Information Note on the Court’s case-law 17

April 2000

Tiemann v. France and Germany (dec.) - 47457/99 and 47458/99

Decision 27.4.2000 [Section IV]

Article 8

Article 8-1

Respect for family life

Decision of the German courts to order the return of the applicant’s children to their mother in France and refusal of the French courts to order return of the children to the applicant in Germany: inadmissible

The appli cant, a German national, and his wife, a French national, are the parents of two children born in 1990 and 1994. They separated in January 1997. Two sets of proceedings were then brought: one in Germany and the other in France. With respect to the German p roceedings dealing with the granting of parental authority, in a decision of 18 February 1997, the Sulingen District Court re-established the joint exercise of parental authority after hearing the mother’s assurances that she would not illegally leave Germ any with her children. However, in July 1997 the mother removed her children from Germany without the father’s knowledge to settle with them in France. As a result, the District Court granted the applicant the right to determine the children’s place of res idence, ordered the mother to return the children and declared the mother’s removal of the children abroad to have been “wrongful” within the meaning of the Hague Convention of 25 October 1980. In March 1998 the applicant had the children abducted in Franc e and had them brought back to him in Germany. The mother then made an application for the return of her children. This application was rejected by the District Court but allowed by the Celle Court of Appeal, which ordered the return of the children to the ir mother. That decision was quashed by the Federal Constitutional Court, which referred the case back to the same Court of Appeal. The Celle Court of Appeal then appointed an expert in order to determine to which parent it was appropriate to grant custody of the children and appointed a lawyer to protect the interests of the children. In his report the expert found that while both parents were capable of bringing up the children, after a detailed and reasoned analysis he favoured the return of the children to their mother. On 12 March 1999 the Celle Court of Appeal, after hearing the parents, the children and the expert, ordered the return of the children to their mother, her domicile being their habitual residence within the meaning of the Hague Convention . The Court of Appeal held that the applicant had not proved that returning the children to France would expose them to physical or psychological harm or would place them in an intolerable position, factors which would prohibit such a return under the Hagu e Convention. Thus basing its judgment on the clear and apparently well-founded conclusions of the expert report, which made it unnecessary to grant the applicant’s request for a second expert opinion, the statements made by the expert at the hearing and t he submissions of the children’s lawyer, the Court of Appeal concluded that the return of the children to their mother would be in their interests.

In March 1999 the Federal Constitutional Court declared an appeal lodged by the applicant against that decis ion inadmissible and the mother took the two children back to France. At the same time, proceedings commenced by the mother’s petition for divorce in the Blois tribunal de grande instance were taking place in France. In August 1997 the judge with jurisdict ion for family matters (JAF) permitted the wife to live apart from her husband, with her children at her domicile in France. On 25 September 1997 the JAF, on an application by the applicant and State Counsel, held that even though the removal of the childr en by the mother had been wrongful, a return could not be foreseen as such a return would result in a grave risk or an intolerable situation for the children within the meaning of the Hague Convention. The applicant appealed against that decision. In March 1998 the Orleans Court of Appeal, at the end of a detailed, reasoned decision which indicated the psychological harm and the intolerable situation for the children which could result from returning them to Germany, upheld the decision of 25 September 1997 . The applicant lodged an appeal on points of law against that decision but the Court of Cassation rejected it in June 1999. A new application for the transfer of the children to Germany was filed by the applicant with the JAF, who dismissed it on 13 Janua ry 2000. However, given the easing of the family situation since the summer of 1999, the applicant was granted access and residence rights in respect of both children.

Inadmissible under Articles 8, 6(1) (fairness, independence and impartiality, reasonable time), 14 taken together with 6 and 8, 5 of Protocol No. 7: Both the German decision at issue, that is the Celle Court of Appeal’s decision of 12 March 1999, and the decisions of the French courts fixing the children’s place of residence as the home of th eir mother, had constituted interference with the applicant’s right to respect for family life. Those decisions had been in accordance with the law since they had been based on the Hague Convention, which was applicable in the German and French legal syste ms. They had pursued the legitimate aim of protection of the rights and freedoms of others. As to whether the German decision was “necessary in a democratic society”, the Court found that it had been based on both relevant and sufficient reasons - since th e Celle Court of Appeal had based its decision that it was in the interests of the children to live with their mother on a large body of documentary and oral evidence - and that the Celle Court of Appeal had been in a better position than the European Cour t to strike a fair balance between the conflicting interests in the case. That decision had not been disproportionate in relation to the legitimate aim pursued, given, in particular, the margin of appreciation of the authorities over the matter. As for the matter of the decision-making process and in particular the complaint concerning the expert report, the Court found that there was no reason to believe that this process had not been fair or that the applicant had not been permitted to play a role which w as sufficient for the protection of his interests. Likewise, as to whether the French decisions had been “necessary in a democratic society”, it appeared that those decisions had been based on relevant and sufficient reasons, in particular, taking into acc ount the seriousness of the conflict between the parents. In this way, taking into account the more favourable position of the French courts to determine the interests in this case and the margin of appreciation under Article 8(2), the decisions had not be en disproportionate in relation to the legitimate aim pursued, in spite of the very long period of time taken to hear the appeal on points of law, which was explained by the fact that the case was a very sensitive and contentious one: manifestly ill-founde d.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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