PARADIS AND OTHERS v. GERMANY
Inadmissible
Peer Lorenzen
The application was lodged with the Court by a mother, Susanne Paradis, on behalf of herself and her four children Vanessa, Nina, Joshua and Sasha. Ms Paradis, born in 1966, is a German national. Her four children were born in 1985, 1994 and 1996 and are German and Canadian nationals. Ms Paradis currently lives in Hördt, Germany, while the children’s whereabouts are unknown. The respondent Government are represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. This application is closely related to application no. 4783/03, declared inadmissible by the Court on 15 May 2003. That application had been lodged by Ms Paradis on behalf of her four children. The Court left open the question as to whether Ms Paradis had to be regarded as an applicant in her own right. Ms Paradis, a German national, had been married to a Canadian national, Mr O., with whom she has three children (Nina, Joshua and Sasha). She has another daughter by a first marriage (Vanessa). After having left Mr O. in 1997, the Windsor Superior Court (Canada) granted Ms Paradis sole custody of Nina, Joshua and Sasha, while Mr O. was granted access. The court ordered Ms Paradis not to remove the children from Canada, unless Mr O. consented to it. In summer 2000 Ms Paradis and the applicants travelled to Germany for a two-week’s stay after having obtained Mr O.’s consent. However, they did not return to Canada after those two weeks had lapsed. Ms Paradis filed a petition for divorce in Germany and requested the sole custody of Nina, Joshua and Sasha. However, the Windsor Superior Court then granted Mr O. the children’s sole custody. On 28 September 2001 the Zweibrücken District Court (Germany) rejected Mr O.’s request to return Nina, Joshua and Sasha under the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”). On 26 June 2002 the Court of Appeal revoked that decision and ordered Ms Paradis to return the children to Mr O. On 8 August 2002 the Federal Constitutional Court refused to admit the complaint lodged by Ms Paradis on behalf of Nina, Joshua and Sasha. On 17 February 2003 the District Court ordered the court bailiff to execute the Court of Appeal’s decision of 26 June 2002. However, on 18 March 2003 his attempts failed due to the applicants’ explicit refusal. On 9 April 2003 the Court of Appeal vested the court bailiff with the right to use force against the applicants. On 30 April 2003 the Federal Constitutional Court refused to admit the applicants’ complaint. On 15 May 2003 the Court found that there was no violation of the applicants’ rights under Article 8 of the Convention and declared the application inadmissible as being manifestly ill-founded. On 19 May 2003 the court bailiff again tried in vain to execute the Court of Appeals’ decision of 26 June 2002. Ms Paradis declared that she had already brought the children to France four weeks ago and refused to disclose their whereabouts. On 21 May 2003 the Zweibrücken District Court ordered Ms Paradis’ coercive detention (Zwangshaft) according to section 33 §§ 1 and 3 of the Act on Non-Contentious Proceedings (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit) in order to obtain the children’s whereabouts (see “Relevant domestic law” below). It elaborated that the Court of Appeal had already decided in June 2002 that the children should be returned to Mr O. and that any further delay in executing this decision had to be avoided. The court furthermore found that the other coercive measure under section 33 of the Act on Non-Contentious Proceedings, a penalty payment, would not prove to be successful. Under those circumstances the court concluded that Ms Paradis’ detention was proportionate, but clarified that she would be released immediately once the children were returned. It furthermore held that due to the urgent nature of the case it had not been called for to hear Ms Paradis in advance. In this respect the court also pointed out that it had expected Ms Paradis to thwart her coercive detention. On 27 May 2003 the Court of Appeal rejected the applicants’ complaint and confirmed the lower court’s reasoning. On 31 July 2003 the Federal Constitutional Court refused to admit Ms Paradis’ complaint. The applicant Ms Paradis was detained for six months from 2 June 2003 to 1 December 2003. She did not disclose the children’s whereabouts and they appear to be still in hiding. “(1) If somebody is obliged by court order to carry out an action which merely depends on his will, to omit an action or to tolerate an action, the court may, unless the law provides differently, impose a penalty payment in order to ensure the compliance with its order. If a person has to be returned, the court may order coercive detention independently from the penalty payment. ... (3) .... Coercive detention (section 1) shall be announced, unless the execution of the court order is particularly urgent or if it has to be expected that the execution of coercive detention will be thwarted. ... Sections 901, 904 to 906, 909 § 1 and 2 and sections 910 and 913 of the Civil Procedure Law Code apply accordingly to the execution of coercive detention. ...” Section 913 “The detention may not exceed six months. After the completion of six months the obligor (Schuldner) is to be released ex officio. “