ITALY – COLLI – 1996

ITALY – COLLI – 1996 (Return denied while an “appraisal is run”) COLLI v COLLI. The court did not order the children returned, but rather ordered an appraisal to better understand the relationship between the mother and father. This “runs contra to the express purpose of the Convention, which is to return a child to his or her ‘habitual residence’ (clearly the UK here) and let the courts of the ‘habitual residence’ hear evidence on the merits of the case” (See Mr. Hilton’s footnotes)

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Colli v Colli (Italy 1996)Turin Juvenile Court, 28 Dec 1996
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TURIN JUVENILE COURT

The Court, in Chambers in person of the following Judges:

Dr. Camillo Losana, President
Dr. Daniela Bacchetta, Judge
Dr. Maria Pai Cornaglia, Honourary Judge
Dr. Roberto Maurizio, Honourary Judge.

Having read the request of enforcement, filed by Mrs. Margareth
Catherine Colli and supported by the Public Prosecutor, of the
order dated 24 Jun 1996 issued by Judge Tynas of the English High
Court, relating to the minors Jessica and Sean Colli, born in
Novara on 3 December 1991 and 24 Jul 1990 respectively, of said
Francesca Margareth and Paolo Colli

hereby notes

The investigating Judge, as requested by the applicable law,
convoked the father of the minors, Mr.. Paolo Colli, who declared:

— to be aware that the order dated Jun 24, 1996 giving him
summer visitation rights over the minors, also provided that
said minor were to be returned to the mother on August 30,
1996, as the mother has full custody over said children
pursuant to an order of the English Court dated November 30,
1995, such order having been enforced by the Turin Juvenile
Court pursuant to the Bruxelles Convention.

— to have no intention to comply with such order as the children
were living in poor conditions with their mother, who uses
drugs and cohabits with a man condemned for commerce of drugs.

— to have tried to comply with such English order and to have
been stopped by the children who appear traumatized by the
sole idea of returning to England.

— to have requested to the English Judge that the custody order
be reversed in his favor.

Considering the above serious statements, the Italian Judge waited
to be informed of any further decisions of the English Judge. The
mother’s lawyer filed with the Court a copy of a decision of the
English Court dated October 23, 1996 which rejected the father’s
request for reversal of custody.

Thus the Court believes that the mother must file an original copy
of the English Order dated October 23, 1996 proving whether such
order is definitive. In case such order can be appealed or
modified, there would be no point in letting the children return
to England and then return to Italy again.

The also believes that the matter should be more thoroughly
examined to ascertain how it is that such children were born in
Italy, lived in Italy and were then moved to England, to be
subsequently returned to Italy.

In addition, the Social Services of Novara report that the minors
are living in very good conditions with the father and his family.

In order to better understand the relationship of the children
with the father and the mother it is necessary to run an
appraisal. The above is not aimed to re-discuss the merits of the
case. This decision is only aimed to verify whether the English
Court issued any decision which revokes the custody in favor of
the mother.

Based on the above

The Court suspends the decision regarding the enforcement of the
English Order dated June 24, 1996 regarding the minors Jessica and
Sean Colli. The mother of the minors is invited to file with the
Court, through her lawyer, the original of the English Order dated
October 23, 1996 regarding the minors, indicating whether such
order is definitive. The mother is also invited to apply for the
enforcement of such order in she deems it appropriate. The Court
orders that in any event a psychological appraisal be run on the
minors to ascertain the nature of their relationship with the
father and the Mother.

Turin, 28 December 1996.

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COMMENTS BY Wm. M. Hilton, 31 Jan 1997

In her cover letter transmitting this decision to Hilton House Web
Site, Attorney Roberta Ceschini stated the following:

“I have filed an appeal to such order on the basis that, according
to the Hague Convention, the Juvenile Court of Turin is not
entitled to ‘suspend’ the decision and run an appraisal, i.e.,
enter into the merits of the case. According to the Italian law
which ratified the Hague Convention, the Juvenile Court withn 30
days from request is only entitled to either order the return or
deny the request.”

With all due respect to the Italian Court, this decision does run
contra to the express purpose of The Convention, which is to
return a child to his or her “Habitual Residence” (Clearly the UK
here) and let the Courts of the “Habitual Residence” hear evidence
on the merits of the claim.

If the Italian Court feels that the safety of the child would be
jeopardized in the interim, the Court could request that
undertakings be made by the mother to provide this protection.
See, e.g., In re M (Minors) (Child abduction: Undertakings) Court
of Appeal [The London Times – Law Report – 15 Aug 1994] (Available
on Hilton House Web Site as In_re_m_uk.txt) and REPORT ON HAGUE
CONVENTION OPERATIONS by the Child Abduction Unit – November,
1995, by The Lord Chancellor’s Child Abduction Unit, Central
Authority for England & Wales (Available on Hilton House Web Site
as Undertaking_rpt.txt).

See also Friedrich v Friedrich (6th Cir. 1996) 78 F.3d 1060, which
opines that Art. 13(b) type of arguments only apply if the
requesting country is in a state of anarchy (Bosnia, for example)
or their courts cannot or willnot protect the child. (Available
on Hilton House Web Site as Friedrich_3_fed.txt).

One should also review the brief on Equal Dignity of courts which
argues that, under The Convention, the Courts of one fourm are as
capable of the courts of another forum when a decision as to the
best interests of the child is to be made. (Available on Hilton
House Web Site as Equal_dignity_mem.txt).