This post was contributed by Caroline Sophie Rupp, who is a professor at the University of Kiel.
To vary an adage, “sad cases make sad law“. The case at hand, regarding the return of a child to its father in Spain after being brought to Germany by its mother, illustrates this.
After a lengthy legal battle, a Spanish judgment ordered the return of the child. Having unsuccessfully attempted to have the enforcement in Germany (based on a certificate according to Article 42 of the Brussels II bis Regulation) temporarily stayed with the enforcement court, the mother applied to the German Constitutional Court (Bundesverfassungsgericht, hereinafter: BVerfG) for interim relief. This was granted – temporarily – on August 1, 2022 by the 3rd chamber of the BVerfG’s First Senate (1 BvQ 50/22, ECLI:DE:BVerfG:2022:qk20220801.1bvq005022). However, the story is far from over. There have been several extensions of this interim relief, and a constitutional complaint has been lodged in the name of the child.
The history of the case is as long as it is complicated (part I), eventually leading to the BVerfG’s decision (part II). A selection of the many issues touched upon by the case will then be highlighted (part III).
I. A Legal Odyssey
In August 2013, a son was born in Madrid to unmarried parents. After their separation in March 2014, the mother took the child with her to Germany without the father’s knowledge or permission. Living in Germany ever since, the son – now nine years old – speaks only German, goes to school and is fully integrated socially in Germany (including a good relationship with the German citizen the mother married in July 2014 and his family, even after a subsequent divorce).
The custody proceedings initiated by the father in Madrid resulted in a (default) decision in June 2015 which granted him custody of the son as well as the right to decide on his residence. In February 2016, the father applied to a German family court (Amtsgericht als Familiengericht) in Bamberg for an order for the immediate return of the child to Spain according to the 1980 Hague Convention on Child Abduction.
The family court rejected this application on the grounds that the child had indeed been wrongfully removed from Spain to Germany by its mother, but that more than a year had passed (Article 12 para. 1 Hague Convention on Child Abduction) and the child was settled in its new environment (Article 12 para. 2 Hague Convention on Child Abduction).
The father’s appeal to the Higher Regional Court (Oberlandesgericht Bamberg, hereinafter: OLG) was dismissed in June 2016, on the ground that taking the child out of its social environment would not be in its best interest.
In December 2016, the mother applied to the German family court for sole custody. The family court declined to decide as German courts lacked jurisdiction. The father had lodged a request for return within a year of his learning of the child’s whereabouts, so international jurisdiction remained with the Spanish courts (Article 10 lit. b) no. i) Brussels II bis). This was upheld on appeal in April 2018. However, when the mother requested the Madrid court to amend its decision of June 2015 and grant her custody in January 2019, this was equally declined due to a lack of jurisdiction. The Madrid court considered the Spanish courts to have lost jurisdiction as the child had established habitual residence in Germany, ending the applicability of the Hague Convention on Child Abduction and leading to the German courts’ international competence according to Article 61 Brussels II bis. Subsequently, a Spanish criminal court condemned the mother to a 3-year prison sentence as well as the loss of custody rights for seven years because of child abduction.
In July 2019, the mother applied to the German family court for sole custody again. This time, her request was granted: The court took the view that the previous decline of jurisdiction by both German and Spanish courts and the fact that the father had never exercised the sole custody granted to him in 2015 necessitated action. While none of the exceptions listed in Article 10 lit. b) Brussels II bis was directly fulfilled, the non-application of Article 10 Brussels II bis was considered possible through the analogous application of lit. b) no. iv). This reasoning was however rejected on the father’s appeal. The OLG considered Article 10 Brussels II bis to be applicable still, with no possibility for interpretation beyond its wording regarding a “cut-off date”. Rather, it pointed to the possibility to transfer a case to a better-placed court under Article 15 Brussels II bis as a well-balanced remedy for problems arising from the perpetuated international competence of the Member State of origin. The result in October 2021 was – again – German courts declining jurisdiction.
Meanwhile, in June 2020 the father had applied to the German family court in Nuremberg, demanding the (immediate) return of the child by way of provisional measures. The evaluation of the child’s situation showed that transferring him to Spain into the custody of a father he hardly knew (and did not even share a common language with) was likely to result in a severe traumatisation. With regard to the child’s best interest, the family court dismissed the father’s application for (interim) return in September 2020. This decision was upheld on appeal in November 2020 by the Higher Regional Court (OLG) Nuremberg, which additionally pointed out that provisional measures under Article 20 Brussels II bis could not be used to make up for the failure of the previous return application under Article 12 para. 2 Hague Convention on Child Abduction (in 2016).
Not to be deterred, the father then applied to a Madrid court for return of the child. While the mother made use of her opportunity to participate in the proceedings (only) by way of a written statement, the child was apparently neither heard nor represented. In September 2021, the Madrid court ordered the child’s return to Spain and to his father, not taking into consideration that the child had no relationship with the father and spoke no Spanish. It also pointed out that due to the criminal sentence against the mother, a warrant for her arrest had been issued. In February 2022, the Madrid court issued a certificate for the cross-border recognition and enforcement of this judgment under Article 42 para. 2 Brussels II bis.
Presenting this certificate to the German family court, the father demanded enforcement of the return decision. In March 2022, the family court, considering it immediately enforceable in Germany, ordered the mother to promptly return the child. However, on the same day the German court contacted the Madrid court through the European Judicial Network and requested it to revoke the certificate, pointing out that the conditions for issuing a certificate under Article 42 para. 2 Brussels II bis had not been met. The German decision denying the return of the child in 2016 had been rendered according to Article 12 para. 2 and not Article 13 Hague Convention on Child Abduction.
On the mother’s appeal against the enforcement order, in June 2022 the OLG (regional court of appeal) confirmed that the return decision remained enforceable as the father had presented a certificate by the Madrid court of origin according to Article 42 para. 2 Brussels II bis and Article 42 para. 1 Brussels II bis does not foresee any possibility for opposition to the judgment or the certificate before the court of enforcement (in another Member State) – all objections against the return of the child or the procedure leading to the return judgment have to be brought solely before the court of origin. According to the OLG, this includes a review of whether the conditions for issuing a certificate under Article 42 para. 2 Brussels II bis had been met. While the German family court had suggested referring this point to the ECJ for clarification, the OLG considered it already clarified by Zarraga (ECJ C-491/10 PPU) and refrained from a referral. Thus, even though in this case the certificate had been issued wrongly, the OLG saw no grounds for the German family court to refuse enforcement.
In view of this, the mother applied to the Madrid court in June 2022 requesting an amendment of this certificate, arguing especially that the child’s interest had not been regarded in the proceedings. She also requested a temporary stay of enforcement in Germany until the Spanish courts had reached a decision regarding the amendment of the certificate. The family court rejected this, as according to the ECJ (as quoted by the OLG) the existence of the certificate prevented any examination on the merits. The mother lodged an immediate appeal, claiming that the child’s transfer to Spain would result in a massive threat to his welfare. The OLG rejected this as it considered an examination on the merits to be the exclusive domain of the (Spanish) original court. Very unusually, the OLG then addressed both parents, admonishing the father to consider the child’s best interests and not insist on his immediate transfer to Spain, and the mother to accept the legal situation and not aggravate it further for her son.
In this situation, the mother applied to the German Constitutional Court (BVerfG), requesting interim measures to stay the enforcement of the child’s return to Spain until the Spanish courts had reached a decision regarding the amendment of the certificate.
II. The Decision by the Bundesverfassungsgericht
The BVerfG granted the mother’s application and ordered a temporary stay of enforcement regarding the return decision – initially, until August 11, 2022. Due to the particular urgency of the matter, the father was not heard in the interim proceedings.
Granting such a temporary injunction requires that a (future) constitutional complaint (Verfassungsbeschwerde) in the main proceedings would be neither inadmissible nor obviously unjustified. On the basis of a summary assessment, the BVerfG was satisfied that this was the case. The time limit for a constitutional complaint against the German courts’ decisions of March 2022 and June 2022 had not yet expired. Such a complaint by the mother herself could be based on her constitutional parental rights (Article 6 para. 2 s. 1 Grundgesetz). A constitutional complaint by the child was considered envisageable as well – however, due to the mother’s lack of custody it would need to be raised by a guardian ad litem.
According to the BVerfG, it was not to be ruled out that the interpretation and application of Article 42 Brussels II bis by the family court and the OLG had led to unjustifiable impairments of the mother’s and the child’s fundamental rights. The German courts had been aware of the danger an immediate return to Spain would pose to the child’s welfare; however, they had considered themselves unable to take into account the child’s and the mother’s constitutional rights. In their opinion, Article 42 Brussels II bis (as interpreted in accordance with the ECJ) prevented them from considering these “substantial” aspects of the child’s welfare in the enforcement proceedings based on a certificate from another Member State, EU law barring an examination on the merits under all circumstances.
The BVerfG, however, pointed out that in this case, Article 42 Brussels II bis did not necessarily impede such an examination as it was not applicable: The certificate had been wrongly issued as the situation did not fall within its scope (as shown by the family court in its March 2022 decision). As Article 42 Brussels II bis can prevent an examination on the merits by the enforcement court only when it is applicable, under these circumstances a review, especially with regard to fundamental rights, under general rules would have remained possible.
The family court and the OLG had assumed that the presentation of a certificate prevented the enforcement court from even examining whether Article 42 Brussels II bis was applicable in the first place. Such a far-reaching interpretation needs to be considered also in light of European fundamental rights. It could lead to disregarding grounds for non-enforcement intended to protect the child, although the prerequisites for such an exclusion under Article 42 Brussels II bis are not fulfilled. On the other hand, an examination by the enforcement court limited to the question of the applicability of Article 42 Brussels II bis would not be contrary to the ECJ’s position established in Zarraga, as it would not extend to an examination of Article 42 Brussels II bis “in substance”. Such an approach would then, in case the enforcement court determines Article 42 Brussels II bis to be inapplicable, open the door for considering in how far a forced return of the child would infringe fundamental rights. Not taking these considerations into account, the decisions by the family court and the OLG constitute possible violations of fundamental rights, making a future constitutional complaint potentially successful. (The BVerfG thus can leave open the question whether the child’s EU fundamental rights might demand an examination on the merits by the enforcement court and an interpretation of EU law allowing for it when there are no other possibilities to avoid massive fundamental rights infringements, and whether in case of a lack of such a fundamental rights protection on the European level the German Grundgesetz might impose such an examination on German courts in exceptional circumstances.)
Weighing the consequences of not granting interim measures and later success of the constitutional complaint against the consequences of granting interim measures and later non-success of the constitutional complaint, the BVerfG granted the temporary injunction in order to avert serious disadvantages. Not granting interim measures would result in the child’s return to his father who could immediately take him to Spain, posing a grave and irreversible danger to the child’s welfare and blatantly contradicting the child’s best interest, as also stressed in the various family court and OLG decisions – with a potential second enforced return back to Germany after the constitutional complaint proceedings. Granting interim measures and conserving the status quo would result in a (further) delay of the child’s return to his father, perpetuating the wrong against the father but hardly disadvantaging the child.
The BVerfG thus granted the temporary injunction, limiting it initially until the end of the deadline for lodging a constitutional complaint (by the mother) and pointing out that if such a complaint was admissible, a further stay of enforcement could be extended until the Madrid court reached a decision regarding the mother’s request for amendment of the certificate. After a guardian ad litem had been appointed for the child (enabling a constitutional complaint by the child also), the BVerfG reissued the temporary injunction and extended it until the end of the deadline for the initiation of such proceedings (BVerfG August 10, 2022). A constitutional complaint having been lodged in the child’s name, the BVerfG granted another stay of enforcement until a decision regarding this constitutional complaint had been reached, but limited to six months (BVerfG 1 BvR 1691/22, September 1, 2022, ECLI:DE:BVerfG:2022:rk20220901.1bvr169122). It pointed out that a decision reached in July 2022 by the Madrid court did not address the concerns raised regarding the fulfilment of the requirements for the certificate, and could hence not alter the balance of the weighing of interests.
III. More Questions Raised than Answered
The BVerfG judgment is – both in form and in content – no more than a stay in proceedings. It is not for interim measures to reach a final verdict regarding the infringement of (German) fundamental rights. In how far fundamental rights have indeed been violated by the German courts’ enforcement decisions will remain to be decided in the main constitutional proceedings which have been brought by the child (the mother has, apparently, limited herself to the ”isolated” interim measures procedure without proceeding to a constitutional complaint).
It is also not for the German Constitutional Court to decide on the interpretation of EU regulations on international civil procedure. With regard to the interpretation of Article 42 Brussels II bis, the BVerfG offers no more than an option – albeit one that provides an elegant solution for the case at hand (and beyond). The potential violation of fundamental rights by the German enforcement courts does however not stem from a “wrong” interpretation of Article 42 Brussels II bis, but from their disregard of the potential line of interpretation proposed by the BVerfG, (an examination limited to the applicability of Article 42 Brussels II bis, non-applicability allowing for a review under general rules). Their duty to explore it (aiming at an interpretation safeguarding fundamental rights) would probably have led to a referral to the ECJ, as initially suggested by the family court. Such a referral would have been desirable on several counts. Firstly, only the ECJ can provide the much-needed clarity regarding the interpretation and scope of Article 42 Brussels II bis, especially whether it truly comprehensively precludes any examination by the enforcement court, even restricted to the preliminary matter of its scope of application. Secondly, a referral would have allowed the ECJ to temper the strict principles established in Zarraga with a more differentiated approach, specifically taking into account the child’s right to be heard in court and its fundamental rights (as granted by the EU Charter of Fundamental Rights). Thirdly, the ECJ’s position regarding the potential infringement of European fundamental rights would have provided more than welcome guidance for future child return cases under the Brussels regime, for both courts of origin and enforcement courts.
A need for clarification will persist under the Brussels II ter regime. Its rules on certificates for privileged decisions (Article 47 et seq. Brussels II ter) aim to clarify the relationship with the Hague Convention on Child Abduction and to clearly outline the conditions for issuing a certificate – including the opportunity for the child to express his or her views (Article 47 para. 3 lit. b)). Their fulfilment has to be certified by the court of origin using the form provided in Annex VI. These new safeguards are intended to avoid situations like the present case, in which a certificate is issued although the requirements for it are not met, and they will hopefully improve the situation somewhat. However, they cannot guarantee that the problem of wrongly issued certificates will be a thing of the past – and for such cases, Brussels II ter does not provide a remedy at the enforcement level either. As the problem of the possibility of “wrongful immediate enforcement” persists under the new rules, the solution of an “applicability control” seems attractive also for the future. If it is rejected, it seems well possible that – at least in exceptional cases – a need for review by the enforcement court may flow directly from (European and/or Member States) fundamental rights, as the BVerfG points out.
Apart from this, the case has highlighted a number of open issues – some old acquaintances, some fairly new on the scene. The interplay between the Brussels regime and the Hague Convention on Child Abduction is less complicated than the infamously difficult relationship between the Brussels regime and the 1996 Hague Convention on Child Protection. Nevertheless, it is not always easy in theory, and not always free of error in practice – as the choice of the wrong enforcement mechanism by the Spanish court shows (the certificate only being available for decisions under Article 13 Hague Convention on Child Abduction). Difficulties in coordinating the Brussels and Hague regimes also became apparent in the context of jurisdiction: The Madrid court declined jurisdiction on the ground that the Hague Convention on Child Abduction was no longer applicable, and on Article 61 Brussels II bis (which, however, addresses the relationship between Brussels II bis and the Hague Convention on Child Protection, not the Hague Convention on Child Abduction).
A more fundamental problem with regard to jurisdiction lies in the lack of an efficient solution for the (wrongful) decline of jurisdiction. Brussels II bis allowed no possibility for German courts to take on jurisdiction after the Spanish courts had declined it. The transfer procedure envisaged in Article 15 Brussels II bis and considered solely pertinent by the OLG was of no help, as the (Spanish) court which could have initiated such a transfer had instead declared itself not internationally competent, and the (German) court considering itself better placed could not initiate the transfer itself. Thankfully, such as possibility has now been introduced by Article 13 Brussels II ter. It is highly regrettable that it was not available in the case at hand, as a cooperative and clear allocation of jurisdiction to the courts of one country would certainly have avoided a half-decade-long “game of jurisdiction ping-pong”, and possibly (in case of German courts’ jurisdiction) cross-border hearing and enforcement issues – ultimately furthering the child’s best interest. Hopefully, both versions of the transfer mechanism will be used in the future to avoid similar pitfalls of (lack of)jurisdiction.
The limits of what is possible with regard to coordination and cooperation are also at the core of the questions raised with regard to the enforcement mechanism under Article 42 Brussels II bis. The model of immediately enforcing “privileged decisions” without a declaration of enforceability and without a possibility to oppose their recognition is based on the mutual trust between the Member States – the waiver of control by the enforcing state is not only grounded in a desire for simplification and acceleration, but mainly in the confidence that another Member State’s court has correctly applied all procedural and substantive rules. Mutually renouncing exequatur and révision au fond in favour of cooperative mechanisms is considered one of the greatest achievements of European civil procedure.
However, the current case illustrates that when something has gone wrong in the original proceedings, cooperative rectification may take its time, and immediate enforcement may bring more harm than good. The competence to rectify the wrongfully issued certificate lies with the Spanish court – which was directly contacted by the German court, in addition to being applied to by the mother, so that an examination (and possibly revocation) procedure was pending. While the certificate’s fate is thus suspended, its enforcement entails the danger of creating a situation which will soon have to be reversed. Especially as some of the enforcement consequences with regard to the child’s welfare are likely to be irreversible, proceeding to enforcement under these circumstances seems reckless and hardly in the best interest of the child. Prohibiting the enforcement court from temporarily staying enforcement proceedings in order to allow the court of origin to make the necessary corrections to the judgment means forcing it to perpetuate and deepen legal mistakes through enforcement with its eyes open. It seems very doubtful that this should be intended by the Brussels regime, or in keeping with European values and fundamental rights. On the other hand, a temporary stay of enforcement combined with a request for rectification allows the court of origin to re-examine and correct its own judgment without being prejudiced by enforcement considerations.
The final, and most far-reaching, point to be briefly addressed here is the matter of the child’s right to be heard. The child’s involvement in the proceedings has been problematic in this case in several regards. In the Spanish proceedings leading to the return judgment, the child was neither heard directly nor through a (court-appointed) representative. Already problematic in itself, this disregard of procedural requirements is aggravated by the fact that the Madrid court’s judgment does not address the central aspects of child welfare which would have argued against the child’s return to Spain. In view of the importance accorded to the child’s right to be heard (exemplified by the explicit inclusion of the courts’ duty to allow the child to express his or her views in Article 21 Brussels II ter), such an omission has to be viewed as a blatant disregard of (European) procedural rules, and a potential violation of fundamental rights. Enforcing a judgment rendered in such a way as a “privileged decision” without any possibility for control seems highly problematic (even if the requirements for this enforcement mechanism have been met). It might ultimately compel Member States to enforce judgments which, due to their procedural defaults, are clearly contrary to their own ordre public and to European fundamental rights and values – and in doing so, violate fundamental rights themselves. An exception from the “no examination” rule for cases of obvious breaches of European procedural rules might be considered to be, on the whole, more conducive to creating a “European area of justice”.
As a side note, it also proved difficult for the child to initiate a constitutional complaint before the BVerfG, as there are no clear rules in German law providing for the appointment of a guardian ad litem in situations such as this. Thankfully, this issue has been quickly and pragmatically addressed in the case at hand. Nevertheless, the non-appointment of a representative by the Spanish court and the technical difficulties in appointing a guardian ad litem for the German constitutional complaint proceedings illustrate the importance of establishing clear and efficient rules for the legal representation of children when their parents are unable to or fail to act on their behalf.
All in all, in the wake of the BVerfG decision more questions are left open than answered – in casu and in general. This particular legal battle will continue to be fought for some time and in several theatres of war. Apart from German and Spanish family and constitutional courts, the ECJ and ultimately the European Court of Human Rights might be involved. Even if a solution is reached before the child concerned reaches the age of majority, it is likely to leave all family members exhausted, alienated and traumatized. But especially as a good outcome for the individuals concerned seems impossible and a further legal dispute unavoidable, the case’s potential for the development of the interpretation of EU law should be exploited fully. Hopefully, further decisions on this matter will help to establish guidelines for similar situations, use the opportunities to clarify further aspects of the functioning and remedies of the Brussels regime, and aid in applying it in keeping with national and European fundamental rights and values. In this way, a sad case might at least contribute to making good law.