MATTENKLOTT  v. GERMANY
Inadmissible
Peer Lorenzen
The applicant, Mrs Susanne Mattenklott, is a German national who was born in 1968 and lives in Friedeburg. She was represented before the Court by Mrs A. Wiese, a lawyer practising in München. , may be summarised as follows. In 2003, the applicant lived with her German husband, a pilot in the German army, in New Mexico (United States of America, hereafter United States). After a period of tension in their marriage, the husband returned to Germany in December 2003. While the applicant stayed in the United States, she had an affair with G., a US citizen with whom she temporarily shared a flat. The affair ended in February 2004. In April 2004, the applicant gave birth to her daughter N. Subsequently, G. was registered in N.’s birth certificate as her legitimate father. The applicant later disputed G.’s parenthood, alleging that she was coerced to agree to that registration. This allegation led G. to subject himself to a DNA-test. The test confirmed his fatherhood, but was held in secret. According to the applicant, it is however possible that it was not G.’s DNA material which had been submitted to the test. In September 2004, the applicant returned to Germany with N. because the applicant’s father was seriously ill. They now live together with her husband with whom the applicant reconciled. In the applicant’s submission, her husband could possibly be the father of N. instead of G. The German authorities issued a German birth certificate for N. in which the applicant’s husband was registered as the legitimate father. Before the applicant left with N. for Germany in September 2004, G. had instituted civil proceedings before the San Juan District Court in order to obtain a declaratory decision that he was N.’s father and in order to obtain the right to custody and access to N. The applicant participated in the San Juan District Court’s hearing on 22 November 2004 by means of a telephone conference. However, the applicant did not attend a court-ordered DNA-test in Germany in January 2005. She announced that neither she nor her husband would participate in such a test. On 28 January 2005, the San Juan District Court issued an interim order, confirming G.’s parenthood on account of the US birth register and a written acknowledgement signed by the applicant that G. was N.’s father. Until further orders were made, the San Juan District Court also provisionally granted G. the right to custody (primäres Sorgerecht) for N. and excluded the applicant’s visiting rights. In January 2005, G. also instituted proceedings for interim measures in Germany in order to achieve N.’s return to the United States. The Celle District Court (Familiengericht) asked G. for a certificate of wrongness (Widerrechtlichkeitsbescheinigung) pursuant to Article 15 of the Hague Convention on Civil Aspects of International Child Abduction (hereafter: the Hague Convention), which was issued by the San Juan District Court on 22 April 2005. In that certificate, the San Juan District Court stated that: “(...) Petitioner, [G.], had rights of custody under the law of New Mexico, including rights to make all decisions concerning the Child’s care, custody and control jointly and equally with the respondent. (...) Petitioner was exercising such rights at the time Respondent removed Child to Germany. Accordingly, it is the determination of this Court that respondent violated petitioner’s custody rights by taking the Child to Germany, by keeping her there and by refusing to allow petitioner to see her, and that Respondent’s removal of the Child was ‘wrongful’ under Article 3 of the Hague Convention. (...)” On 3 June 2005, the Celle District Court refused G.’s motion and stated that it could not follow the San Juan District Court’s opinion as expressed in the above certificate. It found that, in accordance with Article 12 read in conjunction with Article 3 of the Hague Convention, the immediate return of a child only had to be ordered when the right to custody of a parent had been violated through the removal of the child. The Celle District Court did not find it decisive whether or not the San Juan District Court’s decision of 22 April 2005, granting G. the provisional right to custody, applied retroactively to the day of N.’s birth. Nor found the court it decisive whether or not the San Juan District Court’s declaratory decision of January 2005 (stating that G. was the biological father) applied retroactively to the day of N.’s birth. Even assuming that G. had the right to custody on that day, he nevertheless had not exercised it. The Celle District Court came to this conclusion because G. had neither lived any longer with the applicant in a shared flat, nor had he been her partner upon N.’s birth. Moreover, he had seen N. only on rare occasions, he had not paid alimony and he had constantly been away because of his profession as a pilot. The Celle District Court considered a testimony of a third person which G. had submitted, according to which he had seen N. only twice in five months. Moreover, the Celle District Court stated that it had been the applicant who had cared for N. The applicant had also paid alimony and otherwise depended on welfare benefits. On 27 February 2006, on appeal by G., the Celle Court of Appeal ordered the applicant to return N. to New Mexico, or, should she fail to do so, to hand her over in order to ensure her immediate return. The Celle Court of Appeal also ruled that the execution of the order should not take place until G. had deposited an irrevocable order to pay 600 $ of alimony on a monthly basis to the applicant for the period of four months. The alimony for the first two months should be deposited and handed out to the applicant upon her arrival in the United States. Moreover, the Celle Court of Appeal ordered G. to rent an apartment in the United States for the applicant and N. for the period of two months. In the event that the applicant should refuse to comply with the order to return N., the Court of Appeal authorised the court’s bailiff to return the child to the United States. The bailiff was authorised to use force if necessary in order to overcome any resistance by the applicant, to search her apartment and to ensure the child’s removal. The Celle Court of Appeal considered that the applicant, when returning to Germany, had violated G.’s co-existing right to custody. In accordance with the Hague Convention, N. had to be returned to the place where she was before she had unlawfully been removed. The Celle Court of Appeal had no doubt whatsoever that G. was the legitimate father of N., because otherwise the applicant and her husband would have attended the DNA-test in Germany in order to rebut G.’s submissions in the proceedings before the San Juan District Court. In order to determine whether or not the applicant had wrongfully removed N. in 2004, the Celle Court of Appeal found that the legal situation in New Mexico had been decisive, irrespective of the fact that under German law the applicant would have had sole custody. As the San Juan District Court had issued the certificate of wrongness on 22 April 2005, the removal had to be regarded as having violated G.’s right to custody. Contrary to the Celle District Court’s ruling, the actual lack of exercising the right to custody was not an obstacle as the Celle Court of Appeal considered that there was a legal presumption under the Hague Convention that the right of custody was exercised. The applicant had failed to rebut that presumption. The Celle Court of Appeal stated that it was sufficient for the purposes of the Hague Convention that G. occasionally had had access to N. in the past in order to exercise his right to custody. The court found that G. did have access even though the particular extent of the access was disputed between the parties. The Celle Court of Appeal decided not to apply Article 13 § 1 (b) of the Hague Convention, according to which the courts may refrain from the order of removal if there exists a serious danger that the child will suffer from physical and psychological damages. It found that the provision had to be narrowly interpreted, given that N.’s removal had been unlawful. The danger that N. suffered physical and psychological damages could in any case be averted if the applicant returned to the United States together with N. Therefore, the Celle Court of Appeal had ordered that G. had to pay alimony for four months and the rent for an apartment for the applicant and N. for two months while the custody proceedings were pending. As far as the applicant feared that she would be arrested for child abduction upon her arrival in the United States, such fears were as such not sufficient for Article 13 § 1 (b) of the Hague Convention to apply, unless N. would be left on her own while the applicant was in prison. Although the Celle Court of Appeal had initially pointed to that danger in view of G.’s attempt to institute criminal proceedings against the applicant, such danger no longer existed. The Celle Court of Appeal pointed out that several US governmental bodies had given assurances that the applicant would not be subjected to criminal proceedings. Moreover, the Celle Court of Appeal noted that G. had meanwhile withdrawn his motion to institute criminal proceedings against the applicant. Lastly, the Celle Court of Appeal did not see any indications that the San Juan District Court, when deciding upon the right to custody in the main proceedings, would fail to take into account N.’s interests. On 10 August 2006, the Federal Constitutional Court refused to admit the applicant’s constitutional complaint, together with N.’s constitutional complaint which had been lodged by the curator ad litem. On 22 September 2006, the Celle Court of Appeal dismissed a motion by the applicant’s husband and ordered that N. should be returned to the United States not later than 31 October 2006. “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.” “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.” “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.” “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.” “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.” “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.” “The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. ...” “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.”