Information Note on the Court’s case-law No. 100
August-September 2007
Paradis and others v. Germany - 4065/04
Decision 4.9.2007 [Section V]
Article 5
Article 5-1
Deprivation of liberty
Coercive detention of a mother for failing to comply with a foreign court order requiring her to return the children of the family to the father: inadmissible
The first applicant, a German national, left her Canadian husband in 1997. A Canadian court granted her custody of the four children, but ordered her not to remove them from Canada without her husband’s consent. In the summer of 2000 she failed to return with the children from a two-week stay in Germany, where she petitioned for divorce and applied for custody. The Canadian court then granted her husband sole custody and a German court of appeal ordered the first applicant to return the children to her husband. Following her repeated refusals to comply with that order a German district court ordered her coercive detention in order to compel her to reveal the children’s whereabouts. The order stipulated that she should be released immediately the children had been returned. The first applicant’ appeal was rejected and the Federal Constitutional Court refused to admit her constitutional complaint. She was detained for a six-month period in 2003, but did not disclose the children’s whereabouts.
Inadmissible: (a) Order for detention: The Court had to examine whether the domestic authorities had struck a fair balance between the importance in a democratic society of securing compliance with a lawful order of a court and the importance of the first applicant’s right to liberty. One of the aims of the Hague Convention on the Civil Aspects of International Child Abduction was to secure the swift return of children to their country of habitual residence to prevent their growing accustomed to their illegal retention. In the instant case the children had already been separated from their father for almost two years when the court of appeal ordered their return and almost three years before the district court ordered the first applicant’s detention. It was therefore of the utmost importance not to further prolong their illegal retention. Although detention was the most drastic coercive measure available under domestic law, the first applicant was fiercely determined not to return the children, as evidenced by the fact that she had sent them into hiding abroad. In such circumstances, the district court’s finding that it would have been futile to impose a coercive payment was not unreasonable and the order for her coercive detention not disproportionate: manifestly ill-founded.
(b) Length of detention: The first applicant had been unable to show that the remedy suggested by the Government – an application under section 171 in conjunction with section 109 of the Execution of Sentences Act – would have been ineffectiveto lift or limit her detention: failure to exhaust domestic remedies.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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