December 3, 2023
Can the person entitled to contact spend their holidays with their children in a place where a terrorist attack was carried out a few days earlier? Yes, he may. The court goes even further and sentenced a mother who sabotages the vacation to compensation.
that Court of Appeal in Berlin had decided on 22.06.2017 - Ref.: 13 WF 97/17 with some basic questions of vacation management busy.
The parents divorced in 2014. In divorce proceedings, the father's dealings with his two children were regulated. Among other things, the contact regime provided for the father to be dealt with in even calendar years during the last 3 weeks of summer vacation. After consultation with the mother, the father booked a joint vacation trip for himself and his children to a bathing resort in... Beach near Pattaya/Thailand.
After there were a total of four bomb attacks at various locations in Thailand on 11/12 August 2016, a few days before the planned departure, the mother withdrew her consent to the vacation trip and applied to the court for a preliminary injunction with the aim of prohibiting the father from spending the children outside German borders. Police at the airport should also be instructed to prevent children from leaving Germany.
The responsible family judge then listened to the mother. During the hearing, the judge told the mother that there was no travel warning from the Foreign Office for Thailand even after the bombings. In view of the global terrorist threat, she considered that the fact that there were bomb explosions in Thailand on 11/12 August 2016 was not such an acute risk to the welfare of the child that the issuance of a preliminary injunction without first giving the father the opportunity to comment was not justified.
The mother then contacted the federal police at the airport and succeeded in refusing the father and the children to leave Germany.
The father then applied for an administrative fine to be imposed on the mother for a violation of the contact regime because of the report to the Federal Police, which finally prevented him from leaving the country with the children.
The family court then imposes an administrative fine of 500€ on the mother.
In its review process, the Higher Regional Court then clarified a number of controversial issues:
It is the responsibility of the person entitled to contact to determine the place of contact. Something else only applies if, for example, the holiday is to take place in a place where it is dangerous for the children. As far as dangerousness is concerned, the courts are guided by the travel warnings issued by the Federal Foreign Office. For example, a holiday trip to Syria would certainly not be possible at the moment without the consent of the other parent. But even dangerous areas can be a valid holiday destination, provided there are valid reasons for doing so (e.g. country of origin, all relatives live there, etc.)
The KG states literally:
“The parents' contact agreement did not require any regulation of the place where the (vacation) contact was to be spent. In particular, it was not necessary to specify beforehand that the father was entitled to travel with the children to Thailand for the part of the summer vacation due to him. For it has always been a very general view in case law that the place where the contact is to take place is determined by the person entitled to contact: The parent who exercises the right of access and has the child visiting also determines the child's whereabouts without the need for a separate court statement. In principle, this remains the case even when it comes to choosing the location for the holiday, regardless of where the location is located. It was therefore up to the father alone to determine the place where the interaction should take place. He has fulfilled his duty to inform his mother in good time where the trip should go and where the children will be staying; the mother actually agreed to the trip originally. ”
The KG filed another lawsuit to withdraw the mother's consent for the trip to Thailand:
“Whether a child embarks on a long-distance vacation trip as part of the agreed approach, is regularly an everyday decision that does not require approval against the background of the population's changing understanding of vacation.” Something else only applies if the “vacation trip is intended to lead to a political crisis area or if there are travel warnings from the Federal Foreign Office for the holiday destination.”
The duty of conduct is a special duty of loyalty under family law. It obliges both parents not to disturb the relationship of the child with the other parent and to refrain from anything that impairs the relationship or makes education difficult.
The KG makes it clear literally as follows that the duty of conduct always applies and does not have to be explicitly regulated in a contact arrangement:
“According to the law, parents have a duty of good conduct; in the interest of the child's best interests, they must promote contact with the other parent and refrain from anything that makes dealings difficult (Sections 1684 para. 2, 1626 para. 3 sentence 1 BGB and Palandt/Götz, BGB [76th ed. 2017], § 1684 paragraph 5). As is apparent from Section 1684 (2) BGB, but also from Section 1626 (3) BGB, the duty of conduct is, by law, an integral part of every contact arrangement; there was therefore no need for a separate mention of this duty of conduct in the contact agreement or the court order of March 31, 2014 approving the parental agreement. ”
Both the Family Court and the Court of Appeal saw the fact that the mother turned to the Federal Police with a request to prevent departure as a violation of the contact regime.
The court did not accept the mother's arguments that the conduct of the Federal Police was conduct led by her own discretion and was not attributable to her.
The mother's advice that she was unable to recognize that she had violated the contact agreement also did not apply to the Higher Regional Court. Rather, the Higher Regional Court even stated in quite clear terms that, following the hearing discussion on the originally requested interim injunction and the clear instructions from the family judge, it was established that the mother knew that the father was allowed to go to Thailand and that she could not prevent this by unfair methods.
