FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 41092/06 
by Susanne MATTENKLOTT  
against Germany

The European Court of Human Rights (Fifth Section), sitting on  
11 December 2006 as a Chamber composed of:

Mr P. Lorenzen, President, 
 Mr K. Jungwiert, 
 Mr V. Butkevych, 
 Mrs M. Tsatsa-Nikolovska, 
 Mr J. Borrego Borrego, 
 Mrs R. Jaeger, 
 Mr M. Villiger, judges, 
and Mrs. C. Westerdiek, Section Registrar,

Having regard to the above application lodged on 6 October 2006,

Having deliberated, decides as follows:

THE FACTS

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.

A.  The circumstances of the case

The facts of the case, as submitted by the applicants, 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.

I.  Proceedings before the San Juan District Court in New Mexico

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.

II.  Proceedings before the German courts

1.  Proceedings before the Celle District Court

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.

2.  Proceedings before the Celle Court of Appeal

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.

3.  Further proceedings

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.

B.  Relevant provisions of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction

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 2

“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.”

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 5

“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.”

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 15

“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. ...”

Article 20

“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.”

COMPLAINT

The applicant complained under Article 8 of the Convention about the Celle Court of Appeal’s order of 27 February 2006 to return N. to  
New Mexico, or, should the applicant fail to do so, to hand N. over in order to ensure her immediate return.

THE LAW

The applicant complained that the Celle Court of Appeal’s order of  
27 February 2006 to return N. to New Mexico violated her right to respect for her family life. Article 8, as far as relevant, provides:

“1. Everyone has the right to respect for his ... family life ...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the protection of the rights and freedoms of others.”

The applicant submitted that complying with the order would irrevocably deny her the possibility to keep the child and obtain the right to custody.  
As she would now be considered as a “kidnapper” by the US courts, it was very likely that she would not obtain the right to custody in the main proceedings. She also alleges that the Hague Convention had been erroneously applied by the Celle Court of Appeal. The order was unlawful as G. never had the right to custody. Consequently, the Hague Convention was not applicable and there was no “status quo” to be reinstituted through N.’s return to the United States. In any event, the applicant had never intended to unlawfully remove N. from the United States, but instead wrongfully assumed a legal situation which exists in Germany. Moreover, the applicant alleges that the Celle Court of Appeal had not sufficiently taken into account N.’s interests. The removal of a two and a half year-old girl from her family was in any event disproportionate, all the more because N. has been living with the applicant and her husband (who could possibly be N.’s father) for two years as a family. The return order was also disproportionate because G. had been unwilling to enter into a friendly settlement in which he would have obtained the right of access to N.  
The applicant fears that she will be arrested upon her arrival in the United States for child abduction. She considers respective assurances by the US authorities as too vague as they allegedly only contained general legal information, but no specific reference to her case. As proceedings could be initiated in the public interest, it was irrelevant whether or not G. had withdrawn his attempt to institute criminal proceedings against her.  
The applicant fears that she will not be able to support herself and N. while living in the United States as she no longer has a work permit.

The Court reiterates that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life and that domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 (see, among other authorities: McMichael v. the United Kingdom, judgment of 24 February 1995, Series A no. 307-B, p. 55, § 86; Johansen v. Norway, judgment of 7 August 1996, Reports of Judgments and Decisions 1996-III, p. 1001, § 52; and Bronda v. Italy, judgment of 9 June 1998, Reports 1998-IV, § 51). The Court finds that the decisions regarding N.’s return to the United States would not necessarily involve N.’s separation from the applicant in the instance that the applicant would return together with N. to the United States. In that event, however, the applicant would have to leave Germany and her husband at least temporarily. The order to return N. thus amounts to an interference with the applicant’s rights to respect for their family life within the meaning of Article 8 § 1 of the Convention.

Such interference constitutes a violation of this Article unless it is  
“in accordance with the law”, pursues an aim or aims that are legitimate under paragraph 2 of Article 8 and can be regarded as “necessary in a democratic society” (see Bronda cited above, § 52).

Concerning the lawfulness of the interference, the Court recalls that the impugned measure was based on the provisions of the Hague Convention. That Convention, which was approved in the form of a federal statute, is applicable on the German domestic law level. Regarding the aim of the Hague Convention, the Court notes that in its preamble, the signatory States state their firm conviction “that the interests of children are of paramount importance in matters relating to their custody”. They also express their desire to “protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access”. The Celle Court of Appeal, by applying the provisions of the Hague Convention, thus acted in what it considered to be the child’s best interest. The interference pursued a legitimate aim under paragraph 2 of Article 8, namely, the protection of the rights and freedoms of others (see, mutatis mutandis, Paradis v. Germany (dec.), no. 4783/03) which is generally “necessary in a democratic society” and proportionate.

The Court reiterates that a fair balance must be struck between the interests of the child and those of the parents (see, for example, Olsson v. Sweden (no. 2), judgment of 27 November 1992, Series A no. 250,  
pp. 35-36, § 90, and E.P. v. Italy, no. 31127/96, 16 November 1999, § 62) and that in this regard particular importance must be attached to the best interests of the child, which, depending on their nature and seriousness, may override those of a parent. In particular, no measures may be taken as would harm the child’s health and development (see Johansen cited above, p. 1008, § 78, see also Ignaccolo-Zenide, cited above, § 94; Nuutinen v. Finland,  
no. 32842/96, § 128, ECHR 2000-II).

The Court also recalls that it must take the relevant rules of international law into account, particularly those relating to the international protection of human rights (see Iglesias Gil v. Spain, no. 56673/00, § 51, 29 April 2003; mutatis mutandis, Streletz, Kessler and Krenz v. Germany [GC],  
nos. 34044/96, 35532/97 and 44801/98, § 90, ECHR 2001-II ; Al-Adsani v. the United Kingdom [GC], no. 35763/97, §55, ECHR 2001-XI).  
In the matter of reuniting a parent with his or her children, Article 8 must be interpreted in the light of the Hague Convention, all the more so if the respondent State is a party to that instrument (see Iglesias Gil, cited above,  
§ 51; Ignaccolo-Zenide v. Romania, no. 31679/96, § 95, ECHR 2000-I).

In the instant case, the Court notes that the German courts were divided over the issue of whether or not N.’s removal from US territory by the applicant in September 2004 had been wrongful pursuant to the Hague Convention.

At first instance, the Celle District Court found that, despite of the certificate of wrongness issued by the San Juan District Court in April 2005, G.’s right to custody had not been violated because, even assuming that he had the right to custody, he nevertheless had not exercised it.

On appeal, the Celle Court of Appeal however ordered N.’s return because it considered that the applicant, when returning to Germany, had violated G.’s right to custody as the San Juan District Court had issued the certificate of wrongness on 22 April 2005. This removal had to be regarded as having violated G.’s right to custody. 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. as it considered that there was a legal presumption under the Hague Convention that the right of custody was exercised, and the applicant had failed to rebut that presumption. The Celle Court of Appeal held that there was no serious danger that N. would suffer from physical and psychological damages, as that danger could be averted if the applicant returned to the United States together with N. The Celle Court of Appeal had ordered G. 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 considered as unfounded regarding assurances given by the US authorities and the withdrawal of G.’s request for her prosecution.

The Court notes that the Celle Court of Appeal was empowered to rely on the certificate of wrongness issued by the San Juan District Court, as the Hague Convention allows courts to rely on foreign decisions (see, mutatis mutandis, Eskinazi and Chellouche v. Turkey, (dec.), no. 14600/05, and Paradis cited above). As regards the applicant’s complaints that the return might result in a separation of mother and child, the Court agrees that there is a certain risk of separation upon N.’s return to the United States  
(see, mutatis mutandis, Paradis cited above). Nevertheless, bearing in mind the aim and object of the Hague Convention, which is to protect children from wrongful removal from the State of their habitual residence, the Court finds that to achieve the aim and the object of the Convention naturally causes hardships for both the parent and the child. However, the Celle Court of Appeal has taken possible hardships into account when ordering that G. had to pay alimony and rent an apartment for the applicant and N.  
The Court also considers that the applicant has legal remedies in  
New Mexico at her disposal to ensure the defence of her interests and of those of her child. It finds that the decision to return N. to the United States under the Hague Convention does not anticipate or prejudice the decision as to who will obtain the sole custody. The argument that there would be a certain danger that the US courts would find against the applicant in the pending custody proceedings cannot be used to undermine the basic premise of the Hague Convention.

The Celle Court of Appeal was aware of the fact and took into account that the applicant reconciled and lived again with her husband, and that under German law she would have obtained sole custody for N. In this regard, the Court however observes that the legal situation in Germany was not decisive for the assessment whether or not N. had been unlawfully removed from US territory. Moreover, the Court notes that the Hague Convention does not distinguish between negligent or intentional removal of a child.

Concerning the Celle Court of Appeal’s decision to vest the competent court bailiff with the right to use force against the children in order to ensure the implementation of its decision of 27 February 2006, the Court notes that although coercive measures against children are not desirable in such sensitive situations, the use of sanctions must not be ruled out in the event of unlawful behaviour by the parent with whom the children live  
(see Ignaccolo-Zenide cited above, § 106).

Having regard to all the circumstances, the Court cannot find that the Celle Court of Appeal’s assessment is arbitrary or that it did not adequately take the child’s interest into account. The reasons given by the Celle Court of Appeal were not only relevant but also sufficient for the purposes of Article 8 § 2. In particular, having regard to the domestic courts’ margin of appreciation in the matter, the interference complained of was not disproportionate to the legitimate aim pursued. The applicant, who was represented by her lawyer throughout the proceedings before the German courts, has been sufficiently involved in the decision-making process.  
In sum, the Court of Appeal’s order to return the applicant’s daughter to the United States, if necessary by force, does not disclose any violation of Article 8 of the Convention.

It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court by a majority

Declares the application inadmissible.

Claudia Westerdiek Peer Lorenzen  
 Registrar President

MATTENKLOTT v. GERMANY DECISION


MATTENKLOTT v. GERMANY DECISION