Monday, July 14, 2014
The Hague Abduction Convention in Germany
The following are excerpts, without footnotes, of an article published in the Judges’ Newsletter on International Child Protection Vol. XX, Summer – Autumn 2013.
The full article is available on the website of the Hague Conference on Private International Law.
Concentration of Jurisdiction under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: Germany
By Judge Sabine BRIEGER, Judge of the Family Court, District Court of Pankow/Weißensee, Berlin, Judge Martina ERB-KLÜNEMANN, Judge of the Family Court, District Court of
Hamm, Hamm, and Dr Andrea SCHULZ, Head of the German Central Authority
The situation in Germany before concentration of jurisdiction took place
The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter the 1980 Child Abduction Convention) entered into force for Germany on 1 December 1990. Pursuant to German implementing legislation enacted by federal law of 5 April 1990, jurisdiction for Hague return cases was vested in all 620 German family courts with more than 1,000 judges. Family courts have existed in Germany since 1976 and are special sections in most local courts, as first instance courts dealing with family matters. The number of incoming applications (abductions to Germany) received by the German Central Authority was rather low in the beginning.
From 1995 to 2000 it became stable at an annual average of about 85 cases. Among these were between 35 and 45 cases per year which, even if they went to court, did not have to be decided, either because the application was withdrawn, the parties reached agreement or the matter was otherwise disposed of. In comparison with about half a million new cases annually in the family courts, each family judge dealt with a return case under the Convention, if at all, on an average of once during his or her professional life. The court decisions, though, showed that this system did not work well. Other Contracting States which had a significant number of cases with Germany (in particular the United Kingdom, France and the United States of America) complained about the length of return proceedings and their outcome. Even though there were – and still are – only two instances, court proceedings often lasted for a year, sometimes even two. Courts often treated them like custody cases, obtaining evidence through expert opinions, entering into in-depth considerations on the best interests of the child and easily accepting defences under Article 13(1) b).
The German Federal Ministry of Justice as the Ministry in charge of the 1980 Child Abduction Convention was the addressee of this international criticism, but the administration of justice as such is a matter for the states. Federal courts in civil and family matters only exist at Supreme Court level, and Hague cases do not come before that court. Due to the independence of the judiciary, the Federal Government had no way to influence the case law of the family courts.
Nevertheless, several binational judicial conferences were held between 1997 and 2001 (Anglo-German, Franco-German and US-German). Training at the German national level was also offered but not readily attended as it was difficult to predict for any particular judge whether he or she would ever be faced with a Hague return case.
As international political pressure persisted, the Federal legislator concentrated jurisdiction for cases under the 1980 Child Abduction Convention (all return applications and access applications brought by the German Central Authority based on Article 21 of the Convention) in 24 family courts. This was done nine years after the entry into force of the Convention for Germany by way of a change to the federal implementing act, which entered into force on 1 July 1999.
Germany has 16 states and 24 courts of appeal. Jurisdiction for Hague cases at first instance was concentrated in one family court per district of an appellate court, namely at the family court in whose district the court of appeal is located. While the concentration in 24 courts was influenced by respect for federalism and existing structures of court administration, the choice of the particular courts was inspired by the fact that legal literature and collections of decisions existed in the libraries of the appellate courts but not necessarily in the library of each family court. Hence the choice of the family court closest to the court of appeal. The federal implementing act contains a clause enabling states to further concentrate jurisdiction by ordinance. One state (Lower Saxony) has done so and concentrated in one out of three courts which had jurisdiction for Hague cases under federal law.
Since 1 March 2001, the act implementing the 1980 Child Abduction Convention also ensures that parallel proceedings are avoided and strengthens Article 16. If Hague return proceedings are brought before the specialised court and proceedings for return, access or the surrender / delivery of a child are already pending before the local family court in whose district the child is present, section 13 of the implementing act obliges the local court to transfer the proceedings to the specialised court before which return proceedings are pending. If proceedings with regard to the three objects mentioned above are instituted later, the specialised court before which return proceedings are pending has exclusive jurisdiction for these matters. The specialised courts are more likely to be aware of Article 16 of the Convention which prevents them from deciding on the merits of custody, under the conditions set out, even if they have (international) jurisdiction. Moreover, they also know that pursuant to Article 10 of Regulation (EC) No 2201/2003 (hereinafter Brussels IIa) and Article 7 of the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (hereinafter the 1996 Child Protection Convention), in the case of abductions falling under the scope of these instruments they would not even have jurisdiction for custody issues. And in the exceptional case of refusals under Article 13 of the 1980 Child Abduction Convention, they are aware of their obligations under Article 11 paras 6-8 of Brussels IIa.
Experience shows that it is equally important in particular for larger courts with many judges to also concentrate jurisdiction for Hague cases internally. Because of judicial independence which is protected by the German Constitution, this cannot be done by law or ordinance but has to be done by rules of court at each individual court. In the meantime, at first instance 15 family courts have concentrated on one or two judges internally. In four courts, three or four judges are handling Hague cases, and only three courts have more than five judges dealing with them (Koblenz: 5, Karlsruhe: 8, Frankfurt: 11). The picture at the appellate level looks even better: 19 courts of appeal have concentrated on one panel (senate) and three courts of appeal on two panels (senates). This is facilitated by the fact that the rules of court enacted by the body elected for such purposes at each appellate court normally attribute jurisdiction for a number of first instance courts in the district to each panel of the appellate court. Therefore all appeals against decisions of the one first instance court hearing Hague return cases in the whole district of the Court of Appeal will come before the same panel(s). Leaving aside substitutes in cases of absence, this makes a total of 64 judges at first instance and 92 judges at the appellate level in Germany.
Concentration alone, however, is not sufficient. The Federal Ministry of Justice, and since 2007, the Central Authority within the Federal Office of Justice (established in 2007) has been hosting two conferences per year since 2000 for German judges having jurisdiction for Hague cases. Both conferences per year have the same programme, and the agenda contains basic information for newcomers, information about new developments and extensive room for an exchange of experience among participating judges. Speakers are mainly judges and Central Authority staff (all three co-authors of this article play a major role at these conferences), but also legal and social professionals handling Hague cases and sometimes academics. In addition, judges from two other jurisdictions are normally invited to attend and to report on their country’s system with regard to the 1980 Child Abduction Convention.
Benefits resulting from concentration of jurisdiction in German experience
Concentration of jurisdiction has led to more expeditious and effectively conducted proceedings. Already by 2008 43% of Hague return applications in Germany were resolved by the court within 6 weeks. The average time to reach a decision or an agreed solution, especially at first instance, decreased significantly.
Receiving a Hague return application means at first several hours of work to read the application carefully, to think about difficult judicial questions, to work out an exact timeframe, to contact a guardian ad litem to represent the child, and to choose an interpreter. The formal requirements should not be underestimated. It is obvious that it is much easier to do all this when one has experience. Each of the two judicial co-authors of this article has dealt with more than 50 Hague return cases so far, although it has to be admitted that most of the other German judges have heard fewer Hague cases. We assert that the more return cases one has heard, the easier it is to deal with the formal procedure as well as with substance. Concentration of jurisdiction ensures the expertise of judges.
Cases under the 1980 Child Abduction Convention are very specialised proceedings, different from custody or access proceedings. Knowledge of international legislation and case law as well as resources like the Central Authorities, network judges or the help offered by the website of the Hague conference should be present in the mind of a judge deciding return cases. This cannot be expected from a judge who only hears an abduction case once or twice a year. But it can be ensured when judges decide several cases a year. Resources can also be used more reasonably: judicial training in this field needs to be addressed to a few judges only and can be offered at a high level. International and national networks can also be created among the specialists. Specialisation also means relief for the other courts which do not get Hague cases anymore and which can contact the specialists with their questions on international family law arising in other cases.
Courts can be created where judges are experts in international family law. In sensitive and urgent return proceedings, the situation for the children is insecure and provisional. By creating specialised courts it can be ensured that the best interests of the children as defined by the 1980 Child Abduction Convention are the primary focus. Additionally, special techniques like mediation can be used more effectively if the courts are specialised. In Germany a national working group of different professionals involved in Hague return proceedings and in mediation helped to find an effective way to implement mediation into court proceedings without causing delay. Specialisation of courts also gives room for specialisation of attorneys. The latter has taken place in Germany to some extent but not yet as much as would be desirable.
Concentration of jurisdiction in other areas
In 1999, jurisdiction was only concentrated for cases under the 1980 Child Abduction Convention (return and access as explained above) and for the recognition and declaration of enforceability of foreign custody and access orders under the European Convention of 20 May 1980 on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children. As Brussels IIa became applicable in Germany on 1 March 2005 and the 1996 Child Protection Convention on 1 January 2011, recognition and declaration of enforceability of custody and contact orders under those instruments were added, as well as cases under Articles 41 and 42 of Brussels IIa (direct cross-border enforcement of contact orders and certain return orders) and Article 48 of Brussels IIa (practical arrangements for the exercise of access) and the procedure for obtaining consent for cross-border placement of children in Germany (Article 56 of Brussels IIa, Article 33 of the 1996 Child Protection
For the reasons given under 2., concentration has proven so successful in international child protection matters that it was subsequently also introduced for inter-country adoption (recognition and determination of effects), recognition and declaration of enforceability of foreign decisions under the Hague Convention of 13 January 2000 on the International Protection of Adults and, most recently, Council Regulation (EC) No 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations.
To sum up: still each Hague case has difficult components but we feel in a privileged position in Germany, now that judges with more experience handle these cases. Although the parties and sometimes their attorneys have to travel a longer distance to the court they frequently inform us afterwards that this was easy to accept because in return they were able to have their case heard by a more knowledgeable court. That means that in addition to better experience and knowledge within the courts, specialisation also leaves the persons involved more satisfied.