JUSTICE
JUSTICE AS CENTRAL AUTHORITY ACCORDING TO LAW 36/86 ON BEHALF
LOIZOS MICHAEL ELLINA, Respondent-Applicant. (Civil Appeal 7560). The European Convention on Recognition and Enforcement
Decisions Concerning Custody
Children and Restoration
Custody
Children-Art. 10.1(b)-Ambit
. International Conventions-Mutuality, principle
. Loizos Ellina is a British subject
Cypriot origin, resident
the United Kingdom. Elena Ellina is a Cypriot national. They got married in 1984. Following their marriage they settled in the United Kingdom. In 1985 a girl was born to them. In the course
time relations between them deteriorated. Unknown to the father and contrary to his wishes, Elena brought the child with her to Cyprus. The child was a British subject and a resident
the United Kingdom. The father reacted swiftly. Upon petition by him to the High Court in England he obtained an order under the European Convention on Recognition and Enforcement
Decisions Concerning Custody
Children and Restoration
Custody
Children. The order was for the return
the child to the United Kingdom. Both the United Kingdom and Cyprus are signatories to the said Convention. The Minister
Justice
the Republic
Cyprus, the Central Authority under the Convention, applied to the District Court
Larnaca for recognition and enforcement
the English order. The District Court granted the application. Hence this appeal. The District Court held, inter alia, that, notwithstanding the reservation made by the United Kingdom under Art. 17.1
the Convention, the provisions
.1, which provide for additional grounds
denial
recognition
a foreign order, are not applicable to the case in hand. Held, dismissing the appeal:
mutuality, an English order may be opposed in Cyprus on the same grounds as a Cyprus order can be opposed under the Convention in the United Kingdom. Hence the trial Court misdirected itself in declaring Art. 10.1 to be inapplicable.
the facts put before the trial Court, does not disclose any noticeable change in the circumstances
the child or the family.
.1 expressly enjoins that changes resulting from here mere change in the residence
the child after improper removal, should be excluded from the range
relevant circumstances. Enforcement and recognition
an order may be denied under Art. 10.1(b) only in the face
(a) circumstances relevant to the well-being
the child, such as to render (b) the decision to return the child manifestly antagonistic to the welfare
the child. Only an extreme change
relevant circumstances may produce that result, a corollary
the employment
the word >, that is, beyond controversy. Appeal dismissed. No order as to costs. Appeal. Appeal by respondent against the judgment
the District Court
Larnaca (Arestis, D.J.) dated the 6th February, 1988 (Appl. No. 3/87) whereby an order for the recognition and enforcement
the order
High Court
Justice in England (Family Division) was made ordering the return
the child to the United Kingdom. P. Demetriou, for the appellants. A. Evangelou, Senior Counsel
the Republic, for the respondent. Cur. adv. vult. A. LOIZOU P.: The judgment
the Court will be delivered by Pikis, J. PIKIS J.: Loizos Michael Ellina is a British subject
Cypriot origin. He is a resident
the United Kingdom. Elena Ellina is a Cypriot national, the holder
a Cypriot passport. They got married in 1984 (ecclesiastically in Cyprus accompanied by a civil marriage in the United Kingdom).Following their marriage they settled in the United Kingdom. In 1985 a girl was born to them. In the course
time relations between them deteriorated. Elena felt unhappy in the United Kingdom and longed to return to Cyprus. In April 1987 she gave vent to her wishes and returned to Cyprus. Unknown to the father and contrary to his wishes, she brought the child with her to Cyprus. The child was a British subject and a resident
the United Kingdom. The father reacted swiftly; he petitioned the High Court in England (Family Division) to order the return
the child to England. The Petition was founded on the provisions
the European Convention on Recognition and Enforcement
Decisions Concerning on Recognition and Enforcement
Decisions Concerning Custody
Children and Restoration
Custody
Children (hereafter referred to as the Convention), to which both the United Kingdom and Cyprus are signatories. Cyprus ratified the Convention that became part
our municipal law (Law 36/86). The High Court
England ordered, pursuant to the provisions
the Convention, the return
the child to the United Kingdom on the ground that she had been illegally removed from its jurisdiction. On 28th May, 1987, the order was addressed to the appropriate authority
the Cyprus Republic, the Ministry
Justice for implementation. The Minister
Justice, the central authority under the Convention, applied to the District Court
Larnaca, where the mother and the child resided, for recognition and enforcement
the English order. On 27th May, 1987, the hearing
the application for recognition and enforcement was suspended pending the determination
Custody Application 11/87 submitted to the District Court by the mother. On her return to Cyprus the mother initiated proceedings for the custody and care
the child. The Minister successfully appealed against the order
the District Court
Larnaca suspending the application for the recognition and enforcement
the order
the High Court
England. The Supreme Court decided that the District Court had no jurisdiction to suspend the proceedings for recognition and enforcement
the English order and remitted the case back to the District Court
Larnaca to be dealt with according to law (Civil Appeal 7450- The Minister
Justice, as the Central Authority under Law 36/86, on behalf
Loizos M. Ellinas,
London v. 1. Elena Ellina,
London; 2. Charalambos Papakyriacou,
Larnaca). Art. 10.2.
the Convention was inapplicable, it was pointed out, in the absence
the pre-conditions rendering it operative. At the resumption
the hearing
the application for recognition and enforcement
the English order, the District Court
Larnaca took the view that Art. 10.1
the Convention was also inapplicable, notwithstanding the reservation made by the United Kingdom under Art. 17. 1
the Convention. The only grounds upon which recognition and enforcement could be denied were those enumerated in Art. 9.1
the Convention, none
which had seen substantiated. In the face
this finding an order for the recognition and enforcement
the English order was made ordering the return
the child to the United Kingdom. The mother appealed contending that the trial Judge was wrong in holding that Art. 10.1 was inapplicable. Consequently the case should, once more, be remitted to the trial Court to examine whether recognition and enforcement
the English order should be denied on the authority
any one or more
the grounds listed in Art. 10.1 Counsel
the Republic espoused the submission that the trial Court erred in ruling that Art. 10.1 was inapplicable. Nonetheless he invited the Court to dismiss the appeal considering that the facts founding the opposition to the enforcement
the English order left unaffected the outcome
the case as the facts (disclosed in the affidavit
the appellant) and circumstances
the case, could not give rise to the legitimate invocation
any
the grounds
opposition enumerated in Art. 10.1. The learned trial Judge erred in holding that Art. 10.1 was inapplicable and was wrong in interpreting the decision
the Court
Appeal (Civil Appeal 7450) as warranting such a finding. The reservation made by the United Kingdom and sequential applicability
The issue had been specifically raised only at the resumed hearing. The Supreme Court in its judgment did contemplate the possibility
.1 becoming applicable in the face
a reservation
a signatory made under Art. 17.1 As a matter
fact, the United Kingdom deposited a reservation simultaneously with the signature
the Convention (20th May, 1980). As a result recognition and enforcement
an order for the return
a child to the jurisdiction
a foreign Court that issued the order may be denied in addition to any other grounds provided for in the Convention, on the basic
the grounds enumerated in Art. 10.1. By the principle
mutuality, an English order may be opposed in Cyprus on the same grounds as a Cyprus order can be opposed under the Convention in the United Kingdom. Hence we conclude that the trial Court misdirected itself in declaring Art. 10.1 to be inapplicable. Art. 10.1
the Convention provides: (a) if it is found that the effects
the decision are manifestly incompatible with the fundamental principles
the law relating to the family and children in the State addressed; (b) if it is found that by reason
a change in the circumstances including the passage
time but not including a mere change in the residence
the child after an improper removal, the effects
the original decision are manifestly no longer in accordance with the welfare
the child; (c) if at the time when the Proceedings were instituted in the State
origin: (i) the child was a national
the State addressed or was habitually resident there and no such connection existed with the State
origin; (ii) the child was a national both
the State origin and
the State addressed and was habitually resident in the State addressed; (d) if the decision is incompatible with a decision given in the State addressed or enforceable in that State after being given in third State, pursuant to proceedings begun before the submission
the request for recognition or enforcement and if the refusal is in accordance with the welfare
the child>>. Paragraphs (a), (
relevant facts associated with >. Careful consideration
the facts put before the trial Court, especially those set out in the affidavit
the mother, does not disclose any noticeable change in the circumstances
the child or family. Para. (b)
.1 expressly enjoins that changes resulting from mere change in the residence
the child after improper removal, should be excluded from the range
relevant circumstances. The facts deposed to by the mother are in substance directed towards eliciting changes resulting from the change in the residence
the child as a result
her improper removal. As such they are irrelevant. Her reasons for bringing over the child to Cyprus are primarily related to what she perceives to be her welfare and the way that such well being may benefit her infant daughter. Enforcement and recognition
an order may be denied under Art. 10.19(b) only in the face
(a) circumstances relevant to the well-being
the child, such as to render (b) the decision to return the child manifestly antagonistic to the welfare
the child. Only an extreme change
relevant circumstances may produce that result, a corollary
the employment
the word >, that is, beyond controversy. The Convention, we may remind, set out to achieve an important goal to protect children from the capricious conduct
parents taking the form
removal
the child from the country
its residence as a result
a parental conflict. The Convention aims to lessen hardship to children upon the break up
a marriage. In addition to its unsettling effects, unlawful removal
a child has the inevitable consequence
loosening the ties between the child and the parent who stays behind. The Convention aims to put an end to the unlawful removal
children. The child and its custody must not be made a bone
contention among disputing parents. The welfare
the child should, after separation too, unite parents in common endeavours for its well-being. In that way they mitigate the unavoidable loss and hardship to a child occasioned by the break up
the marriage
its parents. Art 14
the convention enjoins contracting States to improvise an expeditious procedure for the recognition and enforcement
decisions relating to the custody
child. The Courts
the Republic must no doubt deal with applications for recognition and enforcement in that spirit and endeavour to determine them as speedily as possible. The appeal is dismissed; the order for recognition and enforcement
the English order is affirmed. There will be no order as to costs. Appeal dismissed. No order as to costs. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο
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