FIFTH SECTION

Application no. 5937/12 Terje LESTEBERG and Helena SIEMONS-LESTE BERG against Germany lodged on 23 January 2012

STATEMENT OF FACTS

The applicants, Mr Terje Lesteberg and Ms Helena Siemons-Lesteberg , are Norwegian nationals. Ms Siemons-Lesteberg also has German nationality. The applicants were born in 1973 and 1979 respectively and live in Mellinghausen in Germany . They are represented before the Court by Mr L. Brettschneider , a lawyer practising in Sulingen .

A. The circumstances of the case

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

The applicants are the parents of a daughter M., born on 29 May 1999, who has both Norwegian and German nationality. The family originally lived in Norway .

1 . C ustody P roceedings

On 9 February 2010 the Regional Authority of Oslo and Akershus in Norway , at the request of the local Youth Office of the Community of Frogn , withdrew the applicants ’ parental authority and transferred it to the Youth Office. The Regional Authority took note of the Youth Office ’ s submissions that the child M. displayed a retarded development, frequently missed school and lacked homework support, personal hygiene and medical care. Since 2006 the Youth Office had proposed family aid, which however, did not effectively change the situation. According to the Youth Office, the parents lacked sufficient understanding for the girl ’ s problems and for the need to take care of her, to help and to encourage her. The Youth Office proposed to place the child M. in a specially qualified foster family in order to give her a chance to optimal development.

The applicants submitted in reply that the Youth Office had failed to recognise that M. displayed a slight learning difficulty and that they had not been offered adequate support.

The Regional Authority considered that the child M. needed special attention with respect to a stable and safe home and reliable guardians. The applicants loved the child, but were not able sufficiently to respond to the child ’ s specific needs. The child primarily grew up in a state of neglect. This situation could not be amended by family care measures. It followed that the child ’ s needs could be best catered for in a specially qualified foster family. The applicants were granted contact rights on one weekend per month.

On 12 February 2010, before the order was executed, the applicants left Norway together with their daughter M. and their son for Germany , where they have since resided. Subsequently, the Frogn Youth Office, assuming that M . had been taken to the Netherlands , instituted proceedings for the child ’ s return in that country.

2 . P roceedings under the Hague Convention

(a) P roceedings before the Celle District Court

On 3 June 2010 the Celle District Court, upon request of the Youth Office of the Community of Frogn , by interim order under Article 15 of the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”, see B., below) prohibited the applicants from changing the child ’ s place of residence.

On 10 June 2010 the Frogn Youth Office lodged an application with the District Court seeking an order under Article 12 of the Hague Convention for the child ’ s return to Norway.

On 19 July 2010 the District Court lifted its interim order and rejected the Frogn Youth Office ’ s application in the main proceedings. It noted that the child M. currently lived together with her parents, her brother and an aunt with her maternal grandmother. Since their arrival in Germany , the applicants had taken care of the child ’ s schooling in a special school for children with learning disabilities. Both the school ’ s director and officials from the Diepholz Youth Office, which had been in touch with the family since May 2010, had observed that M. had integrated into the class rapidly and had made remarkable learning progress. She had found several friends and started to communicate in German. She arrived in school on time and in decent clothes and always had her learning material and sandwiches with her. M. displayed strong bonds with her family. The Diepholz Youth Office did not observe any neglect and thus did not see any necessity to interfere with the family ’ s routine.

M., when personally heard, repeatedly emphasised that she wished to remain in Germany and wanted to return to Norway only during school holidays in order to see her friends there. Both the Diepholz Youth Office and the child ’ s curator ad litem pleaded that the child should remain in Germany .

The District Court considered that there was the grave risk that M. ’ s return to Norway would expose her to physical or psychological harm, within the meaning of Article 13 § 1 (b) of the Hague Convention. The court observed that, in the instant case, the child M. had not been removed by one parent from the other parent, but that both parents had travelled to Germany together with M. and her brother. As the parents intended to remain in Germany , M. would lose contact with her closest family in case of her transfer to a foster family in Norway . As the child had established a new home in Germany , her transfer to Norway would not constitute a return to a familiar situation. Against the background of M. ’ s learning disability, this would demand particular adaptation efforts, which would seriously exceed the strain normally imposed by a return.

Furthermore, M. had obviously made remarkable progress in school and was happy within her class. In case of her return to Norway , it would be subject to a medical assessment to which school M. would be sent. This would entail further delays. The District Court concluded that there was sufficient ground to fear that M. ’ s complete removal from her family, from her new social settings and from the beneficial schooling in the specialised institution would cause stagnation or even relapse of her personal and psychological development. The court finally considered that even if Article 13 of the Hague Convention was interpreted narrowly, these risks of physical or psychological harm exceeded the strain normally imposed by a return.

(b) Proceedings before the Celle Court of Appeal

On 6 August 2010 the Frogn Youth Office lodged an appeal.

On 30 September 2011 the Celle Court of Appeal, having heard all parties and having commissioned two separate expert opinions, modified the District Court ’ s decision and ordered the applicants to return the child to Norway before 21 October 2010. In case the applicants did not comply by that date, they were ordered to deliver the child and her passport to the Frogn Youth Office or to a person designated by the latter.

The Court of Appeal considered that the child ’ s removal from Norway was to be considered wrongful within the meaning of Article 3 of the Hague Convention, because the Frogn Youth Office had obtained custody over the child in view of placing her in a specially qualified foster family. The court further considered that there were no reasons under Article 13 § 1 (b) of the Hague Convention which would allow the court to refrain from ordering the child ’ s return. The court considered that this exception had to be interpreted narrowly and only applied on absolutely cogent grounds, which required the existence of a present – not just of a future or hypothetical – danger for the child ’ s welfare. It followed that the inevitable consequences of a change of residence, a change of the language and of the cultural environment were not sufficient for allowing an exception.

According to the Court of Appeal, such a present danger had not been established in the instant case. The court did not consider that the child ’ s return to Norway would jeopardise her welfare, as it was to be assumed that the parents would accompany their daughter. It followed that the child ’ s return to Norway would not entail a separation from her parents.

Furthermore, the court considered that the psychological expert had not sufficiently established that there was a concrete danger for the child ’ s physical or psychological welfare which would justify an application of Article 13 § 1 (b) of the Hague Convention. The child ’ s retarded development had been taken into account also in the Norwegian custody proceedings by ordering the child ’ s placement in a specially qualified foster family. The court did not see any reason to assume that this foster family, and, if appropriate, other specialists should not be able to offer her the necessary emotional support and to explain to her the new situation in an appropriate way. Furthermore, it was not even sure if the transfer of custody would eventually be executed. It was not to be excluded that the Norwegian authorities or courts, in the light of M. ’ s development during the last one and a half years, would see alternative possibilities for taking care of her in the future. However, it was entirely up to the Norwegian authorities to consider these options.

The Court of Appeal finally considered that the child ’ s return was not excluded under Article 13 § 2 of the Hague Convention. While it was true that M., when heard by the court, had unequivocally objected against a transfer to Norway . However, this provision had to be construed narrowly in light of the Hague Convention ’ s aim to allow for the child ’ s rapid return. Accordingly, the fact that the child orally submitted that she was opposed to the transfer was not sufficient. Furthermore, it had to be taken into account that M. ’ s development was retarded and that she obviously pursued the aim not to be separated from her parents. Subject to the condition that her parents accompanied her, M. was not even opposed to travelling to Norway .

On 17 October 2011 and 19 October 2011 the Court of Appeal rejected the motions to be heard ( Gehörsrügen ) lodged by the applicants and by M. ’ s curator.

(c) Further proceedings

On 21 October 2011 the Federal Constitutional Court ( Bundesverfassungsgericht ), by interim order on the applicants ’ request, temporarily suspended the execution of the Court of Appeal ’ s order of 30 September 2011. The court considered that the disadvantages which could be caused by the execution of the return order outweighed the disadvantages which could be caused by the temporary suspension of execution.

On 23 November 2011 the Federal Constitutional Court declined to accept the applicants ’ constitutional complaint for adjudication without giving further reasons.

On 7 March 2012 the German Federal Justice Office ( Bundesamt für Justiz ) acting on behalf of the Frogn Youth Office, lodged a request with the Celle Court of Appeal to execute the return order of 30 September 2011.

The applicants instituted proceedings for the retransfer of parental authority in Norway which are currently pending before the Norwegian courts.

B. Relevant provisions of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction

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 2

“Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available.”

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 or 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.”

Article 20

“The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.”

COMPLAINT

The applicants complain under Article 8 of the Convention about the return order issued by the Celle Court of Appeal on 30 September 2011. They submit that the impugned decision prevented them from continuing to live as a family in Germany . Furthermore, execution of the return order would result in their separation from their daughter M., having particular regard to the fact that they did not wish to return to Norway , were they risked criminal prosecution for having abducted their daughter. They further submitted that M. ’ s return to Norway was not necessary and that a separation from her family would gravely jeopardise the child ’ s welfare.

QUESTIONS TO THE PARTIES

1. Has there been a violation of the applicants ’ right to respect for their family life, contrary to Article 8 of the Convention?

2. The parties are invited to submit the following documents:

- the minutes of the hearing before the Celle Court of Appeal of 27 September 2011

- the expert report prepared by Dr H. dated 3 June 2011

- the supplementary expert report prepared by the psychological expert S. dated 6 June 2011.

3. The Norwegian Government are also invited to submit comments on the Article 8 issues of the case.