DROSSER-BRAND v. GERMANY
Inadmissible
Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva
The applicant, Ms Martina Drößer-Brand, is a German national who was born in 1963. Her domicile is unknown. The applicant and her husband (K.B.) have a common son (T.), born in 1999. After the separation of his parents in 2004, T. lived with the applicant, who denied K.B. the possibility to visit his son. On 3 December 2004 K.B. requested the Munich District Court to transfer the right to decide where his child should live (Aufenthaltbestimmungsrecht) to him. On 25 February 2005 the District Court heard T. in the framework of proceedings which K.B. had initiated to gain access to his child. On 23 May 2005 the Munich District Court transferred the right to decide where T. should live to the Youth Office as it could not rule out the possibility that the applicant would be dangerous to the child's well-being and that she would leave Germany with her son. The court also decided to commission an expert report. On 24 June 2005, after having heard the parties, the Munich District Court granted K.B. the right to decide where the child should live. The applicant appealed that decision. On 28 June 2005 the District Court ordered her by way of an interim injunction to hand the child over to his father and authorised the court's bailiff to enforce that decision, if necessary by force. Relying on the submissions of the Youth Office, the guardian ad litem and the family's nonmedical practitioner, who contended that the mother had indoctrinated the child and kindled fears which had aggravated the situation, the court found that the child's well-being would be best served if the right in question was transferred to the father. Moreover, the hearing of the child held on 25 February 2005, as well as the applicant's prior conduct, proved that she had attempted to influence the child against his father in every possible way and that it was very likely that the applicant would go into hiding with T. On 8 July 2005 an arrest warrant was issued against the applicant on suspicion of child abduction. On 19 August 2005 the District Court upheld its interim injunction after having heard the father, the applicant's representative, the guardian ad litem and a representative of the Youth Office, inter alia because in the meantime the applicant had gone into hiding with T. It was therefore impossible for the court to find out her address and to suggest to her in person that it should annul the interim injunction if she agreed to undergo a psychological examination and granted her husband access to T. The applicant's counsel, however, rejected that offer on behalf of the applicant. On 29 September 2005, after having heard T's father, the guardian ad litem and the Youth Office, the Munich Court of Appeal confirmed the District Court's decision of 24 June 2005, relying on section 1671 of the Civil Code (see “Relevant domestic law” below). The fact that the applicant forced her then 5-year-old son to live in hiding would make him totally dependant on his mother, uproot him from the environment and persons he had been attached to and have deleterious effects on his physical and psychological development and on his material well-being. Moreover, it was impossible for the court to hear the applicant and her son as she was not ready to appear at the hearing, her whereabouts were unknown to the court and all attempts to contact the applicant had failed. Even if an arrest warrant had been issued against the applicant, the well-being of her child required her to leave it to the courts to settle the dispute instead of taking the matter into her own hands. On 17 October 2005 the Munich Court of Appeal declared the applicant's complaint against the decisions of 28 June 2005 and 19 August 2005 disposed of, given that it had already taken a decision in the main proceedings on 29 September 2005. By interim injunction of 16 November 2005 the Federal Constitutional Court suspended the enforcement of the Court of Appeal's decisions of 29 September 2005 and 17 October 2005 until it had decided on the applicant's constitutional complaint. On 22 December 2005 the Federal Constitutional Court refused to admit the applicant's constitutional complaint, arguing that it could be deduced from the court files of the entire proceedings that the applicant had done her utmost to thwart the proper conduct of the proceedings. As she had gone into hiding and all attempts to contact her had failed, it was impossible for the courts to clarify the facts of the case, to hear the applicant and T. and to commission an expert report. Moreover, the applicant could not plausibly argue that the arrest warrant had prevented her from attending the hearing as she had never tried to challenge the warrant, even though the courts had repeatedly informed her of that possibility through her representative. Finally, the courts understandably argued that the applicant's going into hiding with her son would result in the boy's social isolation and thus considerably impair his welfare. Considering that the courts tried to reach a compromise with the applicant, and given the latter's conduct, it was unobjectionable that the courts found that T.'s welfare would be best served if the right to decide where the boy should live was transferred to his father. Section 1671 of the Civil Code provides that if parents sharing joint parental authority separate permanently, either parent may request to be awarded full or partial parental authority. The family courts will grant such a request inter alia if it appears that the lifting of joint parental authority and its transfer to the parent requesting it is best for the child's welfare. Pursuant to Section 1631 § 1 of the Civil Code, parental authority includes the right to determine where the child should live.