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Germany: Regional Court Holds Foreign Adoption Decision Violated International Public Order

(Nov. 27, 2019) In a decision published on November 11, 2019, the Higher Regional Court of Frankfurt did not recognize an adoption decision of the High Court of Sierra Leone because, in the Court’s opinion, the decision violated international public order. The Court held that both parents need to be present at a foreign adoption hearing so that the foreign court can determine the best interest of the child. It also stated that such a mistake cannot be rectified in a domestic recognition proceeding because it is not a de novo hearing, but allowed an appeal to the Federal Court of Justice, the highest civil court, for a ruling on this particular question.

Applicable Law

The Act on the Effects of an Adoption of a Child Under Foreign Law regulates the recognition and validity of foreign adoption decisions concerning children under 18 years of age. Section 109 of the Act on Proceedings in Family Matters provides that a foreign judgment cannot be recognized when, among other reasons, “recognition of the judgment would lead to a result that is obviously incompatible with significant principles of German law, in particular when recognition is incompatible with fundamental rights.”

Facts of the Case

The applicants have been married since 2009. In 2016–17, the wife travelled to Sierra Leone, where she adopted a child. The child was born in 2016. Its mother had died the same year, and the biological father agreed that the child should be adopted and taken to Germany. On July 11, 2017, the High Court of Sierra Leone held an adoption hearing in which the wife, the child, and the biological father participated. The husband did not travel to Sierra Leone, but submitted documents regarding his financial situation, living situation, and health. The High Court approved the adoption request. On September 12, 2017, the applicants requested recognition of the foreign judgment from the family court in Frankfurt. The court denied the request, stating that recognizing the judgment would violate significant principles of German law. The applicants appealed the decision to the Higher Regional Court. (Higher Regional Court of Frankfurt paras. 1–12.)

Decision

The Higher Regional Court confirmed the decision of the lower court and held that the adoption decision of the High Court of Sierra Leone had violated international public order. It stated that, in the case of recognizing foreign judgments, the broader international public order standard must be applied instead of the German public order standard. It is therefore not relevant whether applying peremptory German law norms would yield a different result, but whether applying foreign law would result in a decision that would be in stark contradiction to the basic rationale of the German provisions and their ideas of justice, and therefore unacceptable from a German standpoint. In the case of adoptions, the decision must be based on the best interest of the child. (Para. 17.)

The Court opined that the decision of the High Court was not based on the best interest of the child. German procedural law requires that the adoption applicant be professionally evaluated. In the case at issue, the husband was not evaluated in person to determine his fitness as a parent. Instead, his fitness was based only on such criteria as financial situation, the absence of a criminal record, and good health. The Court stated that the determination must include factors like parenting skills, the willingness and ability of the parents to integrate a child from a foreign country into German society, support possibilities, social environment, and other aspects that are relevant for a personal relationship with a nonbiological child. Such a determination can be made only in a personal interview, which did not take place. (Para. 18.)

Lastly, the Court held that the determination could not be rectified in the current proceedings because a recognition proceeding is not a de novo adoption proceeding. The subject of the recognition proceeding is the result of the application of foreign law. However, if the result of the foreign proceeding violates international public order, it cannot be rectified in the recognition proceeding. Instead, a de novo adoption proceeding must occur. In the case at issue, a new application has been filed with the family court in Frankfurt. The Court stated further that it is in the interest of all potentially affected children that international adoptions adhere to the rule of law and are based on the best interest of the child. (Paras. 19, 20.)

The Court allowed an appeal to the Federal Court of Justice for a ruling on the question of whether determining the best interest of the child could be done as part of a recognition of a foreign judgment proceeding. (Para. 25.)