Communicated on 11 September 2015

FIFTH SECTION

Application no. 8733/15 Klaus-Dieter FUHRMANN against Germany lodged on 11 February 2015

STATEMENT OF FACTS

The applicant, Mr Klaus-Dieter Fuhrmann , is a German national who was born in 1961 and lives in Kreuztal (Germany) and La Palma (Spain) . He is represented before the Court by Mr D. Blumberg , a lawyer practising in Kiel .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The a pplicant is the father of two sons, born in 2002 and 2003 respectively . The applicant and his ex-wife were divorced on 16 April 2011 in La Palma where the family, all G erman nationals, used to live. With regard to child custody, t he Los Llanos de Ariadne/La Palma Family Court granted both parents the so - called “ patria potestad ” (parental authority) , wh ile the so ‑ called “ guarda y custodia ” (custody) was transferred to the mother. On 13 June 2011 the applicant appealed. On an unknown date, the Santa Cruz de Tenerife Court of Appeal dismissed his appeal and upheld the first instance judgment.

In the meantime, the two boys continued to live with their mother in Spain. On 21 June 2011 the children left the country to spend their holidays with their grand-parents in Germany. The applicant was not informed. At the end of the holidays, the mother decided that the boys should not return to Spain and enrolled them in German schools. In November 2011 and apparently before the Santa Cruz de Tenerife Court of Appeal had given its judgment , the mother also left Spain for Germany, and joined the children.

On 10 November 2011 the applicant lodged a request for an interim injunction with the Schleswig Family Court to secure the prompt return of the children to Spain in accord ance with the Hague Convention on the Civil Aspects of International Child Abduction (hereinafter “The Hague Convention”) . On 21 December 2011 the court dismissed the request.

The applicant appealed. The Schleswig Court of Appeal asked for an expert opinion on whether or not the mother had – by virtue of the Spanish Family C ourt ’ s decision of 16 April 2011 – the right to take the children to Germany without the applicant ’ s consent. The expert came to the conclusion that the “ guarda y custodia ” which had been transferred to the mother did not give her any right to take the children to Germany without the applicant ’ s consent.

On 13 March 2013 a Spanish judge rapporteur at the Los Llanos de Ariadne/La Palma Special Court for the Prosecution of Domestic Violence against Women stated that the mother had not committed a criminal offence under Section 225a of the Spanish Criminal Code by taking the children to Germany .

On 13 February 2013 the parties concluded a friendly settlement before the Schleswig Court of Appeal according to which the mother had to take the children back to Spain by 5 April 2013 at the latest.

In spring 2013 the mother and the two boys returned to Spain. In accordance with the friendly settlement, the children continued to live with their mother.

The mother then lodged a request with the Los Llanos de Ariadne/La Palma Family Court requesting permission to return to Germany with the two children. On 19 April 2013 the court declined to consider this request, holding obiter dicta that Section 158 of the Spanish Civil Code did not prevent her from determining the children ’ s place of residence as she already held the “ guarda y custodia ”.

On 26 April 2013 the mother left Spain and returned to Germany with the boys, again without the applicant ’ s consent.

On 4 June 2013 the applicant lodged a request with the Schleswig Court of Appeal for execution of the friendly settlement of 13 February 2013.

On 28 June 2013 the Court of Appeal dismissed his request, arguing that the mother had fulfilled all conditions set out in the agreement of 13 February 2013 and had acted in accordance with the Hague Convention by returning to Spain in spring 2013. In this respect it held that even a short stay in Spain could be considered as a return within the meaning of the Hague Convention. It further pointed out that the applicant had failed to ask the Spanish family courts for an interim injunction before the children had again left the country in April 2013.

On 10 July 2013 the applicant lodged another request with the Schleswig Family Court for the children ’ s promp t return to Spain . On 12 August 2013 the court granted the request, holding that the mother had to take the children back to Spain by 31 August 2013 at the latest, pursuant to Section 12 of the Hague Convention . The court also announced that enforcement measures would be ordered if the mother did not cooperate. It further held that the mother had apparently not disclosed all relevant facts to the Los Llanos de Ariadne/La Palma Special Court for the Prosecution of Domestic Violence against Women and that the latter had not decided on a change in custody at all. Moreover, the court outlined that the children had lived in Spain for a long time and that the impact of another change of school and environment was therefore acceptable.

On 16 September 2013 the mother appealed against this decision. On 21 October 2013 the Schleswig Court of Appeal dismissed her appeal as being time-barred.

On 1 November 2013 the mother returned to Spain with the boys. According to the applicant, the children did not go to school there and did not have any social contacts during their stay.

On 15 November 2013 the applicant lodged a request with the Spanish Family Court asking, inter alia, for the “ guarda y custodia ” to be transferred to him . The proceedings are still pending .

On 21 November 2013 the mother once again lodged a request with the Los Llanos de Ariadne/La Palma Family Court asking for permission to determine the children ’ s place of residence and to return to Germany with them. In December 2013 she left Spain with the children once again for Germany, without having received a decision in reply to her request and apparently without having been informed of the request lodged by the applicant on 15 November 2013.

On 19 February 2014 the Los Llanos de Ariadne/La Palma Family Court declined to consider the mother ’ s request holding obiter dicta that, contrary to the opinion that the expert had given before the Schleswig Court of Appeal in 2011/2012, as the holder of the “ guarda y custodia ” she could freely determine the children ’ s place of residence.

On 16 January 2014 the applicant lodged a request with the Schleswig Family Court seeking execution of the court ’ s decision of 12 August 2013. On 31 January 2014 the Family C ourt dismissed the request , arguing that the applicant had not asked the mother to hand the children over after they had left Spain in December 2013.

On 5 February 2014 the applicant explicitly asked his ex-wife to take the children back to Spain and to hand them over by 19 February 2014 at the latest. On 21 February 2014 the applicant lodged a further request with the Schleswig Family Court seeking execution of the court ’ s decision of 12 Augu st 2013.

On 12 March 2014 the Family C ourt granted the request and fine d the mother 5 , 000 euros (EUR) because she had refused to hand the children over to the applicant in order to take them back to Spain. It held that the mo ther had not complied with the Family C ourt ’ s decision of 12 August 2013, as a “short trip” to Spain could not be considered a “return” within the meaning of the Hague Convention. The mother appealed.

On 12 June 2014 the Schleswig Court of Appeal granted her appeal and quashed the Family Court ’ s decision of 12 March 2014. It held that the applicant had failed to ask his ex-wife to hand the boys over after the first deadline set in the friendly settlement had passed on 31 August 2013. Moreover, it outlined that, after her arrival in Spain in November 2013, according to the friendly settlement the mother had not been obliged to hand the children over to the applicant because she was only obliged “to hand them over in order to secure their return to Spain”. Furthermore, the court emphasised that the mother had already fulfilled all conditions set out in the Schleswig Family Court ’ s decision of 12 August 2013 by returning to Spain for only six or seven weeks in November/December 2013 and therefore had acted in accordance with the Hague Convention . Having failed to obtain a decision from the Spanish courts about custody within this time frame, the applicant had to bear the consequences and could not ask for execution.

On 4 August 2014 the Federal Constitutional Court declined to consider the applicant ’ s constitutional complaint, without giving reasons (no. 1 BvR 1951/14).

The applicant has not seen his children since 30 April 2011.

B. Relevant domestic law

The relevant provisions of the Hague Convention, which came into force in respect of Germany on 1 December 1990 , read as follows:

Article 1

“ The objects of the present Convention are:

(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.

...

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 5

For the purposes of this Convention –

(a) ’ rights of custody ’ shall include rights relating to the care of the person of the child and, in particular, the right to determine the child ’ s place of residence;

(b) ’ rights of access ’ shall include the right to take a child for a limited period of time to a place other than the child ’ s habitual residence.

...

Article 11

The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.

If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. ...

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:

...

(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.

Article 14

In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recogni s ed or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.

...”

The relevant provisions of the Act to Implement Certain Legal Instruments in the Field of International Family Law (International Family Law Procedure Act) read as follows:

Section 44

Coercive measures; enforcement proprio motu

“ (1) On infringement of a title to be enforced in Germany pursuant to Chapter III of Regulation (EC) No. 2201/2003, to the Hague Child Protection Convention, to the Hague Child Abduction Convention or to the European Custody Convention, such title being aimed at the delivery of persons or the regulation of access, the court should impose a coercive fine, and in the event of such fine not being recoverable, the court should order coercive detention. Where the imposition of a coercive fine offers no prospect of success, the court should order coercive detention.

(3) Where a child is to be delivered or returned, the court shall carry out enforcement proprio motu , unless the order is aimed at delivery of the child for the purpose of having access. Upon application by the obligee , the court should dispense with this. ”

COMPLAINTS

The applicant complained under Article s 8 and 6 § 1 of the Convention that the Court of Appeal ’ s decision not to enforce the Family Court ’ s final return order under the Hague Convention violated his right to respect for his family life as well as his right to a fair trial.

He alleged in particular that the Court of Appeal, in deciding on the mother ’ s appeal against the return order ’ s enforcement, had failed to take into account the principles and aims underlying the Hague Convention, namely the protection of one parent against illegal child abduction by the other parent. In his view, the Court of Appeal ’ s decision had rendered the return order meaningless. Although he had lodged a request with the Spanish Family Court asking for the “ guarda y custodia ” transferred to him after the children ’ s return to Spain in November 2013 , the Court of Appeal had attributed the risk that the Spanish Courts did not take a decision within a relatively short time frame solely to him. As a consequence, the Court of Appeal forced the parent staying in the country of habitual residence to constantly lodge new requests under the Hague Convention as soon as the abducting parent had again left the country, thereby significantly impeding legal protection and undermining the principles and aims underlying the Hague Convention .

QUESTION TO THE PARTIES

Has there been a violation of the applicant ’ s right to respect for his family life, contrary to Article 8 of the Convention?