ECA’s charter is to fight the irregularities it sees in child custody cases between Germany and other European countries, to defend the rights of children and to provide assistance and act as an intermediary where such rights are violated. The ECA team comprises experts with a wide range of skills including psychologists, psychiatrists, lawyers and journalists.

Kidnap
Frattali has first-hand experience of the difficulties foreign nationals can face in child custody cases involving the German courts.

In 2017 he and his German partner, both Swiss residents, had a daughter. When they separated, they agreed on joint custody. A few months later the mother had a passport issued for the child without Frattali’s knowledge and removed her to Germany. The Swiss authorities demanded the child be returned, Frattali brought a case of kidnap through the German courts, yet mother and child remain in Germany.

“But this is not just about my case,” says Frattali. “Each year tens of thousands of families find themselves in this situation.”

Family law
Frattali established ECA to drive for change and to help other parents avoid what he has experienced. He knows better than most that there is “no future” in employing legal action in the cases of child kidnap. He explains why.

“Although article 24 of the EU Charter of Fundamental Rights affirms that EU member states must take into account the rights of the child (such as their right to protection, care, freedom of expression and regular personal contact with both parents unless deemed contrary to their best interests), how these rights get applied through national family law is up to each country. When a German judge makes a ruling, they routinely limit or ignore the rights of the non-German parent. In the case where both parents are foreign, the person more closely connected to Germany will receive preferential treatment.

In Germany the courts are even authorised to amend custody decisions issued by family courts in other countries if they decide such action is in the best interests of the child.”

Jugendamt
Such decisions are heavily influenced and driven in Germany by the Jugendamt, the Youth Administration department. A municipal organisation, it was established to promote the well-being of children, in that the child’s well-being corresponds to their stay in Germany, to speak only German and to assimilate only German culture.

“But although it operates without government supervision, it enjoys astonishing powers,” says Frattali.

“According to German Law, the Jugendamt must be heard by family courts and has power over such matters as parents’ access to their children and the removal and placement of children with foster families. The Jugendamt may take children into care without prior consultation of a family court and there have been cases where the Jugendamt has refused to return children to their parents, even upon the order of the family court.”

The ECA has a specific goal focused on respecting the rights of children.

Lobbying for change
ECA has achieved positive results since its inception, notably getting children returned to parents or ensuring that custody is split between parents as determined by foreign (non-German) courts. But there is still much to be done, including lobbying in Brussels for much-needed reform.

In March, ECA will hold a meeting with the European Parliament in Strasbourg to discuss and highlight the issue. They have invited journalists and will also hold a press conference to spread the word.

But in the meantime, ECA will continue to assist foreign parents who find themselves caught in custody disputes.

“It is important to remember we are doing this for the children,” says Frattali. “As minors under the law they cannot defend themselves. So it is essential we do this for them.”

Anna Charles

For more information contact ECA’s head legal office:
Kanzlei Welten
+41 31 318 41 41
kanzleiwelten.com