TIEMANN v. FRANCE and GERMANY
Inadmissible
The applicant, Mr Armin Tiemann, is a German national who was born in 1941 and lives in Kirchdorf (Germany). He was represented before the Court by Mr Christofer Lenz, a lawyer practising in Stuttgart (Germany). On 26 August 1989 the applicant married a French national. The marriage produced a son and a daughter, born in 1990 and 1994 respectively. The applicant and his wife have been living apart since 9 January 1997. On 13 January 1997 proceedings for the award of parental responsibility were instituted in the Sulingen District Court (Amtsgericht). On 14 January 1997 the District Court provisionally granted the applicant the right to determine the children’s place of residence while their parents lived apart. At a hearing in the District Court on 17 February 1997 the children’s mother stated that she had no intention of unlawfully leaving the Federal Republic of Germany with the children. On 18 February 1997 the District Court consequently revoked its decision of 14 January 1997 and restored the joint exercise of parental responsibility. On 7 July 1997, without the applicant’s knowledge and against his wishes, the children’s mother removed them from the family home in order to settle with them at her parents’ home in Montoire-sur-le-Loir (France). On 25 July 1997 the District Court again granted the applicant the right to determine the children’s place of residence and ordered their mother to return them. On 6 August 1997 the District Court ruled that the mother’s removal of the children to a different country had been wrongful within the meaning of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. On 28 March 1998 the applicant had the children abducted in Montoire and brought back to him in Germany. On 27 April 1998 the District Court decided to stay the custody proceedings pending the final decision on an application by the mother for the children’s return. On 13 May 1998 the District Court dismissed an application by the mother for recognition of an order made on 10 November 1997 by a French court (the Blois tribunal de grande instance) and for the return of the children. The mother appealed against that decision. On 9 July 1998 the Celle Court of Appeal (Oberlandesgericht) ordered the return of the children to their mother on the basis of the Hague Convention of 25 October 1980. On 15 July 1998 the applicant lodged a constitutional appeal (Verfassungsbeschwerde) and applied for a stay of execution of the decision of 9 July 1998. On 16 and 31 July 1998 the Federal Constitutional Court (Bundesverfassungsgericht), sitting as a panel of three judges, allowed the application for a stay of execution, thereby provisionally maintaining the applicant’s home as the children’s place of residence. On 29 October 1998 the Federal Constitutional Court quashed the decision of 9 July 1998 and remitted the case to the Celle Court of Appeal. It held that the children should have been represented by a guardian in the appeal proceedings. Furthermore, the Court of Appeal had failed to consider the interests of the children in the light of paragraph 1 (b), and of paragraphs 2 and 3 taken together, of Article 13 of the Hague Convention of 25 October 1980. In the Federal Constitutional Court’s view, ordering successive removals of children when first one and then the other parent applied for their return ran counter to the aims of that Convention if the children’s return placed them in an intolerable situation, unless the court concerned found that there were particular facts justifying their return in spite of the risks entailed by a further removal. On 30 November 1998 the Celle Court of Appeal appointed an expert to assess the state of both parents’ relations with the children, with a view in particular to determining which parent should be awarded custody. The Court of Appeal also appointed a lawyer of the Celle Bar to protect the children’s interests. On 20 January 1999 the expert submitted his report. In it he concluded that both parents were capable of bringing up the children, although he stressed the good relationship between the applicant and his children. As regards the children’s place of residence, the expert considered that the desire expressed by the applicant’s son to stay with his father could be explained by the fact that the applicant had influenced his son and undermined his image of his mother, thereby provoking a conflict of loyalties. It had emerged from exploratory discussions, however, that the son had pleasant memories of his stay in France, had made friends through leisure activities such as judo, and had got on well with his maternal grandparents. His grandfather had apparently once kicked him, but it had transpired that he had only been teasing him and had not caused any harm. The expert observed that there were significant differences between the parents’ respective approaches to bringing up their children. The mother took great care to set limits for the children, while the applicant adopted a more liberal attitude towards them, especially towards his son, who was used to having his every whim satisfied. The expert considered that such an approach could have a negative effect in the long term, as the son might become intolerant of frustration and might experience problems. In the expert’s opinion, the children’s mother was in a better position to ensure their well-being because she did not work, and if she was ever temporarily unable to look after them, they could be looked after, supervised and supported by the members of her family, whom they had known for a long time. Where young children were concerned, an arrangement of that kind was more beneficial than employing someone to look after them. Having regard, on the one hand, to the applicant’s age and approach to child-raising, and, on the other hand, to the fact that the children’s mother, who did not have a job, was able to devote herself entirely and exclusively to them, the expert expressed the view that the children should be returned to their mother. He considered that the nine months they had previously spent with her – a subjectively long period for them – had enabled them to settle into those new surroundings. On 5 February 1999 the Court of Appeal decided to confer on the Diepholz Youth Office (Kreisjugendamt) the right to determine the children’s place of residence pending its ruling on the merits. The Youth Office subsequently recommended that the children should live with their father. On 19 February 1999 the expert followed up his report with comments on objections submitted by the applicant. On 8 and 22 February 1999 the applicant challenged the president of the relevant division of the Celle Court of Appeal, another judge of that court and a judge of the Sulingen District Court for bias. He accused the Court of Appeal judges of failing to take sufficient account of the Federal Constitutional Court’s decision by failing to draw a distinction between the application for transfer of residence under the Hague Convention of 25 October 1980 and the assessment of the children’s interests, the latter task being the responsibility of the judges who had to determine the interim measures to be taken in respect of the children after the separation of their parents. He further argued that the judges in question had contravened the principle of impartiality to his disadvantage by describing his attitude as uncooperative. Their bias was also evident, in his submission, from the questions they had put to the expert, from their refusal to allow his requests for an adjournment and for a say in the choice of expert, from the delay in serving judicial decisions and from the fact that a “wanted” notice had been issued on account of his failure to attend a hearing. On 10 March 1999 the Celle Court of Appeal dismissed the challenges as unfounded. On the same day the applicant applied to the Federal Constitutional Court for a stay of execution of the Celle Court of Appeal’s decision if it ruled in favour of returning the children to their mother in France, pending the Federal Constitutional Court’s decision on the matter. On 11 March 1999 the Federal Constitutional Court, sitting as a panel of three judges, allowed the application. On 12 March 1999, having heard evidence from the parents, the children and the expert, the Celle Court of Appeal ordered the return of the children to their mother at her home in France, the State of their habitual residence for the purposes of the Hague Convention of 25 October 1980. It held that the children’s return to their mother was justified under Article 12 of the Convention of 25 October 1980 as their removal to Germany by their father had been wrongful within the meaning of Article 3 of that Convention. Under that provision, the removal of a child was to be considered wrongful where it was in breach of rights of custody attributed to a person, either jointly or alone, under the law of the State in which the child had been habitually resident immediately before the removal, and where at the time of removal those rights were actually being exercised. The Court of Appeal observed that the two children had been habitually resident in France before being removed to Germany on 28 March 1998. At the time of the removal they had been resident in France for almost nine months. They had been living with their mother in a flat in their grandparents’ house in Montoire. They had adapted well to their new surroundings. As a rule, a stay of six months was sufficient for a place of residence to be considered habitual. The fact that the mother had taken the children to France against their father’s wishes did not preclude her home in Montoire being established as their habitual residence. In general, it was important for children to adapt to living conditions in their new place of residence, and that had occurred in the instant case. The Court of Appeal added that contact between the parents remained desirable, and they would have to abate their mutual distrust. In accordance with Article 14 of the Convention of 25 October 1980, the Court of Appeal took account of the order issued by the Blois tribunal de grande instance on 10 November 1997 in determining whether there had been a wrongful removal, although it did not avail itself of the specific procedures for recognition of that decision, which had ordered the joint exercise of parental responsibility by both parents. The Court of Appeal further held that the conditions laid down in Article 13 § 1 (b) of the Convention of 25 October 1980 were not satisfied in the instant case. By virtue of that provision, the judicial authority of the requested State was not bound to order the return of children if the person opposing that measure established that there was a grave risk that the child’s return would expose him or her to physical or psychological harm or otherwise place him or her in an intolerable situation. On the basis of the report drawn up by the expert it had appointed and the statements made by the expert at the hearing, the Court of Appeal, in accordance with the wishes of the children’s lawyer, concluded that the return of the children to their mother would be in their interests. It considered that there was no need to order a second expert opinion, since the applicant’s criticisms had merely referred to scientific theories without casting doubt on the expert’s findings, which, in its view, were clear, consistent and well-founded. On 31 March 1999 the Federal Constitutional Court, sitting as a panel of three judges, decided not to entertain a constitutional appeal lodged by the applicant against that decision. On 1 April 1999 the mother brought the two children back to France. On 24 July 1997 the children’s mother instituted divorce proceedings in the Blois tribunal de grande instance. On 5 August 1997 the family-affairs judge of that court authorised her to live apart from her husband, together with her children, at her home in France. On 3 September 1997 Blois State Counsel and the applicant applied to the Blois tribunal de grande instance, requesting it to order the immediate return of the children to their home in Germany, pursuant to Article 12 of the Hague Convention of 25 October 1980. The applicant further requested that the Sulingen District Court’s decision of 25 July 1997, provisionally granting the applicant the right to determine where the children should live, be declared enforceable or, at the least, recognised in France. On 25 September 1997 the family-affairs judge of the Blois tribunal de grande instance refused to order the return of the children to Germany. Although he considered the mother’s removal of the children to have been wrongful, he stated that returning the children to Germany would entail a grave risk for them and would in any case place them in an intolerable situation within the meaning of Article 13 § 1 (b) of the Hague Convention. Referring to the case-law of the Court of Cassation, to the effect that a grave risk or an intolerable situation could also result from a further change in the children’s living conditions, the judge concluded that both the separation of the children from their mother and the separation of the brother and sister from each other would cause an immediate risk of psychological harm, and that the sudden return of the children to Germany would place them in an intolerable situation, regard being had to their tender age (one being three years old and the other six and a half). That situation would be aggravated by the crisis which the couple were undergoing and by the total lack of certainty as to the length of the mother’s separation from her children. The applicant appealed against that decision. On 10 November 1997 the family-affairs judge of the Blois tribunal de grande instance issued an order pronouncing the failure of the conciliation process in the divorce proceedings. He decided that parental responsibility should be exercised jointly by the two parents and that the children should be habitually resident with their mother, and granted the father access and staying access, specifying that those rights would not become enforceable until the date on which the order pronouncing the failure of the conciliation process was declared enforceable in Germany. In a judgment of 10 March 1998 the Orléans Court of Appeal upheld the order of 25 September 1997. Noting that a grave risk of harm or of an intolerable situation within the meaning of Article 13 § 1 (b) of the Hague Convention of 25 October 1980 – cited as justification for retaining children who had been removed – might be entailed by a further change in the children’s living conditions, the Court of Appeal confirmed that separating a three-and-a-half-year-old child from her mother and a brother and sister from each other would cause an immediate risk of psychological harm, and that the sudden return of the children to Germany would place them in an intolerable situation in view of their tender age. It further noted that the mother, who did not work, had always looked after the two children’s everyday needs since their birth and that their return to Germany would entail the end of that state of affairs, especially as the mother’s highly precarious financial situation gave reason to fear that she would be unable to make regular use of the access and staying access to which she would be entitled. The Court of Appeal declared inadmissible the applicant’s application to have the German court’s decision of 25 July 1997 (provisionally granting him the right to determine where the two children should live) recognised or declared enforceable. It also held that that application was ill-founded. The applicant appealed on points of law against that judgment within the statutory period of two months. He argued in particular that, on the basis of the Hague Convention of 25 October 1980, the judge should have acted swiftly to end the patently illegal situation resulting from the children’s wrongful removal and could only have refused their immediate return if they faced a grave risk, the assessment of which was quite distinct from the assessment of the children’s best interests with regard to a custody measure. In basing its decision on the children’s interest in staying with their mother, the Court of Appeal had, in the applicant’s submission, acted as a court of first instance and exceeded its jurisdiction, in breach of Articles 12, 13 and 19 of the Hague Convention of 25 October 1980. The applicant further submitted that the immediate return of a wrongfully removed child, even one of tender age, to live with his lawful father in the same conditions as had existed before the wrongful removal could not in any circumstances be regarded as constituting an intolerable situation within the meaning of Article 3 of the Hague Convention. On 28 March 1998 the applicant had the children abducted in Montoire and brought back to him in Germany. The Blois investigating judge subsequently began a criminal investigation in respect of the applicant for abduction of a minor by a gang and criminal conspiracy. On 22 June 1999 the Court of Cassation dismissed the applicant’s appeal on points of law. On 17 June 1999 the children’s mother applied to have the father’s access and staying access revoked as a result of the children’s abduction. In an order of 30 June 1999 the Blois tribunal de grande instance suspended the applicant’s access and staying access in respect of his daughter during the summer of 1999 and granted him access and staying access in respect of his son. It appears from the file that, notwithstanding the order of 30 June 1999, the two children spent three weeks of their summer holidays at their father’s home. On 3 October 1999 the applicant learned from his son that the children’s mother was planning to move to Paris, where she had found a job. On an unspecified date the applicant applied to the Blois tribunal de grande instance to have the children’s place of residence transferred to his home in Germany. He argued that their mother did not have sufficient time available to ensure the children’s day-to-day upbringing and to give them the care and attention they needed. On 13 January 2000 the Blois tribunal de grande instance dismissed that application. It pointed out that the children’s return to France had been ordered by the Celle Court of Appeal in the light of the various findings set out in the expert’s psychological report. It observed that the mother’s physical availability, which had been taken into account at the time, had not been the sole factor determining where the children should live. After the applicant had abducted the children, their mother had been unable to see them for a year as a result of his unreasonable attitude. In that context, the children had suffered severe psychological trauma. Since they had returned to their mother, she had found a job, a fact for which she could not be reproached. Although she was now in employment, she had managed, like any other working woman, to organise her children’s everyday lives satisfactorily; the children appeared to be thriving in her company. They attended schools not far from their home and their mother worked in the same area. There was nothing in the file to indicate that the mother’s new circumstances were detrimental to the children or were responsible for the son’s difficulties at school or the daughter’s psychological problems. Those problems had existed before and were the consequence not of the mother’s personal situation but of the conflict between the parents, which was still extremely intense. Noting, however, that since the summer holidays the family situation had calmed down considerably, the court granted the applicant access and staying access in respect of both children, subject to the conditions laid down in the order of 10 November 1997 pronouncing the failure of the conciliation process. It also set the amount of maintenance and the applicant’s contribution to his children’s upkeep and education. 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 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 19 “A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.”