2024-01-03 19:30:20
Mr. Marko Oldenburger, you are a specialist lawyer for family law in Hanover. Two children of steakhouse heiress Christina Block were allegedly kidnapped from their father’s care in Denmark on New Year’s Eve. The boy and the girl are supposed to be with her in Hamburg. Are they allowed to stay there too?
Jannis Holl
Editor in the “Society & Style” department.
In this case, custody proceedings will probably follow. The Higher Regional Court had granted Ms. Block the right to determine her place of residence. This could now be checked due to the unclear procedures for the repatriation on New Year’s Eve. The well-being of the child will be of fundamental importance for this custody issue.
What chances does the father have of getting the children back?
If the children initially lived in Hamburg, but have been living in Denmark since 2021 and have developed a bond with the father and his life there, the court may be able to make a custody decision in favor of the father. It will be necessary to determine whether there was such a connection to the father that was significant for the court decision.
What if Ms. Block was involved in the alleged kidnapping?
If it were the case that the mother was in some way the initiator of bringing the children back and violence was used in the process, which could have burdened or traumatized the children, then in my view this approach by the mother is acceptable most likely part of the court’s considerations and the subject of the hearing. The mother could have violated her own custody obligations because she may not have sufficiently taken the child’s interests into account. This could be supportive for the father.
In August 2021, the children were visiting their father and were supposed to return to their mother in Hamburg. But that didn’t happen. According to German decisions, the right to determine where to stay lies with Christina Block. Why couldn’t she enforce this title?
The so-called Brussels IIb Regulation currently applies. According to this European regulation, decisions made by one member state regarding custody or visitation rights must be recognized in all other member states. This is automatic. Such decisions are also enforceable in another Member State. The problem is that Denmark has not acceded to the regulation and is therefore not considered a member state. A decision from Germany is therefore not recognized in Denmark and is therefore not enforceable. As a result, the right of residence that Ms. Block obtained in Germany is only a blunt sword due to the residence of the child’s father and the children in Denmark.
Marko Oldenburger is a specialist lawyer in family law and an academic author of specialist articles on family law. : Image: private
A Danish court had rejected the mother’s request to send the children back to Hamburg. In view of the fact that they have now remained in Denmark for a long time, it can be assumed that there is now a “serious risk to the physical and mental health of the children”.
The Hague Child Abduction Convention says that if a parent takes a child to another country without the consent of the other parent or fails to return the child from a holiday contrary to plan, the parent can apply for the children’s repatriation at the original place of residence. Denmark has also signed this agreement. Accordingly, repatriation should generally take place within six weeks of submitting the application. If it does not occur within one year, then special determinations must be made. It can be assumed that the children will then already be integrated into the new country and life. Regardless of this, a return application can be rejected if it would pose a serious risk of physical or mental harm to the child. The Danish court obviously accepted this.
Published/Updated: Recommendations: 6 Julian Staib, Hamburg Published/Updated: Recommendations: 26 Published/Updated: Recommendations: 10
What influence does the will of the children have on such legal decisions?
It hardly plays a role. The Hague Child Abduction Convention is based on the assumption that an immediate return of the child is in principle best suited to the child’s best interests because the continuity of living conditions is maintained. Accordingly, the case should be resolved in the state where the parent from whom the children were unlawfully removed or withheld lives. If the child has been returned, he or she should of course be allowed to express his or her interests in the custody proceedings that regularly follow, if necessary with the help of legal counsel.
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