Summary:

I.

The first applicant (the ‘mother’) and her ex-partner have a son born in 2016 (the second applicant). All three are Ukrainian nationals and were residents in Ukraine at the time. The parents retained joint custody of their son following their divorce in 2018, presided over by the Ukrainian courts. The court ruled that he should live with his mother. The father was granted visitation rights at the beginning of 2022. After the war began, the applicants left the country for Germany unbeknownst to the father, who only learned of this through social media in September 2022.

The father applied for the return of the son under Article 12 of the Hague Convention with the German courts. The family court rejected the application, stating that the return to a war zone would expose the son to specific dangers and constitute a grave risk of physical or psychological harm (Article 13.1.b of the Hague Convention).

The father appealed the decision, stating that the part of Ukraine he lived in was unaffected by the war. The Higher Regional Court granted the appeal ordering the mother to return the son to Ukraine. The Higher Regional Court held that for refusing to order the return under Article 13.1.b of the Hague Convention, the entire country would have to be a war zone. It concluded that the grounds for refusal under Article 13.1.b did not apply here since the son only had to be returned to the country and not a specific part of it. The fact that rocket and air strikes were taking place throughout the country and that the German authorities had issued travel warnings did not automatically lead to an unusually serious, significant, specific and current impairment of the child’s welfare.

The applicants returned to Ukraine and stayed there for more than three weeks. They later returned to Germany. In the meantime, the father has filed another application to return the child to Ukraine. According to counsel for the first applicant, the proceedings are pending before the family court, which has issued a ban on border crossings for the duration of the proceedings valid for all countries other than Ukraine.

The applicants assert that the Higher Regional Court’s decision violated their rights under Article 2.1 in conjunction with Article 1.1 and of Article 6 of the Basic Law.

II.

The Federal Constitutional Court dismissed the constitutional complaint as inadmissible.

The son does not have standing due to his age. He also lacks sufficient representation.

The mother does not have the necessary legal interest to bring proceedings in her own name. Such legal interest must still exist at the time of the decision of the Federal Constitutional Court. The interest may continue to exist even after the relief sought has been achieved if the clarification of a constitutional issue of fundamental importance would otherwise be prevented and the encroachment on fundamental rights appears particularly severe, a repetition of the challenged measure is to be feared or the measure continues to have an adverse effect. The applicant bears the burden of substantiation.

Based on the predominant interpretation of statutory law, the obligation to return the child under the Hague Convention is fulfilled even in cases of only temporary return, provided that the duration is long enough (usually exceeding three weeks) to grant the claimant parent an opportunity to obtain legal measures preventing re-emigration. It is not necessary that a new permanent residence be established in the country.

Because the return obligation has been fulfilled, no further measures can be ordered against the mother. The order’s adverse effect on the mother has therefore been eliminated.

Even though the mother removed the son from Ukraine again, this did not revive the original order’s adverse effect. It may, however, be considered a renewed abduction, giving the father grounds to again petition the court for the son’s return. The Federal Constitutional Court did not decide whether this establishes a risk of repetition, because the mother’s application is inadmissible as she failed to show how the Higher Regional Court’s decision infringed her constitutional rights. Since the Federal Constitutional Court had decided on similar cases before, the mother would also have had to engage with these decisions in her submissions.

In an obiter dictum, this Court criticised the Higher Regional Court’s return order. The fundamental right to provide parental care under the first sentence of Article 6.2 of the Basic Law includes the right of the parents to care for and raise their children free from state influence and interference. Each parent is afforded this protection in their own right. In exercising the right, parents must respect the child’s well-being. This Court may only examine whether the specific application of the ordinary law constitutes a violation of constitutional principles. If the child’s well-being is violated
by a return order under the Hague Convention, this generally also constitutes a violation of the fundamental right to provide parental care.

The ordinary courts must show that the requirements under Article 8 ECHR as to the standard and scope of the substantiation of decisions have been fulfilled. Doubts remain as to whether the return order respects the mother’s fundamental rights. The reasons given by the Higher Regional Court for denying the existence of a grave risk of physical or psychological harm to the son in the event of his return to Ukraine and its failure to engage with existing case-law and to sufficiently address its examination of the son and other expert witnesses, suggest that Article 13.1.b of the Hague Convention was not duly applied.