is impugned with the constitutional complaints, in which the return of the children to the mother was ordered on the basis of the Hague Child Abduction Convention.

2. The Higher Regional Court considers the actions of the complainant re 1. to constitute unlawful abduction within the meaning of Article 3 of the Hague Child Abduction Convention. For this reason, the children were to be returned to their place of habitual residence in accordance with Article 12.1 of the Hague Child Abduction Convention. The children had had their “habitual residence” in France immediately prior to their abduction to Germany. At that time, they had already lived in France for almost nine months; the son had attended school there, the daughter had attended kindergarten. Both children had been integrated in France. The establishment of the habitual residence at the mother’s place of residence was also not opposed by the fact that the mother had abducted the children to France against the will of the complainant re 1.

There were said to be no indications justifying an exception in accordance with Article 13.1 (b) of the Hague Child Abduction Convention. The provision was to be interpreted restrictively. Acceptance of the breaking of the law by means of abduction was only justified in view of extraordinarily grave harm to the best interests of the child. Here, also the risk would have to be particularly grievous, concrete and immanent, otherwise the purpose of the Hague Child Abduction Convention would be prevented by applying the exception.

Also Article 13.2 of the Hague Child Abduction Convention was said not to apply. The will allegedly expressed by the four- and seven-year-old children to remain with their father and not to return to their mother in France did not permit the conclusion to be drawn that the children would seriously object to being returned to France. The Senate did not consider a reason to exist to hear the children in order to ascertain their will, especially since they were subject to the strong influence of their father.

III.

The complainant re 1. filed constitutional complaints against this ruling on 15 July 1998 in his own name as well as in representation of the complainants re 2. and 3. By order of 10 August 1998 the Local Court – Guardianship Court – ordered a supplementary curator to be appointed for the constitutional complaint proceedings of the complainants re 2. and 3. The supplementary curator filed a “renewed” constitutional complaint by written statement of 17 August 1998 “purely preventively”, and made reference to the complete content of the previous reasoning of the constitutional complaints.

1. The complainant re 1. is objecting to a violation of his fundamental rights under Article 6.2 to 6.4 of the Basic Law; the complainants re 2. and 3. are objecting to a violation of their fundamental rights under Article 2.1 in conjunction with Article 1.1 of the Basic Law. It is alleged that an immediate return to France would constitute a grave incursion on the right of personality of the complainants re 2. and 3. and on the best interests of these children, as well as on the parental right of the complainant re 1.

Greater accommodation of the best interests of the child was necessary with a converse return than in simple abduction cases. For this reason, the Higher Regional Court had not been permitted to refrain from commissioning a specialist psychological statement. In order to ensure compliance with the best interests of the child in material and procedural terms, a generous interpretation of the exception clause was said to be required in the case of a return in order to save the children further burdensome changes of location. Since as yet no final ruling had been handed down by the French courts on the return claim of the complainant re 1., and also the custody proceedings had not yet been concluded, there might be a further change of location after a return. What is more, the Higher Regional Court had allegedly ignored the statement by the youth welfare office that the children had once more become familiar with their customary surroundings within a short period.

Also the parental right of the complainant re 1. was said to be rendered null if only the state that he created unlawfully was assessed and it was disregarded in doing so that the mother had first acted unlawfully and caused the complainant re 1. to choose that course of action. In the result, the Higher Regional Court was said to accept the possibility of the complainant re 1. completely losing his parental right.

It could not be constitutionally accepted in cases of converse child returns that the second abduction served as the sole standard for the ruling, thereby disregarding the interests of the children and the state now applying. This was alleged to negate the rights of the children and the goals of the Hague Convention.

2. By written statement of 25 September 1998, the supplementary curator supplemented the submission for the complainants re 2. and 3. The latter were said to have been violated by the impugned ruling in their right to a hearing in court in accordance with Article 103.1 of the Basic Law, as well as in their general right of personality in accordance with Article 2.1 in conjunction with Article 1.1 of the Basic Law. The Higher Regional Court had allegedly not sufficiently accounted for the fact that the return application of the children’s mother was directed against a return by the children’s father, which had been preceded by an initial abduction by the children’s mother. Also, the return application of the children’s father had been well-founded in accordance with Article 12 of the Hague Child Abduction Convention because of this preceding first abduction by the children’s mother. In the negative rulings on the return application of the complainant re 1., the French courts were said to have ignored a partial rights of custody ruling of a German family court on the right to determine the place of residence, which they should have adhered to in accordance with Article 7 of the Hague Convention concerning the powers of authorities and the law applicable in respect of the protection of minors, and allegedly had furthermore ignored the provisions of the Hague Child Abduction Convention. These rulings on the part of the French courts had allegedly caused the second abduction by the complainant re 1.

The Higher Regional Court was said to have not attached sufficient significance to these special circumstances. The mere statement by the courts, namely that, because of their age, the willingness expressed by the children when asked about a return to France should not be overvalued, negated the fundamental rights of the children. The court was said to have been obliged to investigate the will of the children in a suitable manner.

To this end, it should have heard the then 7 ½-year-old son in person, who according to the submission of the complainant re 1. refused to return to France. Even if the court presumed that “both children are exposed to the strong influence of their father”, it should have ascertained the seriousness of their will, where necessary through a child psychological report.

Greater participation by the children was also favoured by the amendment to procedural law brought about by the Act Reforming the Law of Parent and Child, which more clearly involved minor children in the proceedings. The ruling of the Higher Regional Court was said to have been handed down after this reform had entered into force. Since the new § 50 of the Act on Matters of Non-contentious Jurisdiction in principle was said to be applicable to Hague proceedings, the appointment of a curator ad litem for the children was said to have been necessary in accordance with § 50.2 nos. 1 to 3 of the Act on Matters of Non-contentious Jurisdiction in the proceedings regarding their mother’s return application in order to sufficiently guarantee the children’s interests. Not appointing a curator ad litem was said to constitute a further violation of Article 2.1, Article 1.1 and Article 103.1 of the Basic Law.

IV.

The Federal Constitutional Court (Bundesverfassungsgericht ) afforded the opportunity to submit a statement to the Federal Government, the Land Government of Lower Saxony, the Federal Court of Justice (Bundesgerichtshof ), the Federal Public Prosecutor General at the Federal Court of Justice as the Central Authority in accordance with the Hague Child Abduction Convention, the Diepholz district youth welfare office and the applicant of the initial proceedings.

1. […]

2. […]

3. […]

4. […]

V.

[…]

B.

The constitutional complaints are admissible.[…]

C.

The impugned ruling violates the fundamental right of the complainants re 2. and 3. under Article 6.2 sentence 2 in conjunction with Article 2.1 of the Basic Law and their fundamental right under Article 103.1 of the Basic Law. The fundamental right of the complainant re 1. under Article 6.2 sentence 1 of the Basic Law has been violated.

I.

1. As a subject of fundamental rights, a child has a right to state protection of his or her fundamental right under Article 2.1 of the Basic Law (see Decisions of the Federal Constitutional Court (Entscheidungen des Bundesverfassungsgerichts – BVerfGE) 24, 119 (144); 75, 201 (218)). At the same time, the best interests of the child constitute the guide for the state mandate of protection in accordance with Article 6.2 sentence 2 of the Basic Law. In the event of a clash of interests occurring between parents and child, the best interests of the child are the determining standard (see BVerfGE 37, 217 (252); 56, 363 (383); 68, 176 (188); 75, 201 (218)).

In principle, marriage as a living arrangement of man and woman is the “precondition for optimum ... development of children” (BVerfGE 76, 1 (51)). Article 6.1 in conjunction with Article 6.2 of the Basic Law protects the family above all as a living arrangement and child-raising community, in which parents have to safeguard their serving fundamental right for the best interests of the child (see BVerfGE 80, 81 (90-91)). Insofar as parents are unable to offer such a framework to their children, in allocating the parental responsibility, the parental right is to be understood above all as a parental obligation (Article 6.2 sentence 1 of the Basic Law) to develop the state’s “watchdog function” (Article 6.2 sentence 2 of the Basic Law) as an obligation to act in a manner which does justice to the best interests of the child (BVerfGE 79, 51 (66-67)) and which is in line with the children’s fundamental rights. Here, the parental rights are also restricted by the obligation to abide by the law: Parents have to refrain from unlawful acts towards their children, and in particular are not to involve the children in unlawful conduct as persons concerned.

2. Minors must be represented in proceedings before the Federal Constitutional Court by a supplementary curator if, because of a clash of interests, is not ensured that those entitled to represent them will defend their interests (see BVerfGE 72, 122 (135); 75, 201 (214-215)). The same applies constitutionally to proceedings before the family courts and the guardianship courts, certainly if a decision is taken which is significant for the future of the child and, because of a clash of interests between parents and child, the interests of the child cannot be sufficiently defended by the parents. Accordingly, in the context of the reform of the law of parent and child the institution of a “children’s guardian (curator ad litem )” (§ 50 of the Act on Matters of Non-contentious Jurisdiction) has now been introduced as on 1 July 1998 (Federal Law Gazette I 1997 p. 2958).

If the court ruling on a conflict between parents has an impact on the future of the child, it must be aligned to the best interests of the child, and must accommodate the child in his or her individuality as a subject of fundamental rights (see BVerfGE 37, 217 (252)). The obligations of protection emerging from Article 6.2 sentence 2 and Article 2.1 of the Basic Law require precautions to be taken for court proceedings not only under substantive law, but also under constitutional law which guarantee adequate accommodation of the fundamental rights position of the child in question (see BVerfGE 55, 171 (179); 79, 51 (66-67)).

Without a curator ad litem , the child in question would rely on the submission of the parents and the investigations carried out by the court, whilst both parents would be able to pursue and defend their interests independently. Such proceedings would not sufficiently ensure that the best interests of the child are respected if the parents pursue the proceedings to defend their own interests. Although the judge is obliged to defend the best interests of the child, and hence to accommodate the interests of the children, defending interests within the meaning of representing a party can however not be replaced thereby because the judge must remain neutral.

3.a) The fundamental rights standards also determine the interpretation and handling of international agreements which in accordance with Article 59.2 of the Basic Law have become legally binding by virtue of a law approving an international agreement. International agreements which require interpretation and application by the national courts are to be interpreted in light of national constitutional law. In this framework, the purpose intended by the contracting parties is to be applied as comprehensively as possible. The general rules and principles of international law must also be applied here which relate to the specific area of the contractual regulation (see BVerfGE 46, 342 (361-362) with further references).

b) The Hague Child Abduction Convention is obliged to ensure the best interests of the child in the same way as German constitutional law. Its Preamble underlines the significance of the best interests of the child, and guarantees that they are served in the interaction between return as the standard procedure (Article 12.1 of the Hague Child Abduction Convention), and exceptions in accordance with Articles 13 and 20 of the Hague Child Abduction Convention, in accordance with which decisions concerning the return of the children do not take place if they are irreconcilable with the best interests of the child (see E. Pérez-Vera, Erläuternder Bericht zum Haager Übereinkommen über die zivilrechtlichen Aspekte internationaler Kindesentführung , Annex 1 to Denkschrift der Bundesregierung zum Abkommen , Bundestag printed paper (Bundestagsdrucksache – BTDrucks )11/5314, p. 41, marginal nos. 24-25). A comparison with the case-law of the courts of other contracting parties also confirms that the Hague Child Abduction Convention is aligned with the best interests of the child (see the statement of the Permanent Bureau of the Hague Conference on Private International Law on proceedings 2 BvR 982/95, ILM 35 (1996), 529 (544 et seq.)).

II.

1. The Hague Child Abduction Convention contains the presumption that immediate return to the previous place of residence in principle best complies with the best interests of the child. This presumption may be refuted in individual cases (Article 13 of the Hague Child Abduction Convention). This provision is intended to bring the fundamental right positions of the parents and children concerned into a proper equilibrium.

a) Immediate return of the child to his or her last place of habitual residence in principle serves the best interests of the child because it best preserves the continuity of his or her circumstances. Return to the place of “habitual residence” accommodates the interests of both parents because the original international jurisdiction for the rights of custody ruling is conserved, and hence a situation is avoided in which a parent draws a factual advantage from the unlawful abduction of the children. Finally, the return order, which obliges the abducting parent to return the child, is likely to have a general preventive impact.

b) The exception clauses in Articles 13 and 20 of the Hague Child Abduction Convention take account of the fact that returning the child to his or her last place of habitual residence may be incompatible with the best interests of the child in individual cases. It is possible to refrain from returning a child in particular if such a return would place the child in an intolerable situation, or if the child objects to being returned in a manner which is material, given his or her age and degree of maturity.

2. The restrictive application of the exception clauses by the non-constitutional courts is constitutionally unobjectionable. The purposes of lending constancy to the child’s situation, of ensuring a rights of custody ruling at the original place of residence in compliance with the actual circumstances, and of countering child abductions in general, indicate in principle that it is reasonable to order immediate return. For this reason, not all hardships justify the application of the exception clause; rather, only exceptionally do grievous impairments of the best interests of the child which are particularly considerable, concrete and immanent oppose return (see Order of the First Chamber of the Second Senate of the Federal Constitutional Court of 15 February 1996 – 2 BvR 233/96 –, Neue Juristische Wochenschrift – NJW 1996, p. 1402 (1403)).

3. Hardships for the abducting parent as a rule do not give rise to such a disadvantage. The impairment of the best interests of the child, in conjunction with the separation of the child from the abducting parent, can be avoided in most cases by the abducting parent returning together with the child. If return is connected with state sanctions for this parent, these are to be accepted as a consequence of the unlawful abduction (see Order of the Third Chamber of the Second Senate of the Federal Constitutional Court of 18 July 1997 – 2 BvR 1126/97 –, Zeitschrift für das gesamte Familienrecht – FamRZ 1997, p. 1269 (1270); Bach, FamRZ 1997, p. 1051 (1056)).

III.

The application of the Hague Child Abduction Convention by the Higher Regional Court violates the fundamental right of the complainants re 2. and 3. under Article 6.2 sentence 2 in conjunction with Article 2.1 of the Basic Law and their claim under Article 103.1 of the Basic Law.

1. Interpretation and application of non-constitutional law are a matter for the non-constitutional courts; the Federal Constitutional Court only objects to the violation of constitutional law. The standards which have been developed by the non-constitutional courts for review of the application of non-constitutional law apply mutatis mutandis to the law of international agreements (see BVerfGE 94, 315 (328); see also BVerfGE 58, 1 (34); 59, 63 (89)) The Federal Constitutional Court is to review here whether the impugned ruling is based on a fundamentally erroneous view of the significance of the fundamental rights, and whether the result of the interpretation violates the fundamental rights asserted (see BVerfGE 30, 173 (188); Order of the First Senate of the Federal Constitutional Court of 29 October 1997 – 1 BvR 780/87 –, Europäische Grundrechte-Zeitschrift – EuGRZ 1998, p. 330 (335)).

2. The ruling of the Higher Regional Court is accordingly incompatible with the Basic Law. The Hague Child Abduction Convention is applicable to converse abductions. In this sense, the interpretation and application of Article 3 of the Hague Child Abduction Convention by the Higher Regional Court are constitutionally unobjectionable. In the special case of converse return applications, however, a more detailed examination of the best interests of the child using Article 13 of the Hague Child Abduction Convention is constitutionally required (a). More constitutional requirements emerge from the state’s obligation to ensure the best interests of the child to which the proceedings before the Higher Regional Court do not do justice (b).

a) aa) The complainant re 1. brought the children to Germany on his own initiative, after they had been abducted by their mother. In the meantime, they spent a longer period in France. For this reason, the Higher Regional Court should have examined whether a new “habitual residence” within the meaning of Article 3 of the Hague Child Abduction Convention had been established at the destination of the first abduction, and the return hence is to be qualified as re-abduction (see on this the references to US case-law in L. Silberman, Hague Convention on International Child Abduction: A Brief Overview and Case Law Analysis, Family Law Quarterly 28 (1994), pp. 9 et seq. (22-23)). This is the only way to do justice to the synchronism between the decision concerning the return of the child in accordance with the Hague Child Abduction Convention and the jurisdiction for the rights of custody ruling in accordance with Article 1 of the Hague Convention concerning the powers of authorities and the law applicable in respect of the protection of minors.

bb) The ruling of the Higher Regional Court that a new “habitual residence” within the meaning of Article 3 of the Hague Child Abduction Convention was established by reason of the children’s integration and the duration of their residence in France is constitutionally unobjectionable. It is aligned to the predominant view that “habitual residence” must be determined in purely factual and not normative terms (see for instance the material re the Hague Child Abduction Convention, Bundestag printed paper 11/5314, p. 48 (marginal no. 66); C. von Bar, Internationales Privatrecht , Vol. II, 1991, marginal no. 333), and continues to apply in the context of the case-law on establishment of a new habitual residence in accordance with Article 1 of the Hague Convention concerning the powers of authorities and the law applicable in respect of the protection of minors if a child is taken unlawfully to this new place (see BGH, FamRZ 1997, p. 1070; BGH, NJW 1981, p. 520 (521); Karlsruhe Higher Regional Court, FamRZ 1993, p. 96 (97); Hamm Higher Regional Court, FamRZ 1991, p. 1346 (1347) and p. 1466 (1467-1468); Celle Higher Regional Court, FamRZ 1991, p. 1221 (1222)).

The view of the court that the annual period of Article 12.1 of the Hague Child Abduction Convention does not apply to the determination of the habitual residence within the meaning of Article 3.1 (a) of the Hague Child Abduction Convention is also constitutionally unobjectionable. Analogous application of the annual period (see Staudinger-Pirrung, Vorb. zu Artikel 19 EGBGB , marginal no. 647) is not required by a fundamental right, nor is it the only possible interpretation. The decision of the Higher Regional Court not to analogously apply the provision regarding the annual period is particularly favoured by the fact that the presumption linked with the period is intended to formalise the preconditions for the return claim in accordance with Article 12.1 of the Hague Child Abduction Convention, and hence make easier its implementation in practice, but not to favour unilateral self-help measures carried out by a parent.

cc) The ruling of the Higher Regional Court to not examine in greater detail the preconditions of Article 13.1 (b) and 13.2 in conjunction with 13.3 of the Hague Child Abduction Convention contradicts the mandate of protection under Article 6.2 sentence 2 of the Basic Law and the fundamental right of children under Article 2.1 of the Basic Law. At the time of the ruling of the Higher Regional Court, converse return applications were pending in accordance with the Hague Child Abduction Convention. The Higher Regional Court itself had to rule on a return application of the applicant of the initial proceedings in respect of the unilateral return of the children by the complainant re 1. At the same time, the appeal on a point or points of law of the complainant re 1. was pending before the Court of Cassation. This does not rule out that, in following on from the order of the Higher Regional Court to return the children to France, the Court of Cassation orders a renewed return to Germany. The purpose of the Hague Child Abduction Convention to establish the residence of the child until a rights of custody ruling is handed down, to rescind the consequences of unlawful abduction and to return the child to the place of the future rights of custody ruling would hence be missed. Subjecting the children to such a to-and-fro would contradict the best interests of the child, and would be intolerable for them if the court does not identify special indications justifying a return despite the risk of a further change of location. The Higher Regional Court did not attach sufficient weight to these special circumstances.

b) Protection of fundamental rights also determines the form and application of procedural law (BVerfGE 53, 30 (65); 55, 171 (182); 79, 51 (66-67)).

aa) From the constitutional entrenching of the best interests of the child in Article 6.2 and Article 2.1 of the Basic Law in conjunction with the right to a hearing in court (Article 103.1 of the Basic Law) emerges the obligation to ensure the best interests of the child in procedural terms by appointing a curator ad litem to defend the interests of the children even in the family court proceedings.

The decision concerning the return of the child is of considerable significance for the interests of the children because it determines their social surroundings and can remove the children from the immediate attention of the parent currently taking care of them. For this reason, the constitutional fundamental rights protection of the children and their right to a hearing in court demand that the proceedings be shaped in such a way as to ensure independent representation of the interests of the child. This task is in principle a matter for the parents. If, however, the parents have made it abundantly clear through the unlawful abduction of their children that they wish primarily to assert their own interests, their interests may clash with those of their children. In this case, the children must be granted the possibility to assert their own interests, which may perhaps be correctly recognised or formulated by neither the parents nor the court, with a degree of independence in the proceedings which meets the requirements of a legal hearing (Article 103.1 of the Basic Law). For children whose age and maturity do not permit them to defend their procedural rights, this is carried out by a representative who is provided for by § 50 of the Act on Matters of Non-contentious Jurisdiction as a curator ad litem. Such a curator ad litem was not appointed for the complainants re 2. and 3. in the proceedings before the Higher Regional Court. For this reason, the fundamental rights of the complainants under Article 6.2 and Article 2.1, in conjunction with Article 103.1, of the Basic Law have been violated.

bb) Article 6.2 sentence 2 of the Basic Law furthermore requires that the children concerned are to be heard in the custody proceedings (see BVerfGE 55, 171 (182)). Decisions concerning the return of children in accordance with Article 19 of the Hague Child Abduction Convention are not to be regarded as rights of custody rulings (see Order of the Third Chamber of the Second Senate of the Federal Constitutional Court of 18 July 1997 – 2 BvR 1126/97 –, FamRZ 1997, p. 1269 (1270)). A hearing of the abducted child is therefore in principle not necessary in the proceedings in accordance with the Hague Child Abduction Convention. Because of the converse return applications, the non-constitutional courts have however to ascertain in the instant case how the children will cope with a return and possible re-return. This may take place via a hearing, where necessary also by an expert witness and by consulting information from the authority which has jurisdiction.

IV.

The violation against the best interests of the child at the same time gives rise to a violation of the parental right of the complainant re 1. under Article 6.2 sentence 1 of the Basic Law.

The parental right is a fundamental right to which each parent is individually entitled (see BVerfGE 47, 46 (76)). By virtue of the decision of the Higher Regional Court concerning the return of the child, the area protected by the parental right is affected because the children are removed from the influence of the father and he can no longer determine their place of residence.

When parents separate, it is unavoidable that both parents cannot have the same level of contact with and attention to the children. Since the parental rights of both parents are equivalent, only the best interests of the child may justify an incursion on the parental right of the respectively disadvantaged parent (see also BVerfGE 55, 171 (179); 92, 158 (178)).

A state ruling impairing the parental right but not serving the best interests of the child therefore violates Article 6.2 sentence 1 of the Basic Law. The ruling handed down by the Higher Regional Court is not compatible with the best interests of the complainants re 2. and 3. At the same time, it violates the parental right of the complainant re 1. under Article 6.2 sentence 1 of the Basic Law.

D.

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