Italy – Canetti vs Thorpe – 199 (Article 15) CANETTI v THORPE. The Father applies to the English court for the return of the child from England. The English court issued an order asking the Italian court to provide an article 15 declaration attesting to weather the minor child is being wrongfully retained out of the Italian jurisdiction. The Italian court declared that the child was not wrongfully retained out of the Italian jurisdiction pursuant to article 3 of the Convention.
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Canetti vs Thorpe (Italy 1999)Milan Juvenile Court No 74/99
27 International Abduction (Italy 1999)
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[TRANSLATION]
MILAN JUVENILE COURT
VIA LEOPARDI 18 – 00123 MILAN
Proceedings no. 74/99
001 The Milan Juvenile Court, in Chambers, in person of
the following Judges:
Dr. Mario Zevola President
Dr. Ely Marino Judge
Dr. Paola Bellotti Honorary Judge
Dr. Umberto Mazza Honorary Judge
issues the following
DECREE
regarding the application of Mirko Canetti, represented by
Roberta Ceschini of the Rome Court and domiciled at the
office of Michele Parise in Milan, Via C. Botta 4.
Mr. Canetti is the father of the minor
SUSHEELA CANETTI, born in London on 15.03.1989
002 Mr. Canetti asked that the Court issue an article 15
declaration pursuant to the Hague Convention of 25 Oct 1980,
providing to the London High Court, Family Division,
explanations as to the custody rights of minor children of
unmarried and non cohabiting parents, pursuant to art. 317
bis of the civil code.
003 The Court read the defensive brief filed by Mrs.
Antonella Maria Robustelli Thorpe, mother of the minor,
represented by Giulia Zambolo and domiciled at her offices
in Milan, Via Bianca Maria 11.
004 The Court also interrogated both parties and found
that:
005 1. In September 1998 Mirko Canetti applied to the
London High Court pursuant to the Hague Convention
of 25 Oct 1980 asking a return order concerning
his natural daughter Susheela Canetti, which he
affirmed to be wrongfully retained by the mother
in violation of his custody rights.
006 2. The High Court, in order to facilitate the
decision regarding the Italian custody rights,
issued an order dated 24 Dec 1998 asking that the
Italian Court, in the presence of both parties,
provided an article 15 declaration pursuant to the
Hague Convention attesting whether the minor is
being wrongfully retained out of the Italian
jurisdiction.
007 3. It has been ascertained that the parents do not
cohabit since July 1997, when the mother moved to
London with both children (the parties have
another daughter, Aliai, born in Milan on 09 Mar
1996), although Mr. Canetti affirms that Mrs.
Thorpe was supposed to go to London for an holiday
and that only in September she informed him that
she intended to definitively stay in London.
008 4. It has been ascertained that Susheela returned to
Italy only for the purposes of attending her usual
school.
009 5. During the school period Susheela cohabited with
the father in the house belonging to the mother in
Milan, Piazzale Lagosta 10. The mother affirms
that she allowed Mr. Canetti to stay in the house,
due to the fact that he did not have a proper
house to live with the daughter. In fact, Mr.
Canetti is currently resident in Milan, Via San
Gregorio 30 together with his parents with whom he
manages an hotel having the same address. Mrs.
Thorpe left Susheela with the father with the sole
purposes to let her attend the Milan Steiner
school, since she could not find a place in the
London Steiner school, Rudolf Steiner Kings
Langley.
010 6. However the mother visited Susheela for long
periods, coming to Milan together with the other
daughter on the following dates: from 20 Sep 1997
to 15 Oct 1997, from 16 Dec 1997 to 07 Jan 1998;
from 13 Mar 1998 to 02 Apr 1998 (the child stayed
in London with the mother until 20 Apr 1998), and
from 30 May 1998 to 15 Jun 1998.
011 7. From 15 Jun 1998 to 10 Jul 1998 the child stayed
in London with the mother and was on holiday with
the father and her sister from 10 Jul 1998 to 15
Aug 1998 then returning to London with the mother.
012 8. Since 15 Aug 1998 the minor is in London with the
mother where she is attending the school Rudolf
Steiner Kings Langley.
013 9. There is no Court decision or agreement according
to which it can be deemed that the minor was given
to the custody of one or another parent.
014 10. It has been ascertained that, when the
cohabitation between the parents finished the
father accepted that at least Aliai lived with the
mother. In addition, it is clear that the fact
that Susheela stayed in Italy, in the mother’s
home, was only due to the attendance of the Milan
school, as there was no reason to keep Susheela
separated from her sister. The mother made several
visits to Susheela, staying in the house for long
periods.
015 Art. 317 bis cannot be applied to the present matter,
notwithstanding Mirko Canetti sustains to have custody of
Susheela pursuant to such article. In fact the minor was non
exclusively cohabiting with the father, but was living with
him in the mother’s home and the mother was present in the
house for five months and a half out of nine.
016 Pursuant to the above the Court states that Susheela
is not being wrongfully retained in London pursuant to art.
3 of the Hague Convention of 25 Oct 1980.
017 BASED ON THE ABOVE the Court declares that the minor
Susheela Canetti has not been wrongfully retained out of the
Italian jurisdiction pursuant to art. 3 of the Hague
Convention of 25 Oct 1980.
To be served to the parents at the elected domicile and the
public Prosecutor
Milan March 24, 1999
Signed
Filed in March 31, 1999