German case law on the 1996 Hague Child Protection Convention

After a brief introduction to the legal framework for child protection in Germany, this article examines the application of the 1996 Hague Child Protection Convention in German case law – primarily by family courts, but also by administrative courts and the Federal Constitutional Court. Several legal issues and case groups of particular relevance have emerged. These include questions of the Convention’s applicability, especially in relation to the Brussels IIa/b Regulations. For instance, German courts have addressed the effects of the differences between the Convention and the Regulations regarding the principle of perpetuatio fori. Another key aspect concerns the Convention’s concept of habitual residence. A detailed definition has developed in German case law, which has subsequently been applied across a wide range of contexts. German courts have made use of the Convention’s rules on jurisdiction and on recognition and enforcement, although, in this respect, Brussels IIa/b largely takes precedence in intra-European Union contexts. Therefore, the central rules proved to be Articles 15ff on applicable law in cases involving parental responsibility with cross-border implications, including international child abduction. One numerically significant area of application is the suspension of parental custody and the appointment of guardians for unaccompanied minor refugees. Overall, the 1996 Hague Child Protection Convention has proven to be a flexible and increasingly relevant instrument in German judicial practice.