Wednesday, 17 September 2014

Ne exeat orders in Greek family law

A recent judgment of the Serres 1st 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 1st 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 4th 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…