Friday, 23 May 2014

Objection of children according to Art. 13 (2) of the 1980 Hague Abduction Convention

This is a judgment of the Thessaloniki Court of Appeal on the application of Article 13(1) b) & (2) of the 1980 Hague Convention. The interesting part is the personal interview that the CoA judge conducted with the children, which was decisive in her final verdict [Thessaloniki CoA 1453/2012], unreported

The facts: The proceedings concerned two children born in Germany in April 2004 and July 2005 to Greek parents. The latter had met in Stuttgart and concluded marriage in December 2002. The father worked as a barman in a night club and the mother cared for the children and their household. Their son visited an elementary school, whereas their daughter was going to the Kindergarten.

Since 2010 the spouses were not in good terms, due to the husband’s egoistic, impulsive, and sometimes aggressive behavior towards his wife in the presence of their children. March 2011 they decided to break their marital cohabitation. The father moved from the house and stayed at his parents, who lived in the same city. He continued to pay the rent, and was seeing his children on a daily basis. During April 2011 the mother travelled to Greece, in order to spend Greek Eastern holidays at her parents’ house. One day before the scheduled return to Germany, the mother announced to the father that she had no plans to return to Stuttgart. The father expressed immediately his direct objection. The day after he reported the matter to the Amtsgericht Stuttgart.

The father petitioned for the return of the child under the 1980 Hague Child Abduction Convention. The Edessa First Instance Court accepted the application and ordered the return of the child to Germany (Case Nr. 747/2011, unreported).
The mother appealed.  

The ruling: Appeal upheld and return refused; the retention was wrongful, but a return to Germany would expose the child to a grave risk of physical, and most importantly, psychological harm.  In addition, it was proven that the children, who possess the necessary age and maturity, object to being returned to Germany.

The Court noted that the retention of the children in Greece was clearly wrongful, according to the 1980 Hague Child Abduction Convention (Art. 3), because it violated the father's right of custody pursuant to German law, which was applicable in the case at hand.

I. Grave Risk - Art. 13(1) b): The Court noted that the children were visiting the local elementary school, and they have already completed successfully their respective courses, without facing any difficulties in terms of their general social adaptation in the new educational environment. This was affirmed by a document signed by the school’s director and the children’s teachers. The children were also visiting a private school for English, and modern dance classes at a local cultural association.

The Court further noted that the children were fully adapted to the Greek way of life and their social environment, being fluent in Greek, and having a perfect relation to their mother and all her/their relatives.

Finally, the court held that by ordering the return of the children to Germany, it would expose them to physical or psychological harm or otherwise place them in an intolerable situation, pursuant to Art. 13 (1) b of the Convention.

II. Child’s objection - Art. 13(2): The judge established personal contact with the children, spending an hour talking with them, in order to explore their views and desires with respect to the country and the environment in which they wish to live in. Initially, the children expressed the wish to stay with both parents under the same roof, however “without any fights between them, as occurred lately in Stuttgart”. Still, being conscious of the fact that the above is not possible, they clearly and directly said that they prefer to stay at their mother’s new house and in close proximity with their grandparents, uncles and cousins in Greece. At the same time they expressed the wish to be able to see their father as frequently as possible, however not in Germany, but in Greece, and to talk with him every day on the phone. Both children seemed capable of comparing the differences between Greece and Germany (at least from their point of view and in regards to the issues affecting their personal well being); they seemed to be satisfied and emotionally secured in their daily routine in Greece. A strong bond had developed between mother and children. At the same time they have no complaints against their father, save his previous way of life in Stuttgart; they finally stated that they feel very well living in Greece, and they wished that their father could live somewhere close. The above cannot be considered as a result of temporary emotional pressure from their mother; it rather constitutes an expression of genuine sentiments, and it is the fruit of their personal thoughts and reactions.

Finally, the court held that the children possess the age and maturity at which it is appropriate to take account of their views, pursuant to Art. 13 (2) of the Convention.

Comments: This is not the first time a Greek court applies the rule of Art. 13 (2) of the Hague Abduction Convention [similarly Thessaloniki CoA 101/2006, Armenopoulos 2007, 1509 et seq., with respect to a 10 years old child]. The interesting part relates to the age of the children being interviewed: They were 8 & 7 years old respectively. There’s an ongoing debate as to the maturity of children under 10 years old. This judgment sets new standards. It is however a different question, whether they will survive the test time.