Family life in contexts of human mobility: families at a distance; protection of unity, non-separation and family reunification in migration and / or asylum-refuge contexts

In 1980, the Hague Child Abduction Convention was agreed with the aim of protecting children from the adverse consequences of being wrongfully removed or retained in another contracting state. In 1997 - during ongoing divorce and custody proceedings - complainant in 1)’s wife unlawfully left the Federal Republic of Germany with their joint children and travelled to France. A return of the children under the Hague Child Abduction Convention was rejected by the competent French courts in the first and second instances. On 28 March 1998, the father had the children brought back to his residence in Germany from France by authorized persons using force against the mother. The constitutional complaint challenges the decision made by the higher regional court ordering the return of the children to the mother as complainants in 2) and 3). 
The FCC held that under German constitutional law, the best interests of the child are the decisive aspect in the assessment of conflicts of interest between parents and children and of the obligations of the state arising from the duty to protect under Article 6.2.2 of the Basic Law. The Hague Child Abduction Convention is similarly directed towards the best interests of the child. In order to preserve the continuity of living conditions, immediate return is in principle required if such return would not exceptionally place the child in an unreasonable situation or meet with considerable resistance. 
In the case of conflicting applications for return, the best interests of the child and compliance with procedural requirements must be examined in particular.
By not taking sufficient account in the present case of the fact that at the time of its decision on the mother's application an appeal in cassation by the father before the Cour de Cassation and therefore a renewed return to Germany could not be ruled out, the higher regional court violated the rights of the children under Article 6.II.2 of the Basic Law and Article 2.I of the Basic Law. The purpose of perpetuating the residence until the custody decision is reached is defeated in the case of such a return unless special circumstances justify a return despite the existing danger of a further change of place. 
The violation against the best interests of the child also constituted a violation of the parental rights of the complainant in 1) under Article 6.II.1 of the Basic Law.