* [The German Constitutional Court Decision is reproduced from the unofficial English translation provided by the U.S. Department of State. The Memorandum is reproduced from the English text provided by the Hague Conference on Private International Law. The Introductory Note was prepared for International Legal Materials by Adair Dyer, Deputy Secretary General of the Hague Conference on Private International Law.

[The Hague Convention on the Civil Aspects of International Child Abduction, dated October 25, 1980, appears at 19 I.L.M. 1501 (1980); the Overall Conclusions of the Special Commission of October 1989 on the Operation of the Hague Convention appear at 29 I.L.M. 219 (1990); the Report of the Second Special Commission Meeting of January 18-21, 1993 to Review the Operation of the Hague Convention appears at 33 I.L.M. 225 (1994); the Inter-American Convention on the International Return of Children appears at 29 I.L.M. 63 (1990); and the decision in Thompson v. Thompson, the 1994 Canadian Supreme Court decision on international child abduction, appears at 34 I.L.M. 1159(1995).]

1 See, for a discussion of the compatibility of the Convention with Article 16. paragraph 2, of the Basic Law of the Federal Republic of Germany: M. Jorztk. Das neuezivilrechtlicheKindesentfiihrungsrechiSchTiftcn zum deutschen und europaischen Zivik Handels- und Prozessrecht. Band 154) Verlag Ernst und Werner Gieseking, Bielefeld 1995. pages 125-142, especially pages 141-142 and page 243, No 3.

2 European Treaty Series, No 105. signed at Luxembourg on 20 May 1980.

3 Signed at Montevideo on 15 July 1989.

4 C. v. C. [1989] 2 All England Law Reports 465, [1989] 1 Weekly Law Reports 654, 661 (Court of Appeal, 13, 14 December 1988); case note by M.P. Kindall published in American Journal of International Law, Vol. 83, No 3, July 1989, p. 586.

5 Friedrichi. Friedrich. 10 January 1992, United States District Court. Southern District of Ohio, Western District.

6 Friedrich v. Friedrich, 12 January 1993. United States Court of Appeals for the Sixth Circuit, published at 983 F.2d 1396.

7 The court noted: German law applies to determine [the father ‘sj custody rights because it is the law of the case that at the time of [the child's] removal from Germany, his “habitual residence” was Germany. 983 F.2d at 1402. (page 2 of typescript opinion).

8 Typescript opinion, pages 7-8. The legislation implementing the Hague Convention in the United States (Title 42, US Code, Section 11603), specifies that the person opposing the child's return must establish an exception under Article 13( 1)(b)“by clear and convincing evidence”. This is the highest standard of proof employed in civil cases in the United States.

9 Friedrichv. Friedrich, on remand 28 April 1994, United States District Court. Southern District of Ohio. Western District, typescript opinion page 11.

10 Fauser v Fauser. Superior Court of the State of California in and for the County of San Luis Obispo, docket no. HC 3230.

11 Preliminary Document No 2 of November 1992 for the attention of the Special Commission of January 1993, “Summaries of German Decisions on the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction”.

12 Translation into English of terms from the German Grundgeseizas these are set out in Bernd Rüster (general editor). Business Transactions in Germany (four volumes, looseleaf 19951. Appendix 1.

13 All quoted language here has been taken from the English translation of the decision furnished by the Canadian federal Central Authority.

14 The court cited in this connection Jörg Pirrung in J. von Staudingers Kommentar zum BürgertichenGezetzbuck, 13th Edition. 1994, Dieter Henrich, Jan Kropholler and Jörg Pirrung, Berlin. 1994. paragraph 683, p. 272.

15 The Supreme Court here makes reference to the decision of the Amtsgerichr Darmstadt of 22 July 1993 in FamRZ 1994. p. 184 and J. Pirrung in Staudingers Kommentar. cited above, paragraph 683. p. 272.

16 The opinion of the Court was signed by all nine judges, but two of these judges filed a dissenting opinion in which they noted certain formal defects in the application sent by the Canadian Central Authority, found that the father had not offered due proof that the mother's retention of the child was wrongful under the Canadian legislation in force at the time and found that the child would undergo a grave risk of psychological damage by being separated from her mother. Thus, these dissenting judges would have overturned the decisions of the two lower courts which had ordered return of the child. They would have applied the exception of Article 13, paragraph 1 b, of the Hague Convention to refuse return of the child to Canada. These two dissenting judges refer(in No 30) to a provision in Article 206 of the Argentine Civil Code, which states that in case of separation, children under five years of age are to be entrusted to the mother except for serious reasons affecting the interests of the child. Despite the opinion of these two dissenting judges that the provisions of Article 13, paragraph I b of the Hague Convention were met in this case and therefore could have been applied, these judges also apparently thought that, given the constitutional rank which the Argentine legislation had attributed to the CRC, its provisions on the best interests of the child could have been applied to override the Hague Convention if necessary. A third-dissenting judge, Mr Justice Lopez, stressed the factors which would go into a refusal to return under Article 13, 1 b of the Hague Convention, including the effects on the child of separation from the mother (paragraphs 13 and 14 of his opinion). Noting that more than a year and a half had passed since the child had been brought to Argentina and that the child during that time had integrated without difficulty into a kindergarten and spoke a clear Castilian Spanish, this judge expressed the opinion that even though the application for a return-had been presented within the time period specified in Article 12 of the Hague Convention, the time which had elapsed in litigation (trial at the first level, followed by two appeals pursued by the mother) should be taken into account for this purpose (paragraph 15 of his opinion). He would therefore have refused return under Article 13 of the Hague Convention (paragraph 17 of his opinion).

17 Typescript opinion, at pages 32-33.

18 Typescript opinion at pages 27-29.

19 Thomson v. Thomson. 50 R.F.L. 3rd 145, 18 October 1993.

20 Thomson v. Thomson, decided 26 January 1994, reasons for judgment delivered 20 October 1994: summary of judgment and note by Bertrand Ancel and Horatia Muir-Watt in Revue critique de droit international privé. 84(2) avril-juin 1995, p. 342.

21 Police Commissioner of South Australia v. Temple, 25 June 1993, Full Court of the Family Court of Australia at Adelaide, (1993) FLC, Section 92-424, summary in Australian Family Lawyer, Vol. 9, No 1, (September 1993), pp. 43-44.

22 C.v. C, note 4 above.

23 In the matter of the Child Abduction and Enforcement of Custody Orders Act 1991 and in the matter of R (a minor), 19 Dec. 1994, Supreme Court of Ireland; summary in The Irish Times, 20 March 1995, p. 16.

24 Hof den Haag, 31 March 1995 (NIPR 1995 afl. 2); see M. Sumampouw in Tijdschriftvoor Familie en Jeugdrecht, 17 aug. 1995, afl. 7, p. 161.

25 Hayward and Hayward, 12 April 1995, High Court of New Zealand, Wellington Registry.

26 Central District Court Buda, 30 May 1988. affirmed by the Court of the City of Budapest, 14 July 1988 (certified French translations from the Hungarian).

27 McOwan v. McOwan, 8 Dec. 1993, Family Court of Australia at Melbourne, (1994) FLC Section 92-451.

28 See Hof den Haag, 31 March 1995, op. cit. Note 24, above.

29 Revue critique de droit int privé. 84 (1) janv.-mars 1995, pp. 97-103 (note by Muir-Watt).