GREECE – MEREDITH – 1996(Return denied) (Exception for return under article 12) MEREDITH v BASDARAS. Father removes the children from Alaska, USA to Greece. This was involution of a court order not to remove the children from Alaska. The mother applies for their return. (After two years) The Greek court, when looking at settled in, ruled that to remove them from their father will create “bitterness and psychological wounds” the children were not returned.
Meredith v Basdaras (Greece 1996)Court of First Instance of Thessaloniki
Nos 13601, 10582, 11908, 12942
4 International Abduction [GRC 1996]
===========================================================
No 13601/1996
10582/22 Mar 1996
11908/03 Apr 1996
12942/23 Apr 1996
THE COURT OF FIRST INSTANCE OF THESSALONIKI
SAFETY MEASURES PROCEDURE
Judge: Hon Vasilios Frangos, President of the Court of
First Instance, appointed by the President of the
Three-Members Council of the Court of First Instance.
Clerk: Was not appointed
PUBLIC SESSION: of 26 Apr 1996
THE PETITIONER (1st & 2nd petition) Against him the PETITION
(3rd petition): Grigorios Basdaras, son of George, resident
of Perea, appearing with his attorneys:
Mrs. Georgia Karasavidou-Simopoulou (Reg No. 1027)
Mr. Efthymios Kaikopulos (Reg. No. 822)
THE PETITION AGAINST (1st and 2nd petitions): LIZBETH ANNE
MEREDITH, ex wife of Grigorios Basdaras, residing in
Anchorage, Alaska, USA, and presently temporarily residing
in Athens, appearing with her attorneys:
Mr. Panagiotis Papazissio (Reg. No 876)
Michael Papazzicois, practicing in Athens (Reg. No 9138)
001 THEY REQUEST (3rd petition): The Greek State being
represented by the Minister of Finance, resident of Athens,
acting at present with the capacity of Central Authority
(Ministry of Justice) according to the prescriptions of The
Convention on the Civil Aspects of International Child
Abduction, done at the Hague on 25 Oct 1980 [The Convention]
“pursuing civil issues of the International Children’s
Kidnapping”, which was duly confirmed by the Law 2102/1992
(Gov.Gaz.A.193) and as a representative of a U.S.A. citizen,
Lizabeth Anne Meredith, of Anchorage, Alaska, USA,
temporarily residing in Athens appearing with her
representative of the court, Mr. Demetrios Kamaris.
PETITION DATE: Filed 0n 20 Mar 1996 and 22 Apr 1996
correspondingly.
Filing numbers of Petitions: 10582/22 Mar 1996; 11908/03
Apr 1996 and 13942/23 Apr 1996.
MAIN ISSUE OF TRIAL: Status regulation. (Settlement).
The discussion took place in public session in open Court.
THE COURT HAVING CONSIDERED THE FILE, HAVING THOUGHT
ACCORDING TO THE LAW
WHEREAS, petitions No. 10582/96, 11908/96 and 13942/96 must
be jointly tried due to evident relation between them, and
for time and charge saving.
I
002 By the combination of the requirements of articles
1510, C.C., 17 1, 592 1, 612, 614 1 and 622 1 C.C.P., as
they are in force, it is found that the Greek Courts have
the international jurisdiction to judge disputes which come
from the parental custody of minor children, provided that
one of the parents is a Greek citizen and that when the
circumstances are changed, the Greek Courts have
international jurisdiction to try the disputes for
modification of a decision ordered by any other foreign
Court which has settled parental custody and which decision
has been declared legally enforceable in Greece. (A.P.
1601/86 No. D 35 1047 EA 7459 ARM.M2 833).
003 Further, according to the article 1536 of the Civil
Code, as it is in force after its amendment by Law 1329/83,
if, since the issue of the decision relevant to the parental
custody, the circumstances have been changed, the Court is
obliged upon the request of one or both parents, nearest
relatives of the child, or the District Attorney’s, to adapt
its decision into the new circumstances, revoking or
rearranging it according to the children’s benefit (EA
2340/86 Cr. Judge. 27 1142). Finally, the article 682 1
Civil Procedure, which orders that “The Courts in urgent
cases or in order to avoid any danger, may order safety
measures for the security or maintenance of a right or
settlement (regulation) of a state (situation)” it is
clearly proved that for taking the requested safety measure,
it must be very imperative case of necessity of avoiding an
imminent danger and to exist the probability of a right. As
an urgent situation or case is thought that case which
required and exceptional regulation by a court intervention
due to the fact of a fast dissolution of the dispute, in
order to avoid, in case of a delay, an imperative existing
risk, if the hanging danger is immediate. (P. Thessaloniki
802/80 ARCH.L.AB.87, First Inst. of Athens 14888/87
No.H.36.1254 Tzifra Safety measurements in EEN 1969, 1785).
In the present case in the petition No. 10582/96, as it was
mutually completed, the petitioner Greek citizen is stating
that from this marriage with the other party which was
performed in Anchorage of Alaska, USA, they have two
daughters: Marianthi-Cassandra and Meredith-Eleni, already
minor. And that their marriage was dissolved in the year
1991 by a Decree of the Court of Alaska, and that the legal
custody of the children was given to both parents. That,
after the decision which was issued later, the legal custody
(parental custody according to the Greek State) was given to
her. That by virtue of No 4842/94 decree of the Court of
First Instance of Athens, it was recognized that both the
above decrees are in force of a final judgment also in
Greece. Further he is stating that at beginning of the year
1994, he came along with his minor children in Greece where
settled in. That, these children have been adjusted at this
environment as he is stating with details. That his ex-wife
(against of who are the two petitions) persisting in the two
decrees of the foreign Court, wants to take the children
(minor children) in Alaska. He is demanding due to urgent
fact and the circumstances changing, to temporarily receive
the parental custody. In his second petition, he is
stating, more than those mentioned in the first one, that by
virtue of No. 10582/96 temporary order of the Hon. Judge of
the Court of First Instance of Thessaloniki, which was drawn
according to the first petition, it was forbidden to the
mother temporarily, to take away the minor children from the
house in which they were residing in Perea of Thessaloniki,
from the Elementary School, where they are attending, up to
the issuance of the decision of the first petition. That,
she, despite the above prohibition for which she was duly
notified, proceeded to the act of taking away the children
who are admitted as guests at the Consulate of the U.S.A.
here, with the purpose to drive them abroad. He requests to
be permitted to him to communicate even for a little time
with his minor children. The petitions with these grounds
and prayers, are legal and lawful. They are grounded on the
prescriptions of the articles 1510, 1512, 1513, 1536, 1520
1 C.C. as they are in force after their amendment by the
Law 1329/83, which are applied here as per the last common
citizenship and last common usual residence of father and
children (18 Pa. 1 and 2 CC) 731, 735 C.C. Procedure, as the
last is in force after its amendment by the above law
(1329/83) and the Greek Courts do have international
jurisdiction according to the once mentioned in the first
part of major thought, since the petitioner is a Creek
citizen, and the Court is absolutely competent as per the
locality of the execution of the decree (17 & 68 1 and 3
C.C.P.). Consequently those which are opposed by the mother
about the insufficiency of international jurisdiction of the
Greek Courts and as per the locality of competency of this
Court, because she does not have a residence in Greece, must
be rejected as our of grounds. After that, the petitions
must be examined from the main issue during the present
procedure of the safety Measures.
II
004 In No 13942/96 petition, the Greek State, legally
represented, acting in the present case according to the
prescriptions of the International Convention of Hague of 25
Oct 1980. Per the civil issues of the international
children’s kidnapping, which was duly certified by the Law
2102/92 and has increased typical force according to the
article 28 1 of the Greek Constitution, on account of the
USA citizen: Lizabeth Ann Meredith, after reporting with
details all those are stated in the first petitions about
the marriage and divorce of both parties, granting the
parental custody exclusively to the mother, and further
states that the father on 13 Mar 1994, under the excuse that
he wishes to communicate with his children, he took them and
brought them in Greece without permission, settling in
Thessaloniki, permanently, violating thus the above
decisions of the Court of Alaska, and he keeps them
illegally. She requests, that the father should give back
to her, their children. And this petition is lawful. It is
grounded to the prescriptions of the Articles 1, 2, 3 and
the articles 3 and 12 of the Law 2102/92, and it is
competently entered before this Court, during the present
appropriate procedure of safety measures (see article 11 11
2102/92 in combination to 3 2 Int. NKCP and 696
cp.K.C.P.) Therefore it must be examined from the main
issue along with the first two petitions.
005 According to the article 12 L.2102/92, in case a child
was transferred or kept illegally within the meaning of the
article 3, and from the time of his transfer to the time of
the petition filing before the Judicial or Administrative
authority of the contracting state, where the child is
staying, a time period less than one year has passed, the
competent (undertaking) authority orders the direct return
of the child.
006 Even if the Court authority which undertook the case
after the termination of the period of one year, provided in
the previous paragraph, is obliged as well to order the
return of the child, unless the child has already been
adjusted to his new environment.
007 In case the court or administrative authority of the
State to which is addressed the petition, has reasons to
believe that the child has been transferred to another
country, may postpone the procedure or reject the petition
of returning the child. According to the prescriptions of
Article 13 of same law.
008 Despite the prescriptions of the previous article, the
court or administrative authority of the country to which
the petition is placed, is no engaged to order the returning
of the child since the physical or legal person or
organization which is opposing to the returning of the child
proves:
a) That the physical or legal person or organization which
had the care of the child was not exercising substantially
the right of custody during the time of transferring or
unlawful keeping or it had consented to the transferring or
keeping, or it had given its approval afterwards.
b) That there exists a very serious danger, the returning
of the child to dispose it to a mental or physical hardship
or by any other way to derive it to an unbearable condition.
009 The court or administrative authority may also deny to
order the returning of the child, if it finds out that the
child does not want to return and has already the age and
maturity which they dictate to a consider the child’s
opinion.
010 As for the estimation of circumstances mentioned in
this article, the court or administrative authorities should
and must consider the records (information) as per the
social state of the child which are coming from the central
authority or other competent service-agency of the country
of th child’s usual residence. Besides with the meaning of
the prescriptions of the article 1511 C.C., as it already is
in force, when the court is called to decide with regard to
the granting of the parental custody of a minor child to one
of the parents, must have as exclusive guide of its court
judgment, the benefit and only the benefit of the child
without any other factor which may influence the decision
taking from those different ones, beyond the sex, basic
factors which accompany the person of each one of the
parents, like race, language, religion, social background,
financial state, etc. (Law 1968/88 No B 371044 EA 1002/91
Cr.J.34,1624).
011 In the present case, according to the witnesses’
testimonies, in open court, witnesses of both parties (to
wit: Christos Papaohristos – James Gordon) the documents
which are filed, some of them are mentioned below, the
personal communication with the minor children, the
allegations of both parties which were stated in words and
written in their minutes by the attorneys and from all in
general the whole procedure, the following have been
presented as probable:
012 Both parties have been legally married on 23 Nov 1985
at Anchorage of Alaska, USA, having the bride become
Christian Orthodox, before the marriage. From this
marriage, they had two daughters, to wit: Marianthi –
Cassandra and Meredith – Eleni, who were born there
(Anchorage) of 30 Jul 1987 and 18 Apr 1989 accordingly. The
marriage of both parties was irrevocably dissolved by No
3AN/90/4991/CIVIL/14 Aug 1991 Decree of the Superior Court
of the State of Alaska, USA. With the same decree the legal
custody (parental custody according to Greek law) of the
above children, was granted to both parents, while the
physical custody (custody in Greek law) was given to the
minors’ mother, at the same time, the time and terms of
communication (visiting) of the minors with their father,
was duly settled. On 13 Mar 1994 their father, pretending
communication with his children, took them away, violating
the terms of the settlement, on the basis of which their
taking away from Alaska, was forbidden, without mother’s
consent, and he left for Greece, where they settled in. The
mother, after the children had disappeared, proceeded to
various actions in order to find them.
013 First, she request that the legal custody be granted
to her. On the petition No. 3AN/90/4991 Civil 01 Apr 94
decision of the above Court was issued, by which the first
decision was amended and the legal custody was granted
exclusively to the mother. She made notification for this
missing to the National Center for Missing and Exploited
Children, (see attached translation into the Greek of the
above association) and she passed to the Central Authority
of the Greek State (Ministry of Justice), and at the same
time she published to a newspaper of Anchorage, their
missing.
014 The father, when he arrived in Greece, for a period of
some time which as not proved, he resided in Oreokastron of
Thessaloniki. The minor children, now 9 and 7 years old,
correspondingly, have both the Greek and the American
Citizenship, they speak the Greek language fluently, which
they have learned from their father while their stay in
Alaska, as well as the English language.
015 They have been registered in the Family Records of
Vlasti, Kozani, where their father is coming from. They are
two cute little creatures, mature for their age, very
intelligent and very polite.
016 The children, during the school year 1994-1995
(September 1994 to Jun 1995) attended, Marianthi the first
grade at the public Elementary School of Oreokastron, from
where she finished the 1st grade and was promoted to the
second grade, while Meredith the kindergarten school (see
attached title of progress of the 2nd Public Elementary
School of Oreokastron, and “Souvenir” of the Kindergarten of
Oreokastron).
017 Presently, they are residing (father and children) in
Perea, a costal suburb of Thessaloniki, and during the
current school year, the first is attending lessons of the
second grade while the second one, is attending the first
grade of the Elementary School. They are registered in the
First Public Elementary School of Perea, with student’s
record No 1306 and 1305 correspondingly, with full data of
their identity and without change their last name, as
groundlessly invokes the mother (see No. 70/ 01 Apr 94
certificate of school record of the above School with the
complete identification data of the minors).
018 Their progress was outstanding, and their attitude and
relations toward the teachers and classmates, are excellent.
They participate with success to the school working groups.
They speak always with very good words for their father and
they expressed their last wish and desire to remain in
Greece near their father, of whom they are especially found
and who is taking care with the best manner (see school
record and comments by the school teachers from their
grades). They are very healthy and sound and they do not
show any mental disturb during the period of the last two
years (See Medical record by Dr. Ioannig Helivatis,
Pediatrician from 19 Feb 1996). The children have been
fully adjusted to the environment in which they are living
during the last two years, they are extremely happy
enthusiastic because they are stay here, they have good
friends, and a warm social and family environment, their
father takes care of them who loves them extremely with a
special affection and love and who takes care of everything
in order not to miss even a small thing, with the help of
his mother with whom they live together, she is 67 years
old, sound and healthy and very full of energy.
019 The Children are expressing themselves with the best
words for their father and their grandmother and they do not
want to leave them. They love both parents, even though
however they have lived with their mother 25 days before the
communication with her, they keep a special mental (heart)
bond with their father.
020 On 02 Apr 1996 the mother, executing the decisions of
the Foreign Court, which were declared enforceable in Greece
by No 4842/94 Decree of the Court of First Instance of
Athens, she went to Perea in order to remove the children
from the father. The father, presented to the Court Bailiff
who was appointed to serve this act, in photostatic copy,
the first petition and the order written below it No.
10582/96 temporary order, by which the transfer of the
children from their residence in Perea, was forbidden, and
ordered the continuation of their attendance to the Public
Elementary School of Perea, until the issuance of a decision
on the petition. The mother, even though was informed about
this order (See No. 290/02 Apr 1996 report of children’s
violent removal by the Court Bailiff, Ioannis M. Mouratidis,
Court of First Instance of Thessaloniki), took away the
children and brought them to the United States Consulate in
Thessaloniki. Later she brought them to Athens, with the
purpose to leave with them for Alaska, despite the above
mentioned forbidden order. On 03 Apr 1996, at the Airport
“ELLINIKON” the mother was impeded to leave with the
children aboard, since in the meantime the supplementary
forbidding order has been issued, below the second petition
of the father. Finally, the children, after deliberations
and interventions by third persons, are remaining in Athens
under the custody of the mother.
021 Further, the following have been presumed, which are
related to the granting of the parental custody, to one of
the parents.
022 The father is 43 years old, he is working as a Hotel
Business Executive Councellor at “MAKEDONIA PALLACE HOTEL”,
which is one of the two best in Thessaloniki. His income is
very sufficient so that it offers to him and his children a
very comfortable living and breeding.
023 The father, during the term of the marriage, used to
show a special care and love and affection for their
children, educating them with the best manner, teaching them
at the same time both English and Greek languages.
024 At Anchorage, Alaska, he was working for about 10
years at the Hotel “Captain Cook”. The hotel executive is
expressing with the best comments about the father, who was
exceptionally punctual and responsible during his duties,
very skillful in his job, and they trusted him at their
homes without any reservation (see translation Greek Mr.
Helen Adwoo’s report of 21 Mar 1991).
025 Moreover, according to Mr. Alvin H. Fleetwood’s
certificate, who is the manager of the Commercial Chamber of
Anchorage, the father was completely attached with his
family.
026 He was always speaking with tenderness and love for
his family, with great pride for his daughters for whom he
is feeling a special love and wants what is best for their
benefit (see Greek translation dated 22 May 1991 of the
above certificate by the affiant).
027 The father accuses the mother of maltreatment of the
children. For this reason on 19 Dec 1991 he called in the
Children’s Clinic of Anchorage, for Meredith’s maltreatment
by the mother, who had the children the three previous days.
There at the hospital, it was found out that the child had
bruises at the right part of thigh (leg). It appears, on
examination, that it was caused mechanically (belt). The
child was very pleased with her father’s presence (see
attached translation in Greek of 19 Dec 1991 examination on
Meredith at the above Children’s hospital).
028 The father addressed to the Family and Youth Services
of Anchorage, and that Service after a through study,
addressed to the mother a document dated 15 Aug 1991 with
which suggests to her among others, to turn to the
Intervention Service (?) as one temporary relief from her
parental duties (see the above document in translation in
Greek).
029 The mother is 32 years old. During their marital
like, it was not presumed that she was working anywhere.
From 16 Nov 1992 she is working to AWAIC, of Anchorage.
030 It was not proved whether she had a family (parents,
sisters, brothers, etc.).
031 The mother states that the father was charged in
Anchorage for tax evasion and that he filed for bankruptcy,
that he did not pay the alimony etc., etc., however none of
those has been proved (no document was filed). Also, she
says that on the telephone he threatened her if she will be
intercepted in her children. (See attached in translation
affidavits hers and her friends). But, she does not charge
him at all about his treatment toward their children.
032 The father imputes the mother due to neurasthenic
crises, for maltreatment of children, thing which did not
prove (No document or medical certificate is filed).
033 The witness for the father, having his own knowledge
because he was living at Anchorage also, fully aware and
clearly, stated about the love, affection and good care
which the father offered to his children.
034 The witness for the mother, here attorney there, in
the present matter, stated for the father that he had a bad
behaviour (treatment) toward the mother, not paying the
alimony, etc.
035 From all the above stated, the Court rules considering
only the benefit of the children, that they should remain
near their father, since they are adjusted completely
already to the environment in which they are now living,
since two years and that the parental custody must be
granted to him.
036 In case the children will be taken by the mother in
Alaska (Anchorage), this will have a very unpleasant
psychological influence upon them. The new and stranger,
after so many years, environment with completely different
habits, way of living mentality of social customs and
ethics, will have very bad influence in their psychosomatic
development considering their special love toward their
father. Of course, undoubtedly, both the father and the
mother show love and great interest in their children with
whom both parents equally, wish, as it was proved, to live
together with them. However, from our personal
communication with the children, it was clearly proved that
they have been fully adjusted to their new environment of
the Father, whom they do not show, by all means, to intend
to leave him, and the feelings expressed for him and their
grandmother, lead us to consider that in case of their
moving will create bitterness and psychical wounds, and
those feelings must be avoided due to the tender childhood.
And it is true also, the father’s behaviour, that is to
take away the children without mother’s consent, is not
legal, and is against the America and Greek Criminal law.
However, that fact cannot cause reason of excluding the
granting of parental custody to him, once the children’s
welfare, is over all. The Mother, who is represented by the
Greek State, with her motions is stating that in this case
the prescription of the article 12 1 of the Convention of
Hague, is applied, and that, because the petition was filed
within one year for the kidnapping, the children must be
given, immediately. But this allegation is not legal. With
the Convention of Hague, the child is protected
internationally, against the harmful consequences of an
illegal moving or keeping, (the child). More specifically
according to the Article 12, if to Court or Administrative
Authority a petition is filed within one year from the
illegal keeping, the authority is obliged to give back the
children, immediately. However, if it undertakes after the
year, it is obliged equally to order the returning of the
child, except when it is proved that the child has already
been adjusted to the new environment. And this, of course,
was decreed for unexplained reasons. Because within a year
from the child’s keeping, a child has not been adjusted to
the new environment, neither has it alienated from the
environment which used to live before. While, if a year has
passed, there is a possibility, to have been used and been
adjusted to the new environment and that is why the
exception was made “in case” 2. Thus, in the present
matter, 2 of the article 12 is applied, since the Court
Authority, took the case after the termination of one year
and more specifically after two years, of their illegal
moving. On the basis of all the above, and due to the very
urgent and necessity for the children to continue their
schools (which have been interrupted on 02 Apr 1996 see No
78/ 25 Ap 96 certificate of the Public Elementary School of
Perea) must be accepted the prayer of the first petition as
per the main issue, the second petition be rejected as
without objective and the one of the Greek State as
groundless on main issue. Court fees are not charged due to
lack of such a request by the winning father.
FOR THE REASONS THEREIN STATED
The Court Orders that No 10582/96, 11908/96 and 13942/96
petitions have to be jointly tried.
It tries the legal arguments of both parties.
It rejects No 11908/96 and 13942/96 petitions.
It accepts No 10582/96 petition
It grants, temporarily, the legal and physical custody of
the minor children of both spouses, to wit: Marianthi
Cassanra and Meredith Eleni, 8 and 7 years old
correspondingly, to the petitioner father Mr. Grigoris
Basdaras
ADJUDICATED, DECIDED AND PUBLISHED in the public session,
during and exceptional assembly in hassaloniki on 20 May
1996 with the presence of Mrs. Nikoleta Karatheologou, Clerk
of the Court.
THE PRESIDENT THE
CLERK
A TRUE TRANSCRIPT
Thessaloniki, 21 May 1996
THE COURT CLERK
ss: nikoleta karatheologou
Official seal Stamps and
Fees
———————–
WMH Comment:
037 This case is an application of the exception for
return in Art. 12. The facts show that the mother had been
awarded custody by a divorce decree in Alaska and the father
visitation. On or about 13 Mar 1994 the father removed the
children from Alaska and took them to Greece. An action
under The Convention was filed by the mother on 22 Mar 1996,
just over two (2) years from the removal.
038 While one could argue concealment (and thus tolling of
the one year period of Art. 12), this dones not appear to
have been viable and indeed, from the text of the case, the
mother seems to have known where the children were.
039 The Greek Court finds that the removal was wrongful
and that, had the children been in Greece for less than one
year, they would have had to been returned to Alaska.
040 The Greek Court, after ruling that the children had
been in Greece for over one year than determined, using a
best interest type of test, that the children were “. . .
now settled in [their] new environment. . .” Art. 12.
041 While perhaps it would have been better if the Greek
Court had exercised its discretion and returned the children
regardless of the “well settled” finding, the decision is
within the reasonable expectactions of The Convention.