Family court of Vechta
05 May 1992
Docket No. 16250 - 12 F 304/91 HK
H vs. H. WMHFN -1
The petition for return of the children to England is denied.
Every party has to pay his/her own costs. The value at issue is
set at 6.000,- DM.
Reasons :
The parties are husband and wife living separately. There are two
children of the marriage living with the respondent (Wife).
The British court entered its dccision of 19 August 1991 as
follows: WMHFN -2
It is declared that the children were
wrongfully removed from the
jurisdiction of this court. It is
hereby ordered that the respondent
(Wife) has to return the aforementioned
children within 14 days into the
jurisdiction of this court. It is
further ordered that the petitioner
(father) is awarded joint custody of
the children.
Then the petitioner (father) filed with the Federal Attorney at
the Federal Court for the return of the children to England.
The children have been heard. The welfare officer has filed a
report. There has been evidence taken whether the return of the
children would result in grave danger of mental harm for the
childen (Art. 13(b) of The Convention on the Civil Aspects of
International Child Abduction, done at the Hague on 25 Oct 1980
[The Convention]) by a report of the Psychologist.
There are not sufficient grounds to issue the order requested.
The court saw no need to investigate further the question whether
there really was a removal against the wishes of one parent
within the meaning of Arts. 3 and 12 of The Convention, because
according to the statements of the children and according to the
facts as undisputed between the parties the question most
pressing was whether "a return of the children resulted in grave
danger of mental harm for the children", Art. 13(b) of The
Convention, so that but for Art 13(b) the court would have been
obliged to order the return of the children.
The children have also declared unmistakenly when they were heard
that they want to stay with their mother and that they don't want
to return to Enland. This wish of the children is quite
conceivable when considering that they have spent the major part
of their life in Germany. Both speak German fluently for their
age nothwithstanding the petitioner (father)'s testimony to the
contrary. WMHFN -3
Because of the results of the hearing the court ordered a child
psychologist's report as to the consequences of their return. The
finding's in the expert's report is convincing and to which the
court refers, that a return of the children would lead to the
grave danger of mental harm for them. WMHFN -4
Accordingly the petition had to be denied.
Contributed by:
Dr. Donald J. Cramer
Rechstsanwalt
Bruderstrasse 2
8000 Munchen 22
Federal Republic of Germany
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1. All footnotes were written by William M. Hilton, CFLS
2. See Art 15 for the effect of this finding.
3. This would appear to be a case of first impression as to the
language of the children being determinative as to their
return when used in conjunction with the wishes of the
children. Nothing is said about the age of the children.
This decision appears to be contra to the great weight of
decisions in other countries.
4. Perhaps the presentation of a Safe Harbour Order to the FRG
court would have circumvented this decision. See SAFEHBR.ORD
on the Hilton House BBS for typical language.