Ministry of Justice and CM (Cyprus 1996)District Court of Nicosia Appl. No. 405/96
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DISTRICT COURT OF NICOSIA
Before: G. Mettouris, D.J.
Appl. No. 405/96
Between:
The Minister of Justice and Public Order (as Central
Authority for the purposes of the Convention on the Civil
Aspects of International Child Abduction)
Applicant
and
CM, of Nicosia
Respondent
This application having come up for hearing in the presence
of Mrs. G. Frangou, advocate for the applicant, and Mr.
Eliades, through Mr. T. Papadopoulos, advocate for the
respondent, and after everything said on behalf of the
parties was heard,
THIS COURT HEREBY ORDERS the return of the minor MGM to
Warren County of New York, USA.
It is to be understood that the Central Authority of the
Republic of Cyprus will contribute to the implementation of
this Order.
AND THIS COURT FURTHER ORDERS that the respondent should pay
the cost that will be required for the return of the minor
to Warren County of New York, USA.
Given on 18.12.96 (18 Dec 96)
Drawn up on 18.12.96. (18 Dec 96)
(Sgd) G. Mettouris
D.J.
True Copy
(Sgd)
Registrar
ENDORSEMENT: If you the above mentioned respondent fail to
obey the above order you are liable to arrest and your
property to confiscation
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DISTRICT COURT OF NICOSIA
Before: G. Mettouris, D.J.
Appl. No. 405/96
Between:
The Minister of Justice and Public Order (as Central
Authority for the purposes of the Convention on the Civil
Aspects of International Child Abduction)
Applicant
and
CM, of Nicosia
Respondent
Date: 18.12.1996 (18 Dec 96)
Appearances:
For the Applicant: Mrs. Frangou
For the Respondent: Mr. M. Eliades
JUDGMENT
This Application was filed by the Minister of Justice and
Public Order (as Central Authority for the purposes of the
Convention on the Civil Aspects of International Child
Abduction) by which he asks for:-
1. An order by the Court ordering the return of the
under-aged daughter of the Respondent MGM to her mother SMM,
of New York, USA.
2. The cost for the return of the minor to the USA.
It is based on sections 4 and 5 of Ratification Law
11(III)/94 and Arts. 3, 4, 5, 6, 7, 8, 11, 12, 13, 18, 19,
26, 30, 35 and 38 of the Convention on the Civil Aspects of
International Child Abduction concluded at the Hague on 25
October 1980 and ratified by the Republic of Cyprus through
the above Law 11 (III) of 1994.
The facts on which it is based are set out in the attached
affidavit of Ann Shakalli from Nicosia dated 22.5.96. In
paragraphs 1-3 of her above-mentioned affidavit Ann Shakalli
says the following:
“1. I am an administrative officer in the Public
Administration and Personnel Service, posted to the Ministry
of Justice and Public Order since August 1985.
2. I am responsible for the handling of cares based on the
Convention on the Civil Aspects of International Child
Abduction and I make this affidavit relying on facts which
know and on information that has come to my knowledge from
official documents.
3. The above Convention to which the Republic of Cyprus
acceded came into force in Cyprus on 1 February 1995, the
USA stated that it accepted the accession of the Republic of
Cyprus and consequently the Convention came into force
between Cyprus and the USA on 1.3.95.
Under article 4 of the Convention the Minister of Justice
and Public Order was designated as Central Authority in the
Republic of Cyprus for the purposes of the Convention.”
Furthermore, paragraphs 5-14 state the following:
“5. Under a Judgment of the Family Court of New York, dated
2 February 1996, the custody of underaged MGM has been
entrusted jointly to the respondent and her mother SMM. A
certified copy of the order of 2.2.96 is attached as Exhibit
1.
6. Under para. 2 of the above order the mother of underaged
MGM had her physical custody.
7. Under para. 5 of the said order none of the two parents
of the minor could remove her from Warren County of New York
except following a subsequent order by the Court or with the
specific consent of the other parent.
8. Through a subsequent order dated 10 April 1996 the
Family Court of New York ordered that none of the litigants
(that is the Respondent and the mother of the underaged
girl) could remove underaged MGM from Warren County of New
York for a period that would involve overnight stay.
A certified copy of the order of 10.4.96 is attached as
Exhibit 2.
9. On 19 April 1996,the Respondent picked his daughter from
the school so that she might spend the weekend with him, as
it had been arranged.
10. On 20 April 1996 the mother of the girl received a
telephone call from the Respondent that he and the underaged
girl were in Cyprus.
11. The mother of the girl in an Application dated 22 April
1996 asked for her return to the USA on the basis of the
above mentioned Convention.
The application is attached as Exhibit 3.
12. By a subsequent order dated 5 May 1996 the Family Court
of New York declared as wrongful, under Article 3 of the
Convention, the removal of the underaged girl to Cyprus. A
certified copy of the order of 5.5.96 is attached as Exhibit
4.
13. The said order says that immediately before the removal
and retention of the girl in Cyprus by the Respondent, her
mother SMM exercised in reality custody rights.
14. At all material times before her wrongful removal from
the USA the underaged MGM was habitually resident in Warren
County of New York.”
The objection of the Respondent, father of the underaged
girl, is based on the Civil Procedure Rules D.48 I.4 on Law
sect. 11 (III) 94 and on the Convention on the Civil Aspects
of International Child Abduction (particularly Art. 13).
The facts on which he relies are set out in his sworn
statement, dated 31.10.96 where in para. 1 and 2 he says
that:
“1. I am the Respondent in the application under the above
number and title and father of the underaged MGM and know
the facts of this case very well.
2. I have read the sworn statement of Mrs Ann Shakalli from
Nicosia, dated 22.5.96, which has been filed in support of
the above application and except where I expressly make an
admission I disagree with and deny all the allegations
contained in para. 1-17 of the aforementioned sworn
statement.”
He further refers to the history of his marriage and the
conditions in which he lived with his wife and his underaged
daughter and in para. 4-19 he stresses the following:
“4. After my return to New York in December 1995 I saw, on a
number of occasions, my wife with a man named CTN, who was
evidently much older than she and with whom, as it emerged
and as my wife herself later revealed, had an extramarital
affair. The said CTN, as I established, was 53 years old,
married and lived with my wife and my daughter in the house
of my wife’s mother and repeatedly slept in the same room
with my daughter.
Indicative of the bad and dangerous influence this
relationship and more specifically the above mentioned CTN
had on the mental and physical health of our daughter is the
fact that the court order dated 2.2.1996 which the applicant
attaches as Exhibit “1” in the sworn statement that supports
his application says clearly in para. 4 that any contact
with the aforementioned person is prohibited. Following
these developments I was personally evicted from the house
of my wife’s mother and had to live elsewhere. It must be
mentioned at this point that the younger sister of my wife
lived in the same house with my wife and MGM. Though
married this woman had an affair with a married man who
happened to be a drug user and our daughter was in daily
touch and with, was left to the “care” of these people.
A factor that contributed to the unacceptable situation in
the house of my wife’s mother were also the frequent visits
of her brother, who, though married, had an out of wedlock
child with a young girlfriend.
5. My wife on my return to New York had problems of
excessive consumption of alcohol. I ascertained in the past
that these problems had been aggravated given that during
our contacts I saw empty bottles of alcoholic beverages in
her car.
6. On or or about 2.8.95 my wife, without my consent,
withdrew all the money we had deposited in a joint account
and transferred it to her name in another account without
giving me any explanation.
7. After filing my application for the custody of MGM with
the New York Court in January 1996, the principal of the
school in which my wife worked revealed to me that my wife
had another affair with some school teacher who was 59 years
old and whom she met often in the presence of our daughter.
8. On or on about 9.2.1996 my wife repeatedly refused to
allow me to have access to our daughter in accordance with
the Court order in force at the time and repeatedly
prevented me from doing this with the result that I filed an
application for contempt of court against her.
9. Throughout our marriage and as far as I observed my wife
repeatedly prevented the child from learning Greek which is
her father’s language and repeatedly prevented her from
going, or refused to allow her to go, to an orthodox church
while she was baptized in accordance with the rites of the
orthodox church”
In paras. 14-19 he describes the conditions of living and
adjustment of the underaged child in Cyprus as follows:
“14. Our daughter MGM, as it is established also in the
report of the competent Welfare Office officer which has
been included in the Court file, does not want to return to
the USA. The provision of the Convention is clear. More
specifically in Art. 10 it says that the return of the child
must be voluntary.
15. Without prejudice to what is mentioned above it in
evident that the return of our daughter to the USA involves
the serious risk of exposing her to physical or
psychological hard or placing the child in an intolerable
situation. The conditions in which the child lived and was
brought up under the care of my wife were and continue to be
unacceptable and dangerous to the psychological and,
consequently, the physical health of the child. On the
contrary MGM, as the Welfare Office officer also
establishes, has adjusted very quickly, has got used to her
school in which she is a very good pupil, is learning the
Greek language quickly and has made friends as it is
certified also by Exhibit “B” which is the teacher’s report.
Also the child enjoys perfect health and since her return to
Cyprus she has grown taller and gained weight and at this
moment she is a very healthy girl both mentally and
intellectually as it is confirmed also by Exhibit “C”, which
is the relevant medical report.
16. In contrast to the unacceptable conditions in which MGM
lived during her stay in the United States where she was
surrounded daily by persons of low morality the child is now
living with me and my mother who is very fond of her and
takes care of her with excellent and healthy building
installations and all necessary comforts in a safe area and
very close to the house of my sister where her cousins, with
whom she has extremely friendly relations, live.
Generally MGM is very happy both with her family and her
school environment and has repeatedly expressed both to me
and to other persons the desire to stay in Cyprus.
17. Indicative of the indifference with which my wife
approached both the child and our marriage is that in the
last six months we have been living in Cyprus very few times
did she try to communicate with the child and when she did
her aim was to create to the child feelings of insecurity
and hate towards me.
18. I honestly believe that if an order is issued for the
return of my daughter to the USA where both the personal
conditions of my wife and more specifically of the town in
which she lives are much worse than those prevailing in
Cyprus and more specifically inferior to those prevailing in
the house where the child now lives with me will expose her
to a terrible psychological and consequently physical harm
which I have no doubt will place her in an intolerable
situation.
19. My feelings towards MGM are feelings of unbounded
affection and love and I am doing everything possible to
ensure the best conditions for her upbringing. I am an
American university graduate and work as teacher at the
College of Tourism with high emoluments as it is stated also
in the Welfare Office report and I am in a position to offer
infinitely better conditions, both from the point of view of
material welfare but also from the mental and psychological
point of view, than those offered to the child by her mother
who, during the period they lived away from me, offered her
only an environment of illicit affairs, drink abuse and low
morality persons and generally conditions which can be
described as anything but appropriate for a seven-year old
child.
During the hearing the first witness to give evidence was
Maria Efthymiou, a Welfare Office officer, who said that on
instructions from the court she had prepared a relevant
report which she produced and was marked as Exhibit (A). She
then gave a detailed explanation of the contents of the said
report and replied to various question put to her by both
advocates. She further clarified that what she says in her
report is based on information provided by the parties. I
shall refer to the content of this report and also to what
the said witness told the court at a subsequent stage in the
evaluation of the whole evidence.
Evidence was then given by Ann Shakalli, who works as
Administrative Officer at the Ministry of Justice and Public
Order. After confirming the content of her affidavit which
is date 22.5.96, she analyzed and explained the whole
procedure of ratification, accession to and acceptance on
the part of the contracting states for the purposes of
implementation of the above convention, clarifying that this
came into force between Cyprus and the USA on 1.3.95.
Replying to a relevant question, she said the corresponding
central authority of the USA is the State Department with
which the Central Authority of the Republic of Cyprus has
communication and cooperation regarding the affairs they
handle.
On cross-examination she said that the above Convention was
enacted into law by the House of Representatives and
published in the Official Gazette of the Republic on 1.7.94.
She repeated that the Central Authority of the USA is the
State Department, adding that the Central Authority of the
Republic of Cyprus has been informed about this matter
through a relevant circular. Asked further about this point
she replied that the US State Department is the only Central
Authority, clarifying that she knows this for certain
personally. In reply to another question she said when an
application by an individual is conveyed by the Central
Authority of a country which is signatory to the Convention
the Central Authority of the Republic of Cyprus has no
reason to dispute what the said Central Authority which
conveys the application states nor is certification of any
document needed, in accordance with the aforementioned
Convention.
Regarding the judgment of the Family Court of New York dated
2.2.96, Exhibit 1, she said that she did not remember
whether it was original, clarifying that it was sent to
Cyprus by the US State Department and not by the Court
directly, but in the document itself there is a
certification that it is a true copy, that is, she said, the
certification is original like that of the other Exhibits.
The next to give evidence wad the mother of the minor SMM
who said that with her husband-respondent they were in a
divorce procedure and in January 1996 an application was
filed by him before the family court of New York for the
settlement of the matter of custody of their under-aged
daughter. The said Court, she said, issued an order under
which they would have joint custody of the minor while she
would have the physical custody of the minor. The order
further provided also about the question of the access of
her husband to the minor and he actually exercised his
rights in accordance with the said order. She then said that
apart from above-mentioned order another order Was issued on
about 10.4.96 which provided that neither she nor her
husband would remove the minor from the area of Warren
County of New York.
The last time her husband took the minor in accordance with
the above Orders was on 19.4.96.He should have taken her
back on the night of 22.4.96 at 8:00 p.m. But he did not
take her back nor at any other time later. She herself did
not know where her daughter was until her husband informed
her by telephone on 20.4.96 the she was in Cyprus with him.
Following this development she communicated with the US
State Department as Central Authority and then made an
application for return of the minor to the place where she
lived before she was taken to Cyprus. She sees Exhibit 3
and states that this is the application she made, confirming
also the signature at the bottom.
Continuing she said that after the removal of the minor to
Cyprus she first had a telephone communication with her on
some occasions but after that she had no communication
despite the many efforts she made she did not communicate
with her for weeks and months. When she telephoned to
Cyprus various reasons were given her for the purpose of
preventing her from communicating with the minor and
sometimes her husband pretended not to understand in order
to reply to her to what she told him and left her to to
visit. She came to Cyprus on 16.8.96 and stayed until
16.9.96. During this period she tried to have access to her
daughter and the first week she managed to telephone her and
see her for 5 hours in one day but she could not see her
afterwards. She also saw her again for 2 hours the day
before her departure. On the two occasions she saw the
minor she was in the house where her father lives. She
asked that they go with the minor somewhere else so that
they might have the opportunity to be for a while together
but CM (Respondent) did not allow this.
She came to Cyprus again on 31.10.96. She asked to see her
daughter and saw her only once, on Saturday 2.11.96, during
her birthday party. After that date she did not see her
again despite the efforts she made because CM (Respondent)
prevented this.
In her cross examination she referred again to the efforts
she made in order to have access to her daughter and to the
problems and obstacles she encountered. When it was
submitted to her that her husband had suggested that she too
should go to Pedoulas where her daughter was holidaying so
that they all might stay together and she had refused, she
repeated that her husband did not allow her to be alone with
her daughter, adding that she was in confrontation with her
husband and she could not be with her daughter in his
presence.
It was submitted to her that the reason why her husband took
the minor from the house on 19.4.96 was because she herself
consented that he should take her with him for the whole
period of the holidays and she replied that she denied the
allegation and referred to the court order on the basis of
which the rights and obligations of the parents of the minor
were exercised. It was also submitted to her that she
herself had proposed to her husband a compromise in the
whole matter and she replied that she had asked him to
return MGM immediately. She was asked whether she knew a
certain CTN and she replied that she did. She was then
asked whether she had an extramarital affair and the Court,
following an objection by Mrs. Frangou, did not allow the
question for the reasons explained in the minutes which will
be set out also in this Judgment at the appropriate stage.
In response to the submission that the Court Order, Exhibit
1, was temporary and did not apply now she replied that “MGM
is in Cyprus”.
In testifying the Respondent, father of the minor, CM, after
adopting the contents of his above-mentioned affidavit,
said, inter alia, that on 19.4.96 and at about 2:45 pm he
picked the minor from the school and then they dropped by
the house where she lived with her mother in order to take
her suitcase with the clothes and spend the spring holidays
together. On that day, which was a Friday, there stared his
access to his daughter on the basis of the Court Order. His
wife had given her permission to him to keep her until
Monday week when she would go back to school. He then said
that when he made the application to the New York Court he
lived in the same house with his wife but was then evicted
and first stayed in a hotel sod later rented a flat in a
nearby district.
He agreed that, after coming to Cyprus with the minor, he
telephoned his wife and informed her about his action. But
at the end of their telephone communication she gave him her
consent for MGM to stay in Cyprus. Justifying his action in
bringing MGM to Cyprus he said that the living conditions of
the family in New York had affected her psychologically and
also her health. The minor had many times asked him to
protect her from the family environment of his wife and also
wanted to live with him. His wife did not allow him to have
access to MGM except in the cases allowed by the Court
Order. She also prevented their daughter from learning the
Greek language and going to an orthodox church.
I want to state, he added, that many threats were made
against me by persons of the close entourage of my wife,
adding that in view of the whole situation that prevailed in
New York he decided that the best way to protect the minor
was to bring her to Cyprus. Continuing he said that he had
seen the Order. of the New York Court, Exhibits 1 and 2.
The Order, Exhibit 1, was issued following an application by
him. As regards Exhibit 2 he was not aware that such
procedure had taken place on 10.4.96. This Order, he said,
was not even served on him and he saw it for the first time
in the present application.
On cross examination he said that on 19.4.96 he took the
minor so that they might spend the spring holidays together
and when he was asked whether he had told his wife where
they would spend the holidays he replied that he never told
her that they would spend the holidays in America and when
asked whether he had told her that he would bring the minor
to Cyprus he replied: “I did not tell her that I shall bring
the child to Cyprus”. He rejected the submission that he
took her on 19.4.96 and would take her back on 22.4.96 and
added that he had formally asked to have her with him for
the entire spring holiday. When it was submitted to him to
him that his wife had not consented to his keeping her
beyond 22.4.9 he rejected this, adding that he had given him
her convent for the entire holiday. At this point he was
asked if they would spend the holidays in America and he
replied: “We did not agree on something like this. She gave
her to me to keep but where that was my responsibility”.
He was asked whether he knew (illegible) and whether he was
aware of the contents of the Order, Exhibit 1, and he gave
an affirmative reply. He was then asked whether in the said
Order there was any provision which allowed him to take the
minor wherever he wanted and he replied that, in accordance
with legal advice he had received. the order did not
restrict him from taking her anywhere when she would be
under his custody, meaning that he could take her even out
of the USA if he wanted
He then agreed that the conditions he claims prevailed in
the house and the family environment of his wife in New York
existed before he came to Cyprus and before he made the
afore-mentioned application to the New York Court,adding
that these conditions started to prevail at the end of 1993
when he himself was in Cyprus.
In the course of the hearing the advocate for the Respondent
raised a question of disputing the authenticity of the
signature of the mother of the minor on the application
which is attached to the present application, Exhibit 3, and
it was agreed by both parties that the matter should be
examined by the police graphologest, and this task was
undertaken by sergeant 3626 Kypros Kyprianou who had given
evidence before the Court on 29.11.96. I am of the opinion
that there is no need to deal further with the evidence of
the said witness. The contents of Exhibits B, C and D he put
before me and the replies he gave to a host of questions
leave no room for doubting the genuineness of the said
signature of the mother of the minor.
EVALUATION OF EVIDENCE
From the evidence before me there is no doubt-and these are
the accepted facts-that both the Republic of Cyprus and the
United States of America are signatories to the
aforementioned Convention and that this came into force
between them on 1.3.95, and the Ministry of Justice and
Public Order of the Republic of Cyprus and the State
Department of the USA are the respective Central Authorities
for the purposes of the said Convention.
The object and primary concern of the States which signed
this Convention is demonstrated clearly and in the most
emphatic manner by, inter allia, the contents of the preface
which stresses their desire to protect internationally
children from the harmful consequences of their removal or
retention and for the creation of procedures that that will
ensure their prompt return to the State of their habitual
residence. But the entire text of this international
Convention is inspired by the above principle and aim,
focusing on the protection and welfare of children and at
the name time strongly disapproving and discouraging actions
that tend to adversely affect the normal life of children
such as their wrongful removal or retention by any person.
The first question that should be answered in the case we
are examining is whether there has been indeed wrongful
removal of underaged MGM from the USA to Cyprus in
accordance with Art. 3 of the Convention, which provides
that:
The removal or the retention of a child is to be
considered wrongful where-
“(a) it is in breach of rights of custody
attributed to a person, an institution or any
other body either jointly or alone under the law
of the State in which the child was habitually
resident immediately before the removal or
retention, and
(b) At the time of removal or retention those
rights were actually exercised, either jointly or
alone, or would have been so exercised but for the
removal or retention. The rights of custody
mentioned in sub-paragraph above may arise in
particular by operation of law or by reason of a
Judicial or administrative decision or by reason
of an agreement having legal effect under the law
of that State.”
In this application from the evidence as a whole before me
there is no trace of doubt, and it is an accepted fact, that
the mother of the minor had the custody of the minor before
the Respondent brought her to Cyprus and that she actually
exercised this custody and would have continued to exercise
it if the above removal had not taken place. Indeed, in
this case, this custody was exercised also under an Order of
the New York Court which is attached to the Application as
Exhibit 1. Consequently, the prerequisites of the above
article are fulfilled and my finding is that the minor was
wrongfully brought to Cyprus from New York by the
Respondent.
Since my finding is that the child was brought wrongfully to
Cyprus there arises now the question what the next step
should be: A reply to this point is given us by Art. 12 of
the Convention which provides that:
“Where a child has been wrongfully removed or
retained in terms of Article 3, and at the date of
the commencement of the proceedings before the
judicial or administrative authorities of the
Contracting State to which the child is, a period
of less than one year has elapsed from the date of
the wrongful removal or retention the authority
concerned shall order the return of the child
forthwith.”…
In the present case it is quite clear that the period that
elapsed since the date of the wrongful removal of the minor
until the start of the procedures before the Judicial or
Administrative Authority of the Republic of Cyprus is
shorter than one year and, therefore, the prerequisites of
the above Article for the Court to order the immediate
return of the minor to the place from which she was
wrongfully removed are fulfilled.
One of the reasons the Respondent invokes in his objection
is that if the Court orders the return of the minor to the
USA where both the personal conditions of his wife and the
more general conditions of the country and more specifically
of the town where she stays are much worse than those
prevailing in Cyprus and specifically inferior to the
conditions prevailing in the house where she now lives with
him and this will expose the child to physical or
psychological harm and create an intolerable situation for
her.
He bases this position on Art. 13 and more specifically on
its paragraph (b). The said Article as a whole provides
that:
ARTICLE 13
Notwithstanding the provisions of the preceding
Article, the judicial or administrative authority
of the requested State is not bound to order the
return of the child if the person, institution or
other body which opposes its return establishes
that–
(a) the person, institution or other body having
the care of the person of the child was not
actually exercising the custody rights at the time
of removal or retention, or had consented to or
subsequently acquiesced in the removal or
retention; or
(b) there is a grave risk that his or her return
would expose the child to physical or
psychological harm or otherwise place the child in
an intolerable situation.
The judicial or administrative authority may also
refuse to order the return of the child if it
finds that the child objects to being returned and
has attained an age and degree of maturity at
which it is appropriate to take account of its
views.
In considering the circumstances referred to in
this Article, the judicial and administrative
authorities shall take into account the
information relating to the social background of
the child provided by the Central Authority or
other competent authority of the child’s habitual
residence.
Regarding the conditions which the Respondent claims prevail
in the house and generally the family environment of his
wife there is also extensive reference inter allia in the
above paragraphs of his affidavit. ent. During the hearing
an attempt was made on the part of the Respondent for the
said conditions to become sub judice matters and the main
axis on which the whole procedure of this application would
revolve. Indeed during the cross-examination of the mother
of the minor the question was put to her whether she had an
extra-marital affair with a certain TN, a question to which
Mrs. Frangou objected and the Court did not allow.
Among the reasons for which the Court did not allow the
above question and also certain others which concerned the
above conditions, are the following:
This application has as legal background the above
Convention the primary object of which,is as I stressed
above, the protection of minors from the adverse effects
their illegal removal or detention has for them and for
their family as a whole and further the taking of all
necessary measures by the competent authorities of the
contracting states so as to ensure their prompt and an for
as possible early return to the place from which they were
wrongfully removed.
It is a common ground in this case that the Respondent
himself filed an application to the family court of New York
for settlement of the question of custody, access to and
custody of the child and the said Court on 2.2.96 ordered
that the two parents will have jointly the custody of the
child and her mother her physical custody. It also
regulated, inter alia, the manner of access of the father to
his minor daughter. It should be noted that during the
procedure before the said Court the Law Guardian appeared on
behalf of the minor and in paragraph 15 of the said Order it
is stated:
“The Law Guardian shall report to the Court as to the status
of the matter within 30 days”.
In para 5 of the said order it is stressed:-
“Neither party shall permanently remove the child from
Warren county except upon further order of the Court or
specific consent of the other party”.
It is useful at this point to quote verbatim also para. 4 of
this Order in which it is stressed that:
“Neither party shall permit the child to be left alone with
CTN or to permit the child to remain overnight at the Nacy
residence”.
On 10.4.96 the same Court issued an amendment Order, Exhibit
2 of the application, which says the following in paragraphs
1 and 2.
“1. Neither party shall remove MGM (born November 1, 1989)
child of the parties, from Warren County, New York, for an
overnight period.
2. All consistent provisions of the prior order shall
continue.”
Thus while following an application by the Respondent
himself, the above arrangement of the matters was achieved
through the Court, on 19.4.96 he removed wrongfully the
child to Cyprus invoking the conditions that existed even
before he filed his above application, and he tried to
exploit the present procedure in order to put before the
Court for examination matters which were taken into
consideration or should have been taken into consideration
during the procedure before the Family Court of New York.
The fact that the matters which concern the conditions the
Respondent invokes were taken into consideration by the said
Court is proved in the most clear and convincing manner by
the above paragraph 4 of the order.
But even if we accept that not all the conditions were set
out before the Family Court of New York the responsibility
rests with the Respondent himself who had the opportunity
and the possibility to do this. That the said conditions
prevailed at the time the Respondent filed the above
application was admitted by him himself in giving oral
evidence before the Court in this application.
Beyond this, even if we assume that not all the conditions
that prevailed in the environment of his wife were set out
before the above Court or some of them emerged after the
above arrangement was made the Respondent could, and I
believe he can and has the right to do this in future, take
lawful and indicated steps for re-examination of the
question of custody, access to and physical custody of the
child before the above Court of New York in whose
jurisdiction the child had her habitual residence. The
attempt of the Respondent to turn the present procedure into
a new procedure of custody and physical custody of the child
and to deflect it from the framework and the purposes of the
present application could not be allowed by the Court. If
this were done in the present case, I hold the view that the
provisions of the above convention would be indirectly
bypassed and it would be difficult, if not impossible, to
implement them, taking into consideration all the
circumstances of this case and particularly the manner in
which the Respondent acted.
Apart from my above observations and findings, it must be
stressed that in the above Art. 1 it is clarified that in
the assessment of the circumstances mentioned in this
article the judicial or administrative authorities take into
consideration the information that concerns the social
background of the child which is provided by the Central
Authority or another competent authority of the country of
the habitual residence of the child. And the burden and the
duty falls on the Respondent himself, who is opposed to the
return of the child,to put before the Court such information
and evidence. In this case not only was no such information
and evidence produced but on the contrary the evidence I
have before me which comes from the Central Authority of the
USA are the above exhibits 1-4 which are attached to this
application and to which I referred previously also and the
contents of which are far from helpful to the position of
the Respondent.
Another reason the Respondent invokes why the Court should
not order the return of the child to the USA is the desire
of herself to stay in Cyprus, which, as he claims, expressed
both to him and the Welfare Officer Maria Efthymiou.
Regarding this matter it is stated on page 7 of the report
prepared by the said officer, Exhibit A, that the minor
expresses the desire to stay in Cyprus because it is more
beautiful and the school is better. In her observations
which are recorded at the end of the report it is stated:-
The case concerns the minor child of the couple who have
separated since January 1996.
The child in staying with her father who provides
satisfactory care and protection. The Family Court in
America, as stated by the couple, gave temporary custody to
both parents.
The child lived until April ’96 with her mother and her
father had access to her on three afternoons a week and
every second weekend alternately with overnight stay.
Since April ’96 when her father picked her from the school
without the consent of her mother, the child has been living
with her father in Cyprus.
As the mother lives abroad it has not been possible to
cross-check the information and to assess the possibilities
of the mother and also her relations with the child.
It is believed the communication of the mother with the
child is indicated for her more normal psychoemotional
development and the avoidance of estrangement in the long
run.
We note that the sensitive stage of age at which the child
in makes it necessary for her to have continuous care and
support in a stable family environment
In testifying in court the above-mentioned officer said she
had seen the minor only once at a meeting that took place in
the house where she lives with her father. The meeting
lasted one and a half hour and she clarified that on the day
she saw the minor she had a meeting with her father and with
her grandmother also. But she had a separate meeting with
the minor also. She did not meet the minor in the presence
of her mother.
The above-mentioned Art. 13 of the above Convention provides
that the judicial or administrative authority may refuse to
order the return of the child if it establishes that the
child is opposed to its return and is already of an age and
degree of maturity that indicate that its views should be
taken into account.
In the case Re S (a minor, abduction (1993) 2 All E.R. 683,
the English appeal court judged that it is possible not to
order the return of the Minor if it objects itself to its
removal and this can be done without the need of proof of
the evidence of the above-mentioned Art. 13(b) about causing
physical and psychological harm to the minor.
In my view the formulation of the above article is clear.
Even clearer is the desire of the contracting states to
limit the cases where the Court could refuse to order the
return of the minor to those exceptional cases in which the
minor itself objects to its being returned but further the
Court must have been convinced that it is already of an age
and degree of maturity that indicate that its views should
be taken into account.
Indicative in this connection is the following extract from
the above English judgment on page 691:-
“The exercise of the discretion under Art. 13
The Scheme of the Hague Convention is that in
normal circumstances it is considered to be in the
best interests of children generally that they
should be promptly returned to the country whence
they have been wrongfully removed, and that it is
only in exceptional cases that the court should
have discretion to refuse to order an immediate
return. That discretion must be exercised in the
context of the approach of the convention-see Re A
and another (minors) (abduction acquiescence)
(l992) 1 All ER 929 at 924, [1992] Fam 106 at 122
per Lord Donaldson MR.
Thus if the court should come to the conclusion
that the child’s views have been influenced by
some other person e.g., the abducting parent or
that the objection to return is because of a wish
to remain with the abducting parent, then it is
probable that little or no weight will be given to
those views. Any other approach would be to drive
a coach and horses through the primary scheme of
the Hague Convention Thus in Layfield v Layfield
(6 December 1991, unreported) in the Family Court
of Australia Bell J ordered an 11 year-old girl to
be returned to the United Kingdom because he found
that she was of an age and degree of matturity for
her wishes to be taken into account, he believed
the those wishes were not to remain in Australia
per se but to remain with her mother, who had
wrongfully removed the girl from the United
Kingdom to Australia. On the other hand, where
the court finds that the child or children have
valid reasons for their objection to being
returned then it may refuse to order the return.
Thus, in Re M (minors) (25 July l990,unreported)
the court refused to order the return of three
children aged 11, 9 and 8 to America. In the
course of his judgment Sir Stephen Brown P said:
I am, however, concerned for the children. I find
that they do not object to being returned and that
each of them has attained an age and a degree of
maturity at which it is appropriate to take
account of their views. I feel that I must take
account of their views. Their views, however, are
not determinative of the position and I have to
consider how far they should affect me. I feel
that I should give effect to their objection in
thin case in the light of the fact that they give
valid reason in my judgment for objection to going
back to America into the care of their father,
because of his former conduct. I consider that he
has materially admitted this. I do not,
therefore, propose to order their return. That is
the sole extent of the order that I make. I do
not determine custody rights or access rights or
any other rights as between the parties. But in
the light of the children’s objection to being
returned, I decline to order their return under
the terms of the convention and the provisions of
the Child Abduction and Custody Act 1985.”
Having in mind the above guidelines, in conjunction with the
facts of the present application, I must now decide whether
the prerequisites and those exceptional circumstances are
fulfilled so that the Court may refuse to order the return
of the minor to the USA. I note in the first place that the
above Article expressly provides for the objection of the
minor to her return to the USA.
In this case,as it is stated in the above-mentioned report
of the Welfare Officer, the minor expresses the desire to
stay in Cyprus because it is more beautiful and the school
is better. It may be said at this point that there is no
clear refusal of the minor to return to the USA but a mere
desire to remain in Cyprus. But even if I accept that this
desire may be regarded as refusal to return there is nowhere
and in no case Justification let alone any explanation for
the reasons for which she objects to her return to the USA.
The desire of the minor to stay in Cyprus, which was
expressed at her meeting with the Welfare Officer that
lasted one and a half hour, and what is more on the same day
and at the same place she had a meeting with her father and
grandmother, even though the meeting took place separately,
can in no case satisfy the court that it is indeed refusal
of the minor to return.
Apart from my above findings I do not have before me any
indication or any evidence as to the question of the age and
degree of maturity of the minor indicating that her views
should be taken into account. In the report of the Welfare
Officer it is stated that the minor is 7 years old and in
the observations it is recorded, inter allia, that,
“..because the mother lives abroad it has not been
possible to crosscheck information and to assess
the possibilities of the mother and of her
relations with the child. It is believed that the
communication of the child with the mother is
indicated for a more normal mental-emotional
development and avoidance of estrangement in the
long run.
We note that the sensitive state of the age at
which the child is makes imperative continuous
care and support in a stable family environment.”
I hold the firm view that the above elements far from
convince the court that the minor possesses much degree of
maturity that that her views may be taken into account.
In finishing with this matter I would I=.e to stress that
fine conditions crested in the period from her wrongful
removal to Cyprus which took place on 19.4.96 until the day
the Welfare Officer met her were such that not only do they
not rule out the possibility of the minor having been
influenced by her father but on the contrary I may say that
the minor has been influenced to a great extent both by the
father himself and by the absence of contact with her
mother.
Suffices it at this point to underline the fact that the
minor has been since January 96 away from her mother with
very few telephone communications at the beginning but no
communications at all at a later stage. Even when the
mother of the minor came to Cyprus for the purposes of this
application the Respondent prevented to a great extent her
access to her daughter so much so that she was forced to
file an application with this Court for settlement of the
question of access to her daughter until the procedure
relating to this application is completed.
It must be stressed that even in the very few cases in which
it became possible for the mother to have a meeting with her
under-aged daughter this took place at the place where the
Respondent wanted and always in the presence of another
person or other persons. It is noteworthy that the mother
and the minor never met alone. It is in the light of these
facts and the whole evidence I have before me that I have
reached the conclusion that the minor has been influenced by
the whole situation as a consequence of her wrongful removal
to Cyprus. Consequently, the allegation of the Respondent
that the minor is opposed to her return can in no way be
accepted by the Court.
In his address Mr. Eliades claimed that the mother of the
minor consented subsequently to the minor staying in Cyprus.
This, he said, emerges from the evidence of the Respondent
before the Court, in which he said that at the end of the
telephone communication he had with the mother of the minor
she gave him her consent for MGM to stay in Cyprus.
Regarding this position, I have to say that in the sworn
statement of the Respondent nowhere is an allegation made
about subsequent consent of the mother of the minor. The
general denial of the facts by the Respondent is not enough
for him to involve afterwards the existence of facts which
he does not include in his sworn statement in a positive and
concrete manner. Beyond this remark of mine, it should be
stressed that the mother of the minor when asked in her
cross examination regarding this point, she rejected the
above position and added that she had asked her husband to
return MGM to America immediately. Besides the facts
themselves in this case rebut in the most categorical manner
the position of the Respondent.
The mother of the minor, as soon as she was informed on
20.4.96 by her husband that MGM had been taken to Cyprus, in
an application on 22.4.98 to the Central Authority of the
USA (Exhibit 3 of this application) asked for the return of
the minor. Also making use of the procedures available to
her and exercising her rights she had under the Order of the
Court of the USA, Exhibit 1, she succeeded in securing the
issue of an Order by the said Court, dated 5.5.96, Exhibit
4. But even following her above mentioned immediate reaction
and during this procedure the whole action of the mother of
the minor and all her persistent efforts show that not only
did she not consent to Marina staying in Cyprus but on the
contrary I am convinced that she left no stone unturned in
order to secure her return to the USA.
In paragraph 10 of his affidavit the Respondent raised a
question of validity of the order of the US Court, dated
5.5.96. Exhibit 4, and his advocate in his address raised a
question whether the Order dated 2.2.96, Exhibit 1, was in
force, supporting the position that this is a temporary
Order, and even stressing that neither Mrs. Shakalli nor the
mother of the minor testified that the said order is really
in force.
With all due respect I fail to understand what the question
whether the said order, under which the question of custody,
physical custody and access to the minor has been settled,
is in force or not has got to do with the outcome of this
application.
It is my finding, as set out earlier also, that on 19.4.96
there was wrongful removal of the minor to Cyprus, stressing
also that the prerequisites of Art. 3 are fulfilled, adding
that in this case, apart from other data, the physical
custody of the minor was given to the mother under the said
Order which the Respondent himself invoked at several points
of his testimony.
Thus, since the finding of the Court is as stated above the
return or otherwise of the minor can in no case be dependent
on whether the said Order is in force or not. Going further
regarding this point I would like to point out that in the
present process the execution of any Order is not raised as
a sub judice matter nor is the existence of any Order
required for deciding whether in a specific case a wrongful
removal of a minor has been carried out or not.
In paragraph 11 of his affidavit the Respondent claims that
the present application is illegal and improper since it was
not filed in accordance with the Civil Procedure Rules
and/or the Civil Procedure Rules on which it was based under
section 5 of the Ratification Law 11 (III)/94 are not
mentioned in it.
The said position wee further elaborated by the Advocate of
the Respondent in his address.
The pertinent section 5 of the above Ratification Law
provide. that:-
“5. Any Judicial process in accordance with the
provisions of the Convention starts with the
filing of an application by summons supported by
an affidavit, in accordance with the provisions of
the Civil Procedure Rules, mutatis mutandis.”
It is clear from the wording of the said section that for
the start of any judicial process the filing of an
application by summons supported by an affidavit is
required. In this case it is not disputed that these two
elements exist.
I hold the view that the said section set very clearly as a
basic prerequisite for the start of the Judicial Process the
filing of an application by summons supported by an
affidavit for the purpose of determining the Procedural
Legal framework for the start of the whole process, which
process, as it says further down, will be in accordance with
the civil procedure rules, mutatis mutandis. The object and
the spirit of the phrase “mutatis mutandis” is very clear.
I interpret it as a guiding indication that in cases of
wrongful removal of children like the present application
the Civil Procedure Rules will be implemented in combination
and conjunction with the provisions or the above
international convention, mutatis mutandis, for the
speediest possible start and continuation of the Judicial
Process so that the whole affair may not drag on.
I hold the view that in the case we are examining the start
of the process with the filing of the application by summons
supported by an affidavit fulfill the prerequisites set by
the above section 5 as it defines the right framework for
the start of the Judicial Process, providing at the same
time to the Respondent all the evidence and informing him
about all the matters he will have to face before the court.
But even if we accept that the Civil Procedure rules also on
which it is based should have been included in the above
application I hold the view that this omission would be
merely formal and would not affect at all the outcome of
this application. A different approach to the whole matter
would result in the objects and basic principles for which
the aforementioned Convention was drawn up not being
fulfilled if these applications were rejected on account of
formal omissions which do not affect at all either the
substance of the application or the Judicial process itself.
I referred at the beginning of my judgment also to the
significance and primary object of this International
Convention but I deem it advisable to cite below an extract
from the work Halsbury’s Laws of England, Fourth Edition
Reissue Volume 8(1) page 578, para 779:
“….To some extent, special considerations apply
where there has been a kidnapping, that is where a
minor has been brought to England in defiance of
the order of a foreign court, or against the
wishes of one or both parents and with some
element of force or deception or secrecy. In these
cases the welfare of the child remains the
paramount consideration, but in assessing it the
court will take into account the kidnapper’s
conduct and its effect on the child The court may
order the child’s return to the foreign country to
minimize the harmful consequences of a kidnapping
and in some cases it will do so by way of a
summary order without necessarily examining all
the issues in the case: this prevents a kidnapper
from gaining an advantage through the passing of
time. In dealing with these cases the court will
take into account the principles underlying the
Hague Convention on the Civil Aspects of
International Child Abduction, even where the
Convention provisions do not apply as the foreign
state concerned is not a party to it.”…
In his address the advocate for the Respondent raised for
the first tine the question of Jurisdiction of this Court,
claiming that nowhere in the said Ratification Law is it
stated that such Jurisdiction is granted to the Nicosia
District Court and submitted that the Family Court has
Jurisdiction to deal with this application under Article 11
of the Constitution and Laws 23/90 and 88 (1/94).
Article III of the Constitution before its amendment
provided for the following: –
“Subject to the provisions of this constitution
any matter relating to betrothal, marriage,
divorce, nullity of marriage, judicial separation
or restitution of conjugal rights or to family
relations other than legitimation by order of the
court or adoption by members of the Greek orthodox
church or of a religious group to which the
provisions para 3 of article 2 shall apply shall
on or after the date of the coming into operation
of this constitution, be governed by the law of
the Greek orthodox church or of the church of such
religious group, as the case may be, and shall be
cognizable by a tribunal of such church and no
communal chamber shall act inconsistently with the
provisions of such law.”
Following the amendment of the above article through the
first amendment of the Constitution Law 95/89 the
ecclesiastical courts were deprived of the powers they had
and these were granted to Family Courts. However, it
emerges from the above that the powers granted to the Family
Courts were in relation to betrothal, marriage, divorce, the
validity of marriage, the judicial separation or the
restitution of conjugal rights or family relations other
than legitimation by order of a court or adoption by members
of the Greek orthodox church, while in the present
application its object and sub judice matter is the wrongful
removal of the minor from the USA to Cyprus and whether this
Court should order or not her return to the place where she
was before the said wrongful removal was carried out.
In the present case there is no question of the relations
between the spouses or between them and the minor. Nor does
a question of custody of or access to her at this stage
arise and before it is decided first whether the return to
the USA will be ordered or not.
Relevant in this connection is Art. 16 of the above
Convention, which provides that:-
“After receiving notice of a wrongful removal or
retention of a child in the sense of Article 3 the
judicial or administrative authorities of the
Contracting State to which the child has been
removed or in which it has been retained shall not
decide on the merits of rights of custody until it
has been determined that the child is not to be
returned under this Convention or unless an
application under this Convention in not lodged
within a reasonable time following receipt of the
notice.”
It is clear, in my view, from the above wording also of the
said Article that this Court at this stage is called upon to
decide on the return or otherwise of the minor and not on
the substance of custody rights.
Art. 19 of the Convention further reinforces the above
views. It Provide. that:-
“A decision under this Convention concerning the
return of the child shall not be taken to be a
determination on the merits of any custody issue.”
The above is in keeping also with the whole spirit of the
Convention which focuses on the question of wrongful removal
of children and the effective dealing with the harmful
consequences such actions involve. Besides, this is why the
contracting parties have provided for special procedures
such as, for example, the obligation envisaged by Art. 6
under which each contracting state designates a Central
Authority to discharge the duties imposed by the Convention.
Indeed, the Central Authorities have the Right but also the
Duty, as it emerges from the provisions of the Convention,
to play the role of litigant in discharging the task
entrusted to them.
At this point there arises the question whether this
application which has been filed by the Minister of Justice
as Central Authority could be taken before the Family Court
with the said Central Authority as litigant having in mind
the above provisions of the Constitution and the Laws
invoked by the advocate for the Respondent which, as I said
above, give powers to Family Courts to deal with matters
which have nothing to do with the present application which
concerns the international abduction of children. And how
the Family Courts would deal with this matter since no such
power to deal with matters that concern the wrongfully
removal and retention of children has been given them either
by the Constitution or by any other Law.
In view of the above I hold the view that this Court has
Jurisdiction to deal with and decide on the above sub judice
matter of the wrongful removal of the minor from the USA to
Cyprus.
In summing up what I have said previously an Order is issued
ordering the return of minor MGM to Warren county of New
York USA.
The above-mentioned Central Authority of the Republic of
Cyprus shall help in the implementation of the present
Order.
The Respondent to pay the cost that will be required for the
said return
A true copy
(Sgd) G. Mettouris
Registrar D.J.