Demande d'explications écrites des autorités compétentes

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Discussion from the document

The following points are drawn from the email thread underlying the PDF « Demande d'explications écrites des autorités compétentes » (reply dated March 2026), addressed to the French Central Authority (BESNARD Maud, cc POULARD Morgane) in the context of the child’s abduction and displacement to Germany.

Administrative refusal (Article 27) vs judicial refusal (Article 13)

The discussion asks whether the German Central Authority’s refusal is an administrative refusal (Article 27 — decided by the Central Authority before any court is seised) or a judicial refusal (Article 13 — decided by a court, e.g. grave risk, child’s integration, child’s objection). The father had shown that the German Central Authority could not base its position on Norwegian law prevailing over French law. He also questioned under what legal “pretext” Norwegian law would prevail over French law in that context.

Competence and limits of the Central Authority (Article 27)

Under Article 27 of the Hague Convention of 25 October 1980, the Central Authority may refuse to accept or transmit a return request only when it is manifest that the conditions for the Convention’s application are not met or that the request is manifestly unfounded. This power is strictly limited and exceptional. The Central Authority has no jurisdictional competence and no power to rule on the merits of the parental situation; it cannot rule on the existence or scope of parental authority, nor on the exceptions under Article 13. Those matters are for the courts.

Unless the Convention is manifestly inapplicable (e.g. child over 16, no contracting State concerned, manifest absence of custody rights within the meaning of the Convention), the Central Authority must transmit the request to the competent judicial authority. A refusal based on a substantive assessment of parental rights or an in-depth analysis of the facts would exceed its powers and amount to a breach of Article 27.

Source: Hague Convention of 25 October 1980, Article 27; HCCH.

Meaning of “manifest” (Article 27)

The term “manifest” means: obvious, indisputable, without complex analysis. Examples of manifest absence of rights include: a final court decision has removed all parental authority; the parent never recognized the child and no rights are attributed; the applicable law confers no decision-making power; the parent has only a right of access with no right to oppose a change of residence.

By contrast, there is no manifest absence when: there is a legal dispute; the applicable law is debated; parental authority is joint; no judgment has removed the parent’s rights. In those cases, the Central Authority cannot refuse: only a court may decide.

Habitual residence and re-assessment by Germany

The discussion states that evidence that the child resided with the father in France remains available; that Norway’s refusal of return does not confirm that the child did not reside in France with the father; that Norway considered the mother to be “on a trip” but the child legally resided with the father; and that Norway conflated the mother’s and the child’s residence, to the detriment of the child’s welfare. The French Central Authority had previously corrected an affirmation that a Norwegian judgment established the mother’s exclusive parental authority, which was not accurate.

Habitual residence must now be re-assessed by Germany in the light of all the evidence and its own rules, without being bound by Norway’s decision. Return requests do not constitute a judgment on custody or residence.

The Convention does not create a judgment

The Hague Convention of 25 October 1980 aims to secure the prompt return of a wrongfully removed or retained child, but the return request itself is not a judgment and does not determine the merits of custody or residence rights. Article 8 allows the person claiming wrongful removal to apply to the Central Authority or a court for return; Article 12 imposes an obligation to order return, but that results from a court decision, not from the request alone; Article 19 clarifies that a return decision does not amount to a judgment on custody or parental rights — it aims to restore the situation of habitual residence.

Source: Hague Convention of 25 October 1980, Articles 8, 12, 19; HCCH.

Burden of proof and parental authority

The father does not have to prove that he exercises joint parental authority; it is for the mother to show that his parental authority was removed. He had provided evidence of joint parental authority, which other countries take into account; the matter must be brought before their courts. He had also transmitted elements of Norwegian law showing that he resided in Norway at the time of the child’s birth with the mother, that he recognized the child, and that the mother could not register the child with exclusive parental responsibility without his consent.

Norway and Germany: registration, complaints, duty to locate

The Norwegian authorities’ last reply (referenced in the document) reportedly confirmed that the child is not registered in Norway and that parental responsibility depends on the country where the child resides — thus no longer Norway. The father had lodged complaints (e.g. to the Norwegian national population register) and had requested the Norwegian courts to rule on parental responsibility; they had never challenged his custody rights. Similar requests were transmitted to the German courts (e.g. TGI Nanterre / Frankfurt).

According to the discussion, the child was not registered in Germany by the mother (e.g. Frankfurt registry). The father asked where the child actually lives and why the Central Authorities, which have a duty to locate the child, have always refused to do so, and requested written explanations from the competent authorities.

Conclusion and international case law

The conclusion in the document is that there is no manifest absence of custody rights within the meaning of the Convention. The discussion also cites international case law supporting a broad interpretation of “rights of custody”: e.g. Abbott v. Abbott (US Supreme Court, 2010) — ne exeat right as a right of custody; Re D (A Child) (Abduction: Rights of Custody) (House of Lords) — autonomous international interpretation of “rights of custody”; C-400/10 PPU McB. (CJEU) — custody includes the right to decide the place of residence, to be determined under the law of the State of residence.

Source: discussion in PDF (ca/). HTML: FR, EN.

Document and related links

• Primary source: PDF Gmail – Demande d'explications écrites… (in ca/). HTML: FR, EN.
• Related: Reaching Central Authorities — timeline, legal grounds, contacts (France, Norway, Germany).
• Convention: Hague Convention of 25 October 1980 (HCCH).