Family court of Vechta 05 May 1992 Docket No. 16250 - 12 F 304/91 HK H vs. H. WMHFN -1 The petition for return of the children to England is denied. Every party has to pay his/her own costs. The value at issue is set at 6.000,- DM. Reasons : The parties are husband and wife living separately. There are two children of the marriage living with the respondent (Wife). The British court entered its dccision of 19 August 1991 as follows: WMHFN -2 It is declared that the children were wrongfully removed from the jurisdiction of this court. It is hereby ordered that the respondent (Wife) has to return the aforementioned children within 14 days into the jurisdiction of this court. It is further ordered that the petitioner (father) is awarded joint custody of the children. Then the petitioner (father) filed with the Federal Attorney at the Federal Court for the return of the children to England. The children have been heard. The welfare officer has filed a report. There has been evidence taken whether the return of the children would result in grave danger of mental harm for the childen (Art. 13(b) of The Convention on the Civil Aspects of International Child Abduction, done at the Hague on 25 Oct 1980 [The Convention]) by a report of the Psychologist. There are not sufficient grounds to issue the order requested. The court saw no need to investigate further the question whether there really was a removal against the wishes of one parent within the meaning of Arts. 3 and 12 of The Convention, because according to the statements of the children and according to the facts as undisputed between the parties the question most pressing was whether "a return of the children resulted in grave danger of mental harm for the children", Art. 13(b) of The Convention, so that but for Art 13(b) the court would have been obliged to order the return of the children. The children have also declared unmistakenly when they were heard that they want to stay with their mother and that they don't want to return to Enland. This wish of the children is quite conceivable when considering that they have spent the major part of their life in Germany. Both speak German fluently for their age nothwithstanding the petitioner (father)'s testimony to the contrary. WMHFN -3 Because of the results of the hearing the court ordered a child psychologist's report as to the consequences of their return. The finding's in the expert's report is convincing and to which the court refers, that a return of the children would lead to the grave danger of mental harm for them. WMHFN -4 Accordingly the petition had to be denied. Contributed by: Dr. Donald J. Cramer Rechstsanwalt Bruderstrasse 2 8000 Munchen 22 Federal Republic of Germany -------------------- 1. All footnotes were written by William M. Hilton, CFLS 2. See Art 15 for the effect of this finding. 3. This would appear to be a case of first impression as to the language of the children being determinative as to their return when used in conjunction with the wishes of the children. Nothing is said about the age of the children. This decision appears to be contra to the great weight of decisions in other countries. 4. Perhaps the presentation of a Safe Harbour Order to the FRG court would have circumvented this decision. See SAFEHBR.ORD on the Hilton House BBS for typical language.