The area of international family law is subject to the following regulations in Germany:

• Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction – hereinafter referred to as: Brussels II b Regulation
• The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (Federal Law Gazette 1990 part II p. 207) – hereinafter referred to as: Hague Child Abduction Convention
  The Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (Federal Law Gazette 2009 II p. 602) – hereinafter referred to as: Hague Child Protection Convention
• The Luxembourg European Convention of 20 May 1980 on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children (Federal Law Gazette 1990 II p. 220), hereinafter referred to as: European Custody Convention.

The following may apply to cases under the previous legal regime:

• Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (Official Journal of the European Union No. L 338 p. 1) – hereinafter referred to as Brussels II a Regulation

The Brussels II b Regulation, in force since 1 August 2022, is a recast of the Brussels II a Regulation. It applies to legal proceedings instituted, authentic instruments formally drawn up or registered and agreements registered on or after 1 August 2022 (Article 100 paragraph 1 Brussels II b Regulation). Requests made on or after this date via the Central Authorities (exchange of information, requests for placement) are also subject to the new legal regime. The Brussels II a Regulation shall continue to apply to decisions given in legal proceedings which were instituted before 1 August 2022, and to authentic instruments formally drawn up or registered before 1 August 2022, and to agreements which have become enforceable in the Member State where they were concluded before 1 August 2022 and which fall within the scope of that Regulation (Article 100 paragraph 2 Brussels II b Regulation).

The Brussels II b Regulation takes priority in relations with other EU Member States (with the exception of Denmark) over the provisions of the Hague Child Protection Convention to the extent that these areas are covered by the Regulation (Article 97). The Convention applies mutatis mutandis in particular to issues of applicable law (Article 15f) as the Regulation does not contain any provisions governing the matter. In relation to the Hague Child Abduction Convention, Chapters 3 and 6 (and in part Chapter 4) complement the provisions contained in the Convention.

Pursuant to Section 3 subsection 1 of the Act on Executing and Implementing Certain Legal Instruments in the Field of International Family Law (International Family Law Procedure Act – IFLPA (Internationales Familienrechtsverfahrensgesetz – IntFamRVG), the Federal Office of Justice in Bonn assumes the tasks of Central Authority for Germany under the international legislation mentioned above.

In cases falling within the scope of the Hague Child Abduction Convention or of the European Custody Convention, the Federal Office of Justice is entitled to institute proceedings before the competent German courts if necessary. This includes proceedings for obtaining the return of a child to another country, who has been abducted and taken to Germany, proceedings for the recognition and, where necessary, enforcement of a custody or contact order issued abroad or other measures for the protection of children, and proceedings with a view to obtaining an initial or new order concerning access between a child living in Germany and a parent or other person living abroad. Within the framework of these Conventions, the Central Authority is deemed to be authorized, by force of law, for the purpose of returning the child, to take measures in and out of court on behalf of the applicant itself or by way of delegated authority through a representative. Proceedings for access under the Hague Child Abduction Convention or the European Custody Convnention can be instituted by the German Central Authority on behalf of an applicant living abroad if the latter authorizes it to do so. The Federal Office of Justice can also act on its own behalf in order to ensure compliance with the Conventions, as set out in Section 6 subsection 2 IFLPA (IntFamRVG).

The Federal Office of Justice initiates, with the help of the competent authorities, all the measures necessary to exercise its duties. It communicates directly with all the competent authorities in Germany and abroad, as set out in Section 6 subsection 1 IFLPA.

If a parent or another person leaves Germany with a child who has so far been living there country and thereby infringes upon a right of custody which applies in Germany, which includes a right to decide on the child’s place of residence, the left-behind parent or other guardian of the child can assert these rights in different ways. In most cases, the nationalities of the child, the parents and the other family members do not play a decisive role.

a. Support options
The aim of the Hague Child Abduction Convention is to protect children from the detrimental effects of their wrongful removal to another Contracting State or their retention there. There are more than 100 Contracting States to the Convention. The current status of Contracting States to the Hague Child Abduction Convention, in terms of their relations with Germany, can be found in the List of States on the German-language version of the website of the Federal Office of Justice and in general on the website of the Hague Conference on Private International Law.

If a child is abducted from Germany to another Contracting State, the parent or other guardian who has been left behind in Germany can approach the Federal Office of Justice and request support with bringing about the return of the child. Application forms are available from the Central Authority in several languages. They can be downloaded under "Application forms" or requested by telephone, email or in writing.

The left-behind parent is not obliged to make use of the assistance the Federal Office of Justice offers. He or she is free to apply directly to the Central Authority of the other country or – where deemed necessary, with the assistance of a lawyer – to the courts or administrative authorities of the other State. However, in this case it should be kept in mind that the question as to whether an individual can also act in legal proceedings in the relevant State, or whether he or she is required to be represented by a local lawyer, is decided by the law of that State.

b. Objective

The aim is to prevent the abducting parent removing and taking the child abroad without authorisation and in violation of the rights of custody of another person or body, and from potentially obtaining a judicial or administrative decision on the rights of custody in that jurisdiction. The Convention aims, on the one hand, to enable the reversal of a wrongful removal or retention of the child in breach of someone else’s rights of custody, and on the other, to fulfil a preventative function by taking away the appeal of such abductions. Accordingly, the Convention does not require a decision relating to rights of custody as a prerequisite for the return. The Convention provides explicitly that decisions issued under the Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue (Article 19 Hague Child Abduction Convention). The sole aim is to ensure that children are returned as quickly as possible to the country in which they previously had their habitual residence. It is there that the courts with international competence can then come to decisions on other matters. This does not necessarily entail the handover of the child to the other parent. The aim of the Hague Convention is also achieved if the abducting parent returns to Germany together with the child. It is then up to the German courts to decide who the child will live with in the long term.

c) Requirements
The Hague Child Abduction Convention obliges the Contracting States to bring about the return of the child as a rule and as quickly as possible. An application for the return to Germany of a child who has been abducted and taken to another Contracting State is usually deemed to have an adequate chance of success if the following preconditions are met

• The child is under 16 years of age (Article 4 paragraph 2 Hague Child Abduction Convention).
• The child’s place of habitual residence was in Germany immediately prior to the abduction (Article 3 paragraph 1 (a) Hague Child Abduction Convention).
• At the time of removal or retention, the applicant parent had at least joint custody rights and had actually been exercising them until that point in time (Article 3 paragraph 1 (b) Hague Child Abduction Convention), for example by having regular contact – although not necessarily in person.
• The Convention was in force between Germany and the relevant State at the moment of wrongful removal or retention (Article 35 paragraph 1 Hague Child Abduction Convention).

The application should be made as quickly as possible – but at the latest so that its submission to the competent court in the country to which the child has been taken occurs before one year has elapsed since the abduction or retention, Article 12 paragraph 1 Hague Child Abduction Convention. If the application is received later than this by the competent court in the country to which the child has been taken, it is sufficient for the person who has the child in his or her care to demonstrate that the child has settled into his or her new environment in order to obstruct the return, Article 12 paragraph 2 Hague Child Abduction Convention.

d) Proceedings
.If the application meets the minimum requirements set out above, the Federal Office of Justice will transmit the application to the Central Authority of the Contracting State to which the child was abducted, if need be after having requested missing documents and translations. With regard to translation costs, please see below under point VIII. 1

The Central Authority in the relevant other Contracting State shall, among other things

• endeavour to discover the whereabouts of the child without delay, Article 7 paragraph 2 (a) Hague Child Abduction Convention,
• endeavour to secure the voluntary return of the child or an amicable resolution of the issues, Article 7 paragraph 2 (c) Hague Child Abduction Convention,
• initiate or facilitate judicial or administrative proceedings with a view to obtaining the return of the child, Article 7 paragraph 2 (f) Hague Child Abduction Convention.

The course of the return proceedings depends on the law of the requested State. The law of said State also determines whether the Central Authority concerned will represent the applicant in court proceedings, whether another body does this, and whether a lawyer needs to be instructed. The aim is to ensure that the case is dealt with swiftly, Article 11 paragraph 1 Hague Child Abduction Convention.

According to Articles 2 and 11 Hague Child Abduction Convention, the courts of the Contracting States which deal with the return proceedings are obliged to use the most expeditious procedures available. The Convention presumes that court proceedings will take no longer than six weeks per instance, Article 11 paragraph 2 Hague Child Abduction Convention (and also as per Article 24 Brussels II b Regulation for cases in the European Union)..

e) Grounds for refusal
The courts or administrative authorities of the requested State may, in exceptional circumstances, refuse the return of the child if, for example

• the left-behind parent had neither sole nor joint rights of custody at the time of wrongful removal or retention, Article 3 paragraph 1 (a) Hague Child Abduction Convention
• the left-behind parent was not actually exercising his or her rights of custody at the time of wrongful removal or retention, Article 3 paragraph 1 (b) Hague Child Abduction Convention
• more than one year elapsed before the application reached the court and the child is settled in his or her new environment, Article 12 paragraph 2 Hague Child Abduction Convention
• the left-behind parent has consented to or subsequently acquiesced in the removal or retention, Article 13 paragraph 13 (a) Hague Child Abduction Convention
• the child has attained an age and degree of maturity at which it is appropriate to take account of his or her views, and seriously objects to being returned per Article 13 paragraph 2 Hague Child Abduction Convention
• there is a grave risk that the return will expose the child to physical or psychological harm or otherwise place him or her in an intolerable situation, Article 13 paragraph 1 (b) Hague Child Abduction Convention) Between EU Member States (with the exception of Denmark), however, the return of the child cannot be refused if it is established that adequate arrangements have been made to secure the protection of the child after his or her return, Article 27 paragraph 3 Brussels II b Regulation.
  

a. Scope
As of 1 August 2022 the Brussels II b Regulation, recast of the Brussels II a Regulation, which had been in force since 1 March 2005, applies to relations between Member States of the European Union (with the exception of Denmark) The Regulation puts in place uniform provisions within the European Union which apply to cross-border matrimonial matters and matters of rights of custody regarding the question of which State’s courts are to have jurisdiction (international competence). Moreover, it is intended to make it possible for relevant decisions to be recognised and – where necessary – enforced – as smoothly as possible in other Member States of the European Union as well. As far as decisions granting custody and rights of access or other protective measures regarding children in cross-border cases are concerned, the Central Authorities of the relevant Member States act in an advisory and supportive capacity. In these cases, the Central Authorities gather – where necessary – information about the situation of the child and his or her environment, as well as about any proceedings that may be pending, and exchange them amongst themselves

b) Relationship to Hague Child Abduction Convention
In the case of child abductions, the Hague Child Abduction Convention continues to apply to the return of a child in relations between Member States of the European Union; however, this is complemented by Chapters III and IV of the Brussels II b Regulation (Articles 1 paragraphs 3, 22 and 96 Brussels II b Regulation).

c) Child protection measures
The Regulation reinforces the principle contained in the Hague Child Abduction Convention that the court shall order the immediate return of the child. In accordance with the Hague Child Abduction Convention, a return of the child can be declined if 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. In accordance with the Brussels II b Regulation, a court may not refuse the return of a child if it is demonstrated that adequate arrangements have been made to secure the protection of the child after his or her return to the state of his or her habitual residence (Article 27 paragraph 3 Brussels II b Regulation). This provision is also intended to encourage courts before which Hague Child Abduction Convention return proceedings are pending to enter, if necessary, into contact with courts in the other State – either directly or with the assistance of the Central Authorities, the parties to the proceedings (normally the parents) or international networks of judges – with a view to securing the protection of the child following return, should this be necessary.

In proceedings initiated on or after 1 August 2022, the new possibility exists for the court ordering the return to take provisional, including protective, measures as per Article 15 Brussels II b Regulation to protect a child from a grave risk referred to in Article 13 paragraph 1 b) Hague Child Abduction Convention after his or her return (Article 27 paragraph 5 Brussels II b Regulation). This, however, is only possible provided that the examining and taking of such measures would not unduly delay the return proceedings.

A further change with EU-wide effect is that Article 27 paragraph 6 Brussels II b Regulation provides that a decision ordering the return of the child may be declared provisionally enforceable, notwithstanding any appeal, where this is required in the child’s best interests.

d) Access rights during return proceedings
Article 27 paragraph 2 Brussels II b Regulation provides for new EU-wide rules on considering contact during the proceedings. Under this provision, the court is able, at any stage of the proceedings, to examine whether contact between the child and the person seeking the return of the child should be ensured, taking into account the best interests of the child and issue an order in the form of a provisional protective measure in accordance with Article 15 of the Brussels II b Regulation.

d) Hearing
Furthermore, the Regulation reinforces the right of the child to be heard during the proceedings. The courts are obliged to provide the child who is capable of forming his or her own views with a genuine and effective opportunity to express his or her own views, either directly, or through a representative or an appropriate body and give due weight to the views of the child in accordance with his or her age and maturity (Article 26 in conjunction with Article 21 Brussels II b Regulation). The Regulation leaves it to the national law of the Member States whether this hearing is to be undertaken directly by the court or by other persons, for example social workers, who are then heard by the court.

Furthermore, the court may not refuse to return the child unless the person seeking the return of the child has been given an opportunity to be heard per Article 27 paragraph 1 Brussels II b Regulation.

e) Cross-border recognition and enforcement
Return proceedings under the Hague Child Abduction Convention are not the only way to bring about the return of an abducted child. If there is an existing decision on custody rights from the State of habitual residence to date awarding the left-behind parent a court order for the handover of the child, the return of the child can also take place via cross-border enforcement of this decision as per the Brussels II b Regulation.

The Regulation governs, in general, the obligation to recognise and enforce custody and access decisions issued in one Member State of the EU in another (Articles 30 and 34 Brussels II b Regulation). Reasons for refusal are named in Article 39. Nevertheless, in most cases it will also be necessary to seize a court in the State where enforcement is sought to order specific enforcement measures. What this means in practice in most EU Member States is that a person seeking to enforce a foreign decision needs to instruct a local lawyer to institute enforcement proceedings in the relevant State. The Recast has abolished the requirement for a declaration of enforcement.

For cases under the previous legal regime (Article 100 paragraph 2 Brussels II b Regulation, see point I.1. above), it continues to apply that custody and access decisions issued in an EU Member State are to be recognised and enforced (Article 21 and Article 28 Brussels II a Regulation), however a declaration of enforceability will still be required. In such cases, there is an exception applying to enforcing a handover decision issued in the State of habitual residence, which follows on from a decision refusing the return of a child based on Article 13 Hague Child Abduction Convention (Article 11 paragraphs 6-8 Brussel II a Regulation).

A change brought in by the Brussels II b Regulation is that return decisions issued in an EU Member State under the terms of the Hague Child Abduction Convention can also be recognised and enforced, for example in the event that the child, after the return decision has been issued, is taken to another Member State, since the concept of a decision in accordance with Chapter IV of the Regulation includes return decisions (Article 2 paragraph 1 sentence 2 a) Brussels II b Regulation).

f) Recognition and enforcement of privileged return decisions
In certain cases, the Brussels II b Regulation also provides for particularly effective recognition and enforcement proceedings: If the return of the child to Germany has been refused in another EU Member State pursuant to Article 13 paragraph 1 b) or Article 13 paragraph 2 Hague Child Abduction Convention, Article 29 of the Regulation makes prompt institution of custody proceedings possible in the State where the child was (originally) habitually resident – which here refers to Germany – unless such proceedings are already ongoing. If such newly initiated or ongoing custody proceedings lead to a decision granting a handover to the parent left behind in Germany, this decision is what is known as a privileged decision (Article 42 paragraph 1 b) Brussels II b Regulation), and is to be recognised and enforced immediately in other EU States (except Denmark) as long as it is accompanied by a certificate in accordance with Article 47 Paragraph 1 a) of the Regulation (Articles 45, 46 Brussels II b Regulation). The possibilities with regard to contesting the recognition are severely limited in comparison with other types of decision (Article 43 paragraph 1 in conjunction with Article 50 Brussels II b Regulation). In addition, unlike under the previous Brussels II a Regulation (see Article 11 in conjunction with Article 42 Brussels II a Regulation), the certificate must also be served on the person against whom enforcement is to be carried out prior to the first enforcement measure (Article 55 paragraph 1 Brussels II b Regulation).

The Hague Child Protection Convention of 1996 (Hague Child Protection Convention) entered into force between Germany and 25 other States on 1 January 2011. It now applies to around 50 States. The current status of Contracting States to the Hague Child Protection Convention, in terms of their relations with Germany, can be found in the List of States on the German-language version of the website of the Federal Office of Justice and in general on the website of the Hague Conference on Private International Law.

Like the Brussels II b Regulation, the Hague Child Protection Convention governs, among other issues, the obligation upon Contracting States to recognise and enforce decisions issued in another Contracting State.
Where there is the intention to enforce a German decision ordering a handover in another Contracting State to the Hague Child Protection Convention, with a view to obtaining the return of the child to Germany, the decision needs to be declared enforceable in the State where the child is currently staying. Unlike in the case of the recognition of decisions from other EU Member States under the Brussels II b Regulation, the court in the State where enforcement is sought will, in these cases, examine whether the German court that issued the decision did indeed have international competence for the case under the Convention. As a general rule, this is the case if at the time when the decision was issued, the child had his or her habitual residence in the State where the court which issued the decision is located (i.e. in this case in Germany).

The European Custody Convention, which is open for signature by the Member States of the Council of Europe and by other countries (upon invitation), also brings with it options concerning the recognition and enforcement of decisions from foreign States. In relations with the other European Union Member States (with the exception of Denmark) the Convention has, however, been largely superseded by the Brussels II b Regulation (see above under 2.).

The current status of Contracting States to the European Custody Convention can be obtained from the Federal Office of Justice or can be seen in the list of States. It can also be found on the website of the European Council.

The situation is more difficult in cases where there is no international agreement for the resolution of such issues in place between Germany and the state in which the child is residing. The only option then is usually to request help from the authorities or courts of the state in question, and if necessary to instruct lawyers based in the country, or to ask NGOs based there for support. With a view to providing relief to the persons concerned, the Hague Conference on Private International Law is striving to ensure that each State – i.e. States Parties to the Conventions mentioned above and States which are not signatory to any relevant convention – would have to designate a so-called Central Contact Point for Cross-border Family Conflicts which would provide assistance to the extent possible in such cases. Information on the Central Contact Points abroad can be obtained from the German Central Contact Point for Cross-border Family Conflicts at www.zank.de

Information on the Central Contact Points abroad can be obtained from the German Central Contact Point for Cross-border Family Conflicts at www.zank.de and from the Federal Office of Justice. The Federal Foreign Office may be able to provide information and support in relation to an individual State.

It should be kept in mind that the content of the foreign law as well as the form of the judicial or official procedure can differ considerably from the procedure in Germany.

Information and advice are also provided by the Verband binationaler Familien und Partnerschaften (Association of binational families and partnerships). International family mediation may also be another option. Further information on mediation can be obtained from the charity MiKK e. V. – Mediation in internationalen Kindschaftskonflikten (International Mediation Centre for Family Conflict and Child Abduction) (see below under IX. 3.).

If a child has been abducted and taken to Germany, as a rule, the same principles apply as in the case of an abduction from Germany to a country other than Germany (see above under III 1.-4.). The parent who has been left behind in the foreign country can turn to the Central Authority there for help. The Federal Office of Justice, in its role as Central Authority under the Hague Child Abduction Convention, has published an information leaflet containing Advice for Applications (Information leaflet, Federal Office of Justice Hague Child Abduction Convention proceedings) which has been sent to all of the Central Authorities abroad and is sent to the applicants abroad for further information in individual cases. The aim of this is to facilitate and accelerate the application process, so as to avoid unnecessary delays. Applicants can also contact the Federal Office of Justice directly, or – if necessary with the help of a lawyer – make an application for return at the competent German family court. Of the more than 600 family courts in Germany, only 22 have jurisdiction in proceedings concerning return, access and recognition and enforcement under the Hague Child Abduction Convention, the Brussels II b Regulation, the Hague Child Protection Convention and the European Custody Convention in connection with Sections 10-12 IFLPA (IntFamRVG) (these 22 Family Courts are each in a district where a Higher Regional Court has its seat; in Lower Saxony (Niedersachsen) with its three Courts of Appeal, the Family Court Celle only). You can find the list under “Competent Courts in Germany".

Information and advice for both the abducting and the left-behind parent is also offered by the German Central Contact Point for Cross-border Family Conflicts (ZAnK) within the German Branch of the International Social Service. International family mediation may be of help. Further information on mediation can be obtained from the charity MiKK e. V. – Mediation in internationalen Kindschaftskonflikten (International Mediation Centre for Family Conflict and Child Abduction) (see below under IX. 3.).

If one parent is living with the couple’s child in a country other than Germany, and refuses to allow the other parent to have access to the child, it is possible for access rights to be asserted in proceedings similar to those relevant for the return of an abducted child (Article 21 Hague Child Abduction Convention). A request can be made to the Federal Office of Justice. After the request has been transmitted to the relevant Central Authority of the other State, rights of access can, in the Contracting States of the Hague Child Abduction Convention and the European Custody Convention (see below under 4.), be established for the first time by the competent judicial or administrative authorities or, if such rights have already been granted by German courts, they can be enforced in the other Contracting States. It is important to note, however, that the obligations created by Article 21 of the Hague Child Abduction Convention are interpreted differently in different Contracting States, and therefore the assistance provided by foreign Central Authorities and courts may vary. In particular, a number of States will only provide assistance under these provisions in cases where a child has been abducted and then access is sought.

If an existing German decision on access rights is to be enforced in another EU Member State (with the exception of Denmark), the recognition and enforcement of the decision can be based on the Brussels II b Regulation (or the Brussels II a Regulation for cases under the previous regime, see point I.1) One of the aims of the Brussels II b Regulation, as was the case with the Brussels II a Regulation before it, is to guarantee that after their parents’ separation, children are able to maintain contact with both parents – even if they will be living in different EU Member States from each other. Therefore, an enforceable decision on rights of access rendered in one Member State is directly enforceable in another as what is known as a privileged decision, if the decision is accompanied by a certificate in accordance with Article 47 paragraph 1 a) of the Regulation. The possibilities with regard to opposing recognition are severely limited (Article 43 paragraph 1 in conjunction with Article 50 Brussels II b Regulation). The access decision is then to be treated like a decision issued by domestic courts in the requested State, and has to be enforced under the same conditions.

If one of the parties fails to comply with the existing decision relating to rights of access, the other party is able to bring a motion to the competent authorities of the State where the decision is to be implemented (enforcing Member State) for enforcement. For these purposes, a copy of the decision and the certificate pursuant to Article 47 paragraph 1 a) of the Brussels II b Regulation must be submitted (Article 46 paragraph 1 Brussels II b Regulation). The certificate must be served on the person against whom enforcement is intended to be carried out prior to the first enforcement measures being implemented (Article 55 paragraph 1 Brussels II b Regulation). The enforcement proceedings are conducted in accordance with Articles 51 et seq. of the Brussels II b Regulation, however, the details, especially as relates to the specific enforcement measures, are governed by national law. What this means in practice in most EU Member States is that a person seeking to enforce a foreign decision needs to instruct a local lawyer to institute enforcement proceedings in the relevant State. The competent authority or courts of this Member State may determine practical arrangements for organising the exercise of rights of access, provided that the essential elements of the decision are not altered, Article 54 paragraph 1 Brussels II b Regulation. However, the law on enforcement in some States only allows limited possibilities for access arrangements to be enforced.

The Central Authority advises and supports the holders of parental responsibility seeking the recognition and enforcement of decisions as set out in Article 79 (c) Brussels II b Regulation.

The Hague Child Protection Convention also offers possibilities as regards recognition and enforcement of decisions abroad. The current status of relations to the States signatory, as refers to relations with Germany, can be found in the list of States and on the website of the Hague Conference on International Private Law.

If one of the parties fails to comply with an existing decision relating to rights of access, the other party can apply to the competent authorities of the State where the decision is to be implemented (enforcing State) for a declaration of enforceability and enforcement. Once this declaration of enforceability has been granted, the decision relating to rights of access has to be treated like a decision which was issued by domestic courts in the requested State and enforced under the same conditions (Article 28 Hague Child Protection Convention). However, the law on enforcement in some States only allows limited possibilities for access arrangements to be enforced by compulsion.

The European Custody Convention also provides for the recognition and enforcement of decisions abroad. In relations with the other European Union Member States (with the exception of Denmark) the Convention has, however, been largely superseded by the Brussels II b Regulation (see point 2. above).

Parents or other individuals living abroad who wish to have access to children living in Germany can, as long as they live in a Contracting State to the Hague Child Abduction Convention or the European Custody Convention, contact the Central Authority in their own country of residence or the Federal Office of Justice as the Central Authority for Germany. The Federal Office of Justice, in its role as Central Authority under the Hague Child Abduction Convention, has published an information leaflet "Advice for Applications (Information leaflet, Federal Office of Justice Hague Child Abduction Convention proceedings)" which has been sent to all of the Central Authorities abroad and is sent to applicants abroad for further information in individual cases. The aim of this is to facilitate and accelerate the application process, so as to avoid unnecessary delays.

If no recent judicial order on access rights exists yet, the Federal Office of Justice can, with the help of the relevant legal professional(s) if necessary, initiate proceedings at the competent German court in the name of the applicant living outside of Germany (Article 21 Hague Child Abduction Convention and/or Article 11 paragraph 3 ECC in conjunction with Section 6 subsection 2 IFLPA and Sections 1684 and 1685 German Civil Code (BGB)). The German courts generally have international competence for matters concerning children who live in Germany. Local competence for the application lies with one of the 22 specialised Family Courts in Germany, which are courts of first instance (Sections 11, 12 ILFPA: which as a rule is the court in the catchment area of which the child was living at the time the application reached the Federal Office of Justice). If the person living outside Germany who wishes to have access prefers it, the proceedings (with or without the involvement of a lawyer) can be conducted without the support of the Federal Office of Justice. Section 13 subsection 2 IFLPA offers the choice between international proceedings at a specialised Family Court, at which the Federal Office of Justice would initiate the proceedings, and proceedings at the geographically nearer general Family Court (Section 152 Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction (FamFG – Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der Freiwilligen Gerichtsbarkeit): i.e. the court at which matters relating to marriage would first become pending, otherwise, this is the court in the catchment of which area the child’s habitual residence lies, or alternatively, the court in the catchment area of which the need for additional care was first recognised).

Read more on "Competent German Courts"

If a sufficient decision on access rights exists which was issued by the court of another country, it may be possible for this to be enforced in Germany in line with the Brussels II b Regulation, the Hague Child Protection Convention or the European Custody Convention in the event that obligations arising from the judgement are being violated or not being complied with. In this respect, please see the explanations provided under V. 2-4 above. As the Central Authority for Germany, the Federal Office of Justice can be of assistance thanks to the powers vested in it under the law.

The recognition and enforcement themselves are carried out in line with the Brussels II b Regulation (or the Brussels II a Regulation for cases under the old regime, see point I.1.), the European Custody Convention or the Hague Child Protection Convention (including declaration of enforceability) to the extent that these are applicable. Competence in this case lies with one of the 22 specialised Family Courts (Sections 10, 12 IFLPA).

In the event that none of the aforementioned legislation applies, it may be the case that recognition and enforcement can be carried out in Germany under national law (Section 86 et seq. and Section 108 et seq. German Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction (FamFG)). In such an event, the usual rules on court competence will generally apply. The competence of the 22 specialised Family Courts as described applies in the event that the other country involved is at least a Contracting State to the Hague Child Abduction Convention or the European Union, or if the person making the application is expressly invoking Article 21 of the Hague Child Abduction Convention, or in making the application is being represented by the Federal Office of Justice.

Sometimes, parties have no interest in having a decision on parental responsibility enforced by compulsion in another country, but there is nevertheless a legal interest on their part in having a court decide in a binding manner as to whether a decision is recognised in another country. This may especially be the case if the decision only establishes rights (such as rights of custody), but without this being accompanied by a specific and enforceable order.

Decisions on parental responsibility from one EU member state are, in principle, recognised by force of law in all other EU States (except Denmark) without any special procedure being required (Article 30 paragraph 1 Brussels II b Regulation (or Article 21 paragraph 1 Brussels II a Regulation for cases under the previous legal regime, see point I.1.). The same applies to decisions issued in other Contracting States to the Hague Child Protection Convention (as per Article 23 paragraph 1 thereof). However, any authority receiving a decision from abroad may review each individual case to see whether there is any reason for recognition to be refused (such reasons are contained in Article 39 Brussels II b Regulation or Article 23 Brussels II a Regulation and Article 23 paragraph 2 Hague Child Protection Convention). In the interest of legal certainty, the recognition of a decision can therefore be determined in a legally binding manner by a court (Article 21 paragraph 3 Brussels II a Regulation for cases under the previous legal regime, see point I.1.) or Article 24 Hague Child Protection Convention), or, as per the new Regulation, have the non-existence of grounds for the refusal of recognition determined (Article 30 paragraph 3 Brussels II b Regulation). In relations with Turkey, however, some of the details differ. In practice, the European Custody Convention still sometimes applies in this cases. Information sheets and forms in both German and Turkish can be found under "Application Forms".

Applications for recognition can be submitted either directly to the court in the country in which the decision is to be recognised or sent to the Federal Office of Justice, or its counterpart Central Authority in the other State in question. The Federal Office of Justice cannot initiate proceedings in Germany itself, but can provide information on which is the competent court and what documents are required. The support offered by other Central Authorities is frequently limited to this information too.

Authentic instruments and agreements are recognised by force of law in the other EU Member States (Article 65 Brussels II b Regulation). The Brussels II b Regulation now contains a legal definition of the terms “authentic instruments” and “agreement” for the first time. The decisive factor in future will be the fact that a public authority or other authority empowered for this purpose was involved in drawing up or registering the authentic instrument or agreement. Furthermore, the Regulation sets out that, in order to be recognised, authentic instruments and agreements must now be accompanied by a certificate (Article 66 Brussels II b Regulation). Moreover, the issuing State must have had international jurisdiction for the matter (Article 64 Brussels II b Regulation). Even where this is complied with, recognition may be refused for certain reasons (Article 68 Brussels II b Regulation), and, thus in the interests of legal certainty, the determination of the non-existence of grounds for the refusal of recognition can be applied for (Article 65 in conjunction with Article 30 paragraph 3 Brussels II b Regulation).

If the matter at hand is the recognition in Germany of a decision issued in another EU Member State (with the exception of Denmark) or another Contracting State to either the Hague Child Protection Convention or European Custody Convention, it will fall into the competence of one of the 22 specialised German Family Courts of first instance. In the event that said international provisions do not apply to the country in which the original decision was issued and the decision thus needs to be recognised under German national law (Section 107 et seq. Act on Proceedings in Family Matters and in Matters), the general rules on court competence will apply (Section 108 paragraph. 3 Act on Proceedings in Family Matters) i.e. the court in whose catchment area the respondent or the person who is the subject of the decision has his or her habitual residence, or alternatively, the court in whose catchment area the interest of having a legal judgment issued becomes known or the need for care exists; possible exception as per Section 13 IFLPA.

Read more on "Competent German Courts"

No charges are levied for the work done by the Federal Office of Justice or its counterpart Central Authorities outside Germany in proceedings taking place under the Hague Child Abduction Convention (Article 26 paragraph 1), the European Custody Convention (Article 5 paragraph 3), or the Brussels II b Regulation (Article 83).

In the case of other costs, a distinction is to be made according to whether court proceedings need to be conducted abroad (known as “outgoing proceedings” with an applicant living in Germany) or are taking place in Germany (known as “incoming proceedings”, where the applicant lives abroad).

a) Translations

The costs of the translations required are usually to be met by the parent making the application. Which translations are “required” can be found either by consulting international provisions directly or is governed by the requirements of the national law of the requested state in an individual case. Hague Child Abduction Convention(Article 24 paragraph 1), Hague Child Protection Convention (Article 54 paragraph 1) and European Custody Convention (Article 6 paragraph 1) all require that applications, communications and other correspondence be provided to the authorities of the requested state with a translation into the language of said country.

Under the new Brussels II b Regulation, the court or competent authority before which the recognition of the decision is being invoked, may require a translation of the translatable content of the free text fields of the certificate as per Article 31 paragraph 1 (b) and, where applicable, of the decision or equivalent documents under Article 32 (Article 31 paragraphs 2 and 3, Article 31 paragraph 2 Brussels II b Regulation). For enforcement, a translation of the translatable content of the free text fields of the certificate which specifies the obligation to be enforced may also be required, and where this is necessary, of the decision (Article 35 paragraph 3 and 4 Brussels II b Regulation). This also applies to the recognition and enforcement of what are known as privileged decisions (see above), i.e. decisions granting access rights and custody handover decisions made in the State of habitual residence and after the return has been refused (Article 43 paragraph 3 and Article 46 paragraphs 2 and 3 Brussels II b Regulation). In proceedings to refuse enforcement, the production of a translation of the free text fields, which contain the obligation to be enforced, or of the decision, may be required (Article 59 paragraph 3 and 4 Brussels II b Regulation). Furthermore, the person against whom the enforcement is to be conducted may, under certain circumstances, demand a translation of the decision and of the translatable free text fields of the certificate under Article 47 Brussels II b Regulation (Article 55 paragraph 2 Brussels II b Regulation).

Article 91 paragraph 2 Brussels II b Regulation makes it clear that a translation under the Regulation shall be carried out into the official language of the Member State in question.

Under the previous Brussels II a Regulation (which continues to apply to cases under the previous legal regime, see point I.1.), the court receiving the application for recognition or non-recognition of a decision from another EU Member State or for the declaration of enforceability of such a decision is able to demand certified translations of the decision and other official documents named in Article 37 of the Regulation. In the case of decisions on access rights or the return of children which are accompanied by a certificate under Article 41 or 42 of the Regulation, Article 45 paragraph 2 of the Regulation requires a certified translation of the entry under point 12 of the certificate as referred to in Article 41 concerning the arrangements for exercising access rights, and/or an entry under point 14 of the certification under Article 42 concerning the details of the measures put into place to ensure the return of the child.

The Regulation does not contain any other rules making translations a requirement. For this reason, further translations are only "required" to the extent that the requested State asks for them in an individual case.

If the application is to be dealt with

• in another EU Member State,
• in another Contracting State to the Hague Child Abduction Convention
• to the Hague Child Protection Convention or
• to the European Custody Convention or

the Local Court in Germany in the catchment area of which the applicant has his or her habitual residence, can issue an exemption from the translation costs if the personal and financial circumstances of the person making the application (this is usually one of the parents) fulfil the requirements for legal aid to be granted (Section 5 subsection 2 IFLPA (IntFamRVG)). In such a case, the Federal Office of Justice will have the translations as required carried out at its own expense. However, the Federal Office of Justice is unable to refund the costs of translations already arranged by the person making the application.

b) Court proceedings

The court proceedings for recognition and the declaration of enforceability of a custody or access rights decision in another Contracting State to the European Custody Convention is free of charge for the parent making the application, with the exception of any costs which arise associated with the return of the child, Article 5 paragraph 3 European Custody Convention. Nor does the Hague Child Abduction Convention, as a rule, allow court and legal representation costs to be charged to the parent making an application in return and access rights proceedings (Article 26 paragraph 2 Hague Child Abduction Convention). A number of countries, however, reserve the right to only grant an exemption from court and legal representation costs if the individuals concerned would also be awarded legal aid for such costs in their system. The same applies in a number of countries where a new decision relating to access rights is to be issued (Article 11 paragraph 3 in conjunction with Article 5 paragraph 4 ECC), as well as in proceedings for recognition or a declaration of enforceability as per Brussels II b Regulation or Brussels II a Regulation (for cases under the previous legal regime, see point I.1.) or the Hague Child Protection Convention. These states you will find in the list of States . The matter of whether to provide financial support or even a full costs exemption depends, subject to certain other conditions, in many countries on the person making the application undergoing a means test, and sometimes, an assessment on the likelihood of success in the court proceedings as well. The Central Authority for International Custody Conflicts at the Federal Office of Justice is able to provide more details on the framework conditions, possible courses of action and requirements in individual countries.

Court fees and the costs of legal representation generally arise in return proceedings taking place under the Hague Child Abduction Convention, proceedings for the recognition or declaration of enforceability of a decision on rights of custody or access under the terms of the Brussels II a Regulation or the Brussels II b Regulation or the Hague Child Protection Convention, and proceedings aiming at an initial or new ruling on access rights under the Hague Child Abduction Convention or the European Custody Convention. This applies regardless of whether the proceedings are conducted with or without the support of the Federal Office of Justice as Germany’s Central Authority. It also applies to other proceedings without the involvement of the Federal Office of Justice which aim at bringing about the issuance of custody rights or access decision in Germany in a cross-border context (such as when German courts are competent for the matter under the Brussels II b Regulation or the Hague Child Protection Convention). However, these costs are met by the German state to the extent that the individuals making applications who live outside of Germany are eligible for legal aid. The court that decides on whether to grant the application for legal aid is the same one that rules on the matter in general. For legal aid to be granted, there must be a financial need for it and a reasonable likelihood of success in the main proceedings. An application form and an accompanying leaflet containing extra information is available in German alongside a number of translations into other languages

Only a limited amount of protection can be achieved against cross-border child abduction, as this can happen for any number of reasons. In addition to security measures put in place by courts in cases where there is reason to suspect that an abduction will be committed, more general security measures can be put in place by agreement to at least reinforce the legal position of the parent who fears the abduction of a child.

If the existence of certain facts gives reason to believe that one of the parents intends to leave Germany with the child, the other parent can apply to the competent Local Court to have a temporary injunction issued to, for example to

• have sole custody transferred to him or herself,
• have the sole right to decide on the child’s place of residence transferred to him or herself,
• have the sole right to decide on the child’s place of residence transferred to the Youth Welfare Office,
• have the other parent barred from leaving the place of actual habitual residence with the child without the prior consent of the court,
• officially request that the other parent hand over the child’s passport to the Youth Welfare Office or court,
• to order that the actual habitual residence of the child be moved temporarily to a neutral institution,
• to have the “cross border alert” communicated to other countries in the Schengen area (Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, the Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden and Switzerland).

The ban on border crossing or initiation of a cross-border search is carried out on the request of the Local Court in question, by the Federal Police Headquarters, Heinrich-Mann-Allee 103, 14473 Potsdam, Germany. The request must relate to a specific, genuine threat on the part of one of the parents or another person to remove the child unlawfully to a foreign country. The Federal Police Headquarters can have the child’s details entered into the Schengen Information System (SIS) to either locate the child or have him or her placed into protective custody or have the parent committing the abduction placed into the system (this is done at the same time as the cross-border search), so that a search for the individuals concerned can be carried out.

In the case of married couples who have different nationalities, the woman’s rights of custody may be reinforced by a pre-nuptial agreement. In the event of a legal conflict, this would improve the level of protection offered by courts or administrative authorities abroad.

At the same time, it should be noted with this aim in mind that many countries have provisions setting out the form a pre-nuptial agreement must take in order for it to be legally effective.

Such details can be requested, as necessary, from the Embassies or Consulates of the relevant country in Germany. Information and advice is also available from the German Central Contact Point for Cross-Border Child Custody Conflicts Zentrale Anlaufstelle für internationale Kindschaftskonflikte (ZAnK), and the Association of Binational Families and Partnerships (Verband binationaler Familien und Partnerschaften):

Mediation is particularly well suited to resolve issues which arise in family conflicts, in which parents try, with the help of professional mediators, to arrive at a solution for themselves.

A bi-national co-mediation, which is conducted by two mediators at the same time, is especially appropriate in cases where this is a better way of guaranteeing neutrality or understanding of each parties’ issues. A typical team of mediators would be made up of one woman and one man, one of whom would be a qualified lawyer and the other a qualified social worker. The team should also reflect the different cultural and linguistic backgrounds of the parents.

Should the parties involved in a conflict over custody or access rights – usually the parents – demonstrate interest in undergoing mediation, the Federal Office of Justice co-operates closely with the International Mediation Centre for Family Conflict and Child Abduction (MiKK e.V.), a charitable organisation which offers a wide range of support and advice with regard to mediation, and works as an intermediary for mediation in cross-border child abduction, custody and access rights conflicts. For more information, please visit the website of the Centre at
www.mikk-ev.de

In some cases, the Federal Office of Justice can, on the application of the parties, assess whether the costs of mediation can be taken over. This is subject to a means test and relies on there being sufficient funds in the budget.

In proceedings which have been initiated by the Federal Office of Justice under the legal bases named above, MiKK e.V. can find suitable mediators, organise premises and, in general, take care of the practicalities of getting mediation underway. In doing so, it works closely with the Federal Office of Justice, which, in turn, liaises directly with the competent court, so that court proceedings are not delayed by mediation and the court can factor any outcome of mediation into its decision. This makes the outcome of the mediation enforceable, i.e. through coercion, should one of the parties decide not to adhere to the agreement which has been reached.

General information and advice on mediation can also be obtained from the German Central Contact Point for Cross-Border Child Custody Conflicts:
www.zank.de