Abstract of the order of 9 April 2025

Second Chamber of the First Senate
Order of 9 April 2025
1 BvR 1618/24

Headnotes (non-official):

1a. The fundamental right of parental care (first sentence of Article 6.2 of the Basic Law) guarantees parents the right to care for and raise their children; in this respect, they must in principle be free from state influence or interference. Court decisions on parental disputes that impact the child’s future must be in line with the child’s best interests.

1b. Ordinary court decisions that, in applying international agreements, deprive a parent of the possibility to determine the place of habitual residence of the child in question affect this fundamental right.

2. The fundamental right of parental care also impacts the design and application of procedural law. The courts must therefore conduct proceedings in parent and child matters in such a way that they have a sound and reliable basis for a decision in the best interests of the child; this also applies to cases involving the interpretation and application of international agreements.

Summary:

I.

When a married couple with four children separated, the children initially lived in Germany with their mother. Following the divorce, the father remarried; he has been living in Denmark with his new wife since. The two affected children in the initial proceedings used to visit their father in Denmark on weekends. While they were on such a visit in August 2021, the father told the mother that he would not return the children to Germany, contrary to what had been agreed. Several court proceedings were instituted in both Germany and Denmark concerning custody rights and the return of the children. While both the German and the Danish courts considered the children’s retention by the father to be unlawful, the children were not returned to Germany, since the Danish courts presumed that grounds of hardship under the Hague Convention on the Civil Aspects of International Child Abduction were present that precluded their return.

In the initial proceedings before the competent family court in Germany that gave rise to the constitutional complaint, both the father and subsequently the mother filed for full custody. An expert opinion commissioned by the competent family court could not be drawn up, because the father refused to cooperate and did not allow the children to be assessed.

In the night of 31 December 2023, the affected children were abducted to Germany. At least from 3 January 2024, they have stayed with their mother. Following the abduction, several court proceedings regarding custody were instituted or continued in both Denmark and Germany. The competent Danish court awarded custody and the right to determine the children’s habitual residence to the father. The court held that it had jurisdiction because the children had been living in Denmark since August 2021. In Germany, the Higher Regional Court, in injunctive relief proceedings, likewise awarded sole custody to the father on 5 January 2024. In a further decision of 19 February 2024, the Higher Regional Court found that German courts did not have jurisdiction to decide in the principal proceedings regarding parental custody, given that it had to be assumed that the children were sufficiently integrated in Denmark.

With her constitutional complaint, the children’s mother asserts a violation of her right of parental care (first sentence of Article 6.2 of the Basic Law) and the general right of access to justice (Article 20.3 in conjunction with Article 2.1 of the Basic Law).

II.

The Second Chamber of the First Senate of the Federal Constitutional Court did not admit the constitutional complaint for decision because – being in part inadmissible and in part unfounded – the complaint had no prospect of success.

The Higher Regional Court held that the German courts do not have jurisdiction for the proceedings. While this decision affects the scope of protection of the fundamental right of parental care, the court’s interpretation and application of the provisions of the Hague Convention on Parental Responsibility and Protection of Children do not violate this right. The Federal Constitutional Court’s review is limited to whether the challenged decision contains errors of interpretation that are based on a fundamentally incorrect understanding of the significance or scope of the fundamental right. This was not the case here.

When the courts find that they do not have jurisdiction for a case, the affected parent can no longer determine the child’s place of residence or exercise other rights to raise and care for the child, at least if custody was awarded to the other parent in another contracting state to the Hague Convention. The relevant provisions of the Convention serve to prevent a situation in which the party abducting a child benefits from the abduction in terms of jurisdiction.

The Higher Regional Court’s finding that the children’s habitual residence was in Denmark, since they had been living there for more than two years, is not objectionable under constitutional law. The consideration that the habitual residence must be determined on the basis of the facts rather than the law is in accordance with the case-law of the highest competent courts. Nor does the way the Higher Regional Court conducted the proceedings result in a violation of the applicant’s fundamental right of parental care. While failure to hear the affected children may raise concerns, it does not constitute fundamental disregard for the significance of this fundamental right.

With regard to the general right of access to justice, the review of the Federal Constitutional Court is likewise limited. In addition to violations of the prohibition of arbitrariness, the Federal Constitutional Court can only object to decisions of the civil courts if they contain errors that are based on a fundamentally incorrect understanding of the significance of the affected fundamental rights and are of considerable weight in the specific case. This was not the case here. The general right of access to justice does not give rise to further-reaching requirements than the fundamental right of parental care does in this case.

Insofar as the constitutional complaint is directed against the decision of the family court and the decision of the Higher Regional Court in the injunctive relief proceedings, it is inadmissible. The applicant failed to demonstrate that she has a continued legal interest in this regard.