Ne exeat orders in Greek family law

A recent judgment of the Serres 1^st Instance Court ruled that a noncustodial parent is not entitled to ask for a ne exeat order against his ex-wife, in order to avoid the relocation of his child to Germany. The judgment follows a small number of earlier decisions, which put forward the definition provided for by Art. 5 of the Hague Child Abduction Convention. At the same time, the judgment invokes Art. 12 of the 1966 International Covenant on Civil and Political Rights, dealing with the freedom of movement.

[Serres 1^st Instance Court Nr. 157/2014, unreported]

THE FACTS:  The parties are both Greek nationals, living in the city of Serres, Northern Greece. They have a son born into marriage in 2007. Following marital discords, they decided in 2012 to file for a divorce in mutual consent. At the same time they agreed on certain conditions regarding their common child. In particular, it was agreed that the mother will be the sole custodial parent of their infant child, whereas the father will enjoy access rights. In addition, it was established that the child’s domicile will be the city of Serres. Following some tense discussions between the spouses sometime in 2013, the father became aware of the mother’s intention to relocate the domicile of their common child to Germany, where she could be assisted by her parents living in the town of Bielefeld. He therefore filed for an injunctive relief, requesting the court to establish the temporary residence of the child, and to issue a ne exeat order, both for the mother and their common child. 

THE RULING: The court dismissed the application on the following grounds: The right to determine the child’s place of residence forms part of the rights to custody according to Art. 5 a Hague Child Abduction Convention. The same rule prevails in Greek law: Pursuant to Art. 1518 Civil Code, the custody of the child includes (among other things) the right to determine the child’s place of residence. The court found no abuse of law in the mother’s intention to relocate the child. It was not proven by the applicant that her main purpose was to hinder the contact rights of the father. Obviously the latter will face difficulties in the exercise of his well established access rights; however, this is not reason enough to issue a ne exeat order, but rather to rearrange its details by filing a separate application to amend the existing agreement, in light of the forthcoming developments. 

COMMENTS: It is common ground in pertinent family law cases, that both spouses retain parental responsibility rights, whereas the mother assumes custody, and the father is granted contact rights. The majority of those cases lacks any international element, so that issues like the one presented does not occur. Nevertheless, this judgment demonstrates that cross border aspects are still lurking in the shadows, even if none of the spouses is a foreigner. What’s more interesting, is that the mere agreement to establish the child’s place of residence does not prevent the custodial parent to relocate the child abroad, or, putting it the other way around, to ensure that the noncustodial parent’s contact rights will not be undermined through an open or intended attempt of the custodial parent to remove the child out of the jurisdiction.

In general terms, Greek courts are reluctant to grant ne exeat orders for two reasons:

·          The first has been described above: courts proceed to a narrow interpretation of custody, by excluding ne exeat rights from its ambit. In other words, they consider this to be an issue, which should be examined under Art. 5 b (rights of access), not Art. 5 a (rights of custody) of the Hague Convention. This approach runs contrary to the famous Abbott v Abbott ruling of the US Supreme Court. Truth is that the point is not free from doubt.  Truth is also however, that the existing sample of case law is far from being representative; the findings of my research show less than 10 judgments tackling with the matter, none of which being issued on a Supreme Court level, and only one in appellate proceedings.

·         The second point is equally challenging: Following a pioneering judgment from 2009, courts invoke Art. 12 of the International Covenant on Civil and Political Right, which sets forth that “[e]veryone has the right to freedom of movement and to leave and enter his own country”. On the basis of the above [Greece has not ratified the 4^th additional Protocol to the ECHR], courts consider ne exeat orders to be equivalent of a deprivation of the rights protected under this provision, i.e the freedom of movement of the custodial parent.

The red line for Greek case law is the common exercise of custody rights. Once it has been proven, that both spouses are equally responsible for the child’s care, ne exeat orders may be granted, unless one of the parents refrains from any objection to the child’s relocation.  

Time will show whether this position will be maintained by Greek courts. The conclusion drawn from this ruling is however evident: Do not give away your rights of custody, if you don’t want to be taken by surprise in the short or the long run by your ex-spouse…

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.

Interpretation of Art. 13 of the 1980 Hague Abduction Convention by the Supreme Court

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