Italy – Canetti vs Thorpe – 1999(Article 15) (On appeal) CANETTI v THORPE.The Italian court declared that the child was not wrongfully retained out of the Italian jurisdiction pursuant to article 3 of the Convention. The father appeals the decision of the court. The court “rejects the appeal filed by Mr. Mirko Canetti against the decree of the Milan Juvenile Court dated March 24, 1999”.
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Canetti vs Thorpe (Italy 1999)Milan Court of Appeals
28 International Abduction (Italy 1999)
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MILAN COURT OF APPEALS
SECTION FOR MINORS
In Chambers with the following Judges:
Dott. Camillo Passerini President
Dott. Carlo Maria Garbellotto Judge
Dott. Alberto Pezzani Judge
Dott. Carla Gaddi Honorary Judge
Dott. Franco Martelli Honorary Judge
regarding the appeal of the decree of the Milan Juvenile
Court dated [date missing]
Filed by
MIRKO CANETTI
represented by Attorney Roberta Ceschini
against
ANTONELLA ROBUSTELLI
represented by attorney Giulia Zambolo
issued the following
DECREE
WHEREAS
001 1) Mirko Canetti is the father of the minor Susheela
Canetti, born on March 15, 1989. Mirko Canetti cohabited,
without being married, for ten years, with Antonella Thorpe.
On January 9, 1999 Mr. Canetti filed a petition with the
Milan Juvenile Court seeking issuance of a decree
ascertaining that the mother was illegally retaining said
minor in London following the August 1998 holidays.
002 2) Such a decree was to be issued pursuant to article
15 of the Hague Convention of 25.10.1980, ratified in Italy
with Law 64/94, and had been requested by the London High
Court of Justice where Mr. Canetti started a proceedings for
the return of Susheela Canetti to Italy.
003 3) On March 24, 1999 the Milan Juvenile Court, after
having interrogated the parties, issued a decree stating
that the mother was not illegally retaining the minor.
004 4) On May 7, 1999 Mr. Canetti filed an appeal before
the Milan Court of Appeals on the following grounds: a)
wrongful interpretation of the fact; b) lack of reasoning of
the appealed decree; c) wrongful interpretation of article
317 bis of the civil code.
005 5) Mrs. Thorpe filed a defensive brief on July 15,
1999.
006 6) At the hearing of July 22, 1999 the parties have
been interrogated by the Court.
007 7) The Public Prosecutor’s opinion was that the
appeal was to be rejected.
REASONING
008 The London High Court of Justice suspended the Hague
proceedings and requested that the Italian Court issued “a
final and reasoned declaration as to the rights of custody
of an unmarried father”.
009 Mr. Canetti took immediate action before the Milan
Juvenile Court in order to obtain an Article 15 declaration
pursuant to the Hague Convention. In his petition Mr.
Canetti mentioned art. 317 bis stating that he had sole
custody of his daughter Susheela and that Mrs. Thorpe was
violating such custody right pursuant to art. 3 of the Hague
Convention. The same argument has been reiterated in the
appeal.
The Court has a different opinion.
010 Article 317 bis is a non-mandatory provision as the
parental authority on children of unmarried parents is
provided by art. 261 and 316 of the civil code. The
provision of art. 317 bis, in order to establish who has
parental authority on children of unmarried parents,
focalize on the factor of cohabitation with both or one of
the parents. However art. 317 bis does not automatically
gives parental authority to parents. In fact, second
paragraph of article 317 bis provides that the Judge can
also exclude parents from parental authority even if
cohabiting with the minor.
011 There is no doubt that art. 317 bis generally
acknowledges the judicial value of a family with unmarried
parents. However the sole and main purpose of art. 317 bis
is that of protecting the minor’s interest, which is
prevailing on the interest of the family to which the minor
belongs. Thus, art. 317 bis interpretation must be
conditioned upon the interest of the minor, which is to say
that the Court in case of conflict between unmarried
parents, can differently provide with respect to parental
authority.
012 In the present case the Juvenile Court was right in
stating that it is positive for Susheela to have joined her
sister Aliai, resident in London with the mother, also
considering that Susheela has frequently visited the father
in Italy.
013 When Susheela was allegedly retained in London (August
1998) the father did not have any exclusive parental
authority on Susheela, either by law or by judicial
decision. Any conflict on the point between the parents
should have been settled before the competent Juvenile
Court.
014 In conclusion, since Mrs. Thorpe has not violated art.
3 of the Hague Convention, the appeal is to be rejected.
015 The analyses of the fact leads us to the same
conclusions.
016 The chronological events show that Mr. Canetti had
agreed that the mother and the children moved to London in
June 1997. Otherwise one cannot explain why he did not take
any judicial initiative. When Susheela returned to Italy in
September 1997 it was for the sole purpose of attending the
Steiner school in Milan. Susheela lived in Milan until the
end of the school year (15 June 1998) in the apartment of
Piazzale Lagosta 10 with the father (officially resident at
Via San Gregorio no. 30) and was frequently visited by the
mother (owner of the apartment) and by the sister Aliai.
The Court believes that Susheela never ceased cohabiting
with her mother, intending the term “cohabitation” in the
wide meaning of “living with” and not mere physical
cohabitation, and that Mr. Canetti accepted it. Mr. Canetti
was not entitled to any exclusive cohabitation for the
period September 97 – September 98 pursuant to art. 317 bis
and therefore was not entitled to exclusive parental
authority. In addition, Mr. Canetti himself confirmed that
Susheela returned to Italy for the sole purpose of attending
the Steiner school in Milan (school year 1997-98) when
interrogated by the Juvenile Court on March 23: “I went to
London to take the child in September 1997 to allow her to
attend the school she attended during the preceding years”.
017 For the above reasons the Court, also based on the
opinion of the Public Prosecutor, hereby rejects the appeal
filed by Mr. Mirko Canetti against the decree of the Milan
Juvenile Court dated March 24, 1999.
Each part will pay for its legal costs.
Milan, in Chambers on July 22, 1999
The Judge Alberto Pezzoni
The President Camillo Passerini
[stamp of the Milan Court of Appeals]
deposited on July 29, 1999