Σ. Δ. ν. Π. Σ., Αρ. Αίτησης: 12/2017, 5/12/2019

(2018)UKSC 8

(2019)AC 1] Η σχετικότητα της υπό εξέταση περίπτωσης με την πιο πάνω Αγγλική Εφετειακή απόφαση In Re C έχει ως αποτέλεσμα την παράθεση πιο κάτω αυτούσιου μεγάλου μέρους της ως ακολούθως: «1. This appeal concerns the Hague Convention on the Civil Aspects of International Child Abduction (25 October 1980) ("the Abduction Convention"). It raises general questions relating to:

(1)the place which the habitual residence of the child occupies in the scheme of that Convention, and

(2)whether and when a wrongful retention of a child may occur if the travelling parent originally left the home State temporarily with the consent of the left-behind parent or under court permission, and the agreed or stipulated time for return has not yet arrived. In addition, the facts of the present case raise particular questions whether the trial judge's conclusions were properly open to him upon: (

1. a)the habitual residence of the children in the case; and (
2. b)whether a wrongful retention in fact occurred, and if so when. The 1980 Hague Abduction Convention 2. The Abduction Convention is in force for some 97 States. Its preamble records the desire of those States: "to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence ." Article 1 states the objects of the Convention as follows: "(
3. a)to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and (
4. b)to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States." 3. The general scheme of the Convention is to enable a left behind parent to make this application in the State to which a child has been taken, seeking return of the child. States are required to set up Central Authorities to transmit and receive such applications. Where the removal from the home State, or the retention in the destination State is wrongful, the courts of the recipient State are required by article 12 to order the return of the child "forthwith". Apart from a saving provision in article 20 which permits refusal to return where such would amount to a breach of the requested State's fundamental principles of human rights, that obligation to return is subject to very limited exceptions which, if present, enable (but do not require) return not to be ordered. Those exceptions are found in article 13 (rights of custody not being exercised; consent or acquiescence of the left-behind parent; grave risk that return would expose the child to physical or psychological harm or would place him/her in an intolerable situation; child's objections), and in article 12 (child has been in the recipient State for one year from the wrongful removal or retention and is now settled there). Where prompt notice of wrongful removal or retention is received, the recipient State is required by article 16 to abstain from any decision on the merits of rights of custody, unless it is determined that return is not to be ordered. Moreover, States are required to act fast on any request. By article 11 an initial period of six weeks is stipulated, and the applicant or his Central Authority are entitled to an explanation from the recipient State if that period is exceeded. Thus the return is summary and its object is to enable merits decisions as to the child's future to be made in the correct State, rather than in the State to which the child has been wrongfully taken, or in which he/she has been wrongfully retained. The general purposes and scheme of the Convention are expanded upon in an explanatory report by Professor Elisa Pérez-Vera on the work of the drafting conference, which report accompanied the original framing of the Convention; it is accordingly an aid to construction recognised in international law and in particular under article 32 of the Vienna Convention on the Law of Treaties

(1969). In England and Wales the Convention is given domestic effect by the Child Abduction and Custody Act 1985, section 1

(2). 4. Four key concepts underlie the Convention: wrongful removal, wrongful retention, rights of custody and return. The principal provisions which require attention in the present case, apart from the preamble and article 1, set out above, are articles 3, 4, 5, 12 and 16. So far as relevant, they say: "Article 3 The removal or the retention of a child is to be considered wrongful where - (

1. a)it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (
2. b)at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. ." "Article 4 The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years." "Article 5 For the purposes of this Convention - (
3. a)'rights of custody' shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence; (
4. b)[rights of access]" "Article 12 Where a child has been wrongfully removed or retained in terms of article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. ." "Article 16 After receiving notice of a wrongful removal or retention of a child in the sense of article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice."» ....................................... The significance of the two general questions 11. In the simple paradigm case of wrongful removal, one parent will have taken the child from the State where s/he is habitually resident to a destination State. Similarly, in the simple paradigm case of wrongful retention, one parent will have travelled with the child from the State of habitual residence to the destination State, for example for an agreed fortnight's holiday (and thus without the removal being wrongful), but will then wrongfully have refused to return. In each of those paradigm cases, the child will have remained habitually resident in the home State. An application under the Abduction Convention will be made in the destination (or "requested") State for the return of the child to the State of habitual residence. The return will be a summary one, without investigation of the merits of any dispute between the parents as to custody, access or any other issue relating to the upbringing of the child (article 16). Such merits decisions are for the courts of the State of the child's habitual residence. 12. In some cases, however, it is possible that by the time of the act relied upon as a wrongful removal or retention, the child may have acquired habitual residence in the destination State. It is perhaps improbable in the case of removal, but it is not in the case of retention. It may particularly happen if the stay in the destination State is more than just a holiday and lasts long enough for the child to become integrated into the destination State. It is the more likely to happen if the travelling parent determines, however improperly, to stay, and takes steps to integrate the child in the destination State. Even in the case of wrongful removal it may be possible to imagine such a situation if, for example, there had been successive periods of residence in the destination State, followed by a removal from the State of origin which infringed the rights of custody of the left-behind parent. 13. In England and Wales at least, this possibility did not in practice arise in the past, since it was regarded as axiomatic that one parent could not by unilateral action alter the habitual residence of the child. This proposition dated from a dictum of Lord Donaldson MR in In re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, 572, and the decision of Wall J in In re S (Minors) (Child Abduction: Wrongful Retention) [1994] Fam 70, which was approved by the Court of Appeal in In re M (Abduction: Habitual Residence) [1996] 1 FLR 887, 892, and, as Baroness Hale explained in A v A (Children: Habitual Residence) [2014] AC 1 at para 39, it was thereafter taken for granted. Such a proposition is, however, not generally adopted in other countries, including the United States, sits uneasily with the equally axiomatic principle that habitual residence is a question of fact, not law, and is difficult to accommodate within the European approach which requires an examination of integration, as exemplified in Proceedings brought by A (Case C- 523/07) [2010] Fam 42 and Mercredi v Chaffe (Case C-497/10PPU) [2012] Fam 22, and which is binding on this country via Council Regulation (EC) No 2201/2003 ("Brussels II Revised"): see the analysis of Baroness Hale in A v A. It was recognised in In re H (Children) [2015] 1 WLR 863 that such a rule could not survive. 14. If the habitual residence of the child may have changed to the destination State by the time of the wrongful act of removal or retention relied upon, then it becomes necessary to know whether the summary procedure of the Abduction Convention remains available in such a case or does not. Hence the first general question. If the answer is that it is not available, because the Abduction Convention pre-supposes an application made in a destination State which is not the State of habitual residence, then the second general question becomes of importance. It becomes important because deliberate acts aimed at integrating the child in the destination State may well be undertaken by the travelling parent once he has decided not to honour his obligation to return to the State of origin. It will then matter whether such acts, or other manifestations of his decision, can themselves amount to wrongful retention. If they can, then wrongful retention may occur before any change of habitual residence has been achieved and whilst the child is still habitually resident in the State of origin. If they cannot, and wrongful retention cannot occur until the day of agreed return arrives, it may be too late for any application under the Abduction Convention, because the same acts which derive from and accompany the decision not to return may themselves have resulted in the child becoming habitually resident in the destination State. The first general question: habitual residence 15. The first question is accordingly this: if by the time of the act relied on as wrongful removal or retention the child is habitually resident in the State where the application for return is made, is summary return under the Abduction Convention still available or not? 16. This question did not arise in either of the courts below, where everyone proceeded on the assumption that the answer was "no". It arose in the course of argument in this court, and we have had the benefit not only of some immediate oral submissions, but of considered post-hearing written submissions from both parties and from the International Centre for Family Law, Policy and Practice as intervener. 17. The argument that summary return under the Abduction Convention remains available runs as follows: (
5. a)there is no express statement in the Convention that the remedy of summary return is available only where at the time of the act relied on as wrongful the child either remains habitually resident in the State of origin or is not habitually resident in the requested State; (
6. b)on the contrary, article 3 refers to habitual residence only in order to identify the proper law - that is to say to identify the law which determines whether a given act is wrongful (because it is in breach of rights of custody) or not; (
7. c)therefore, if the child starts by being habitually resident in State A, but has by the time of the act relied on as wrongful become habitually resident in State B, all that article 3 requires is that you look to the law of State B to decide whether the act was wrongful or not; that is so whether State B is the requested State, or some intermediate State where the child has become habitually resident before arriving in the requested State; (
8. d)once it has been decided that the act constituted either wrongful removal or wrongful retention, the Convention takes the court to article 12, which requires an order for return, subject to the limited exceptions contained in that article and article 13; (
9. e)moreover, it is noticeable that article 12, in providing for an order for return, does not specify that return must be to the state of the child's habitual residence; it could be to any State; this reinforces the conclusion that habitual residence does not govern the place where application for return may be made, but is only referred to in the Convention in order to provide which law is to determine wrongfulness. 18. Accordingly, it is said, on facts such as those of the present case, if the child's habitual residence is in England by the time of the act relied on as wrongful retention, that simply means that it becomes English law which decides whether the retention was wrongful. If it is decided that it is wrongful, there can still be a return to Australia. 19. This may be a possible construction if one has regard simply to the wording of articles 3 and 12. It is, however, not a persuasive construction if one takes into account the general scheme of the Convention. Nor is it the way that the Convention has been operated over the nearly 40 years of its life. Nor is this construction consistent with the way in which the Convention has been treated by subsequent multi-lateral instruments in the general field of the conflict of laws in relation to disputes about the upbringing of children. 20. By the time of the Abduction Convention, habitual residence was already established as the principal internationally-recognised basis for according jurisdiction relating to the upbringing of children. At any rate by the time of the 1961 Hague Convention on the Protection of Infants, habitual residence was, together with in some respects the law of the child's nationality, the principal basis for jurisdiction (see article 1). By the time of the Abduction Convention, Professor Pérez-Vera's report was saying (in para 19) that the Convention: "rests implicitly on the principle that any debate on the merits of the question, ie on custody rights, should take place before the competent authorities in the State where the child had its habitual residence prior to its removal ." (See also para 66 which repeats the point.) Since then the principle has become even more firmly entrenched. The 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children ("the 1996 Convention") accords jurisdiction, by article 5, to the State for the time being of habitual residence, subject only to few qualifications. So, for states members of the European Union ("EU"), does Regulation 2201/2003 (Brussels II Revised) by article 8. 21. The entire scheme of the Abduction Convention is to provide a summary remedy which negates the pre-emptive force of wrongful removal or retention. The aim was also to defeat forum-shopping. This is made clear by Professor Pérez- Vera's report, especially at paras 14-15. "14. . Now, even if the [left-behind parent] acts quickly, that is to say manages to avoid the consolidation through lapse of time of the situation brought about by the removal of the child, the abductor will hold the advantage, since it is he who has chosen the forum in which the case is to be decided, a forum which, in principle, he regards as more favourable to his own claims. 15. To conclude, it can firmly be stated that the problem with which the Convention deals together with all the drama implicit in the fact that it is concerned with the protection of children in international relations derives all of its legal importance from the possibility of individuals establishing legal and jurisdictional links which are more or less artificial. In fact, resorting to this expedient, an individual can change the applicable law and obtain a judicial decision favourable to him. Admittedly, such a decision, especially one coexisting with others to the opposite effect issued by the other forum, will enjoy only a limited geographical validity, but in any event it bears a legal title sufficient to 'legalize' a factual situation which none of the legal systems involved wished to see brought about." With that aim in mind, the framers of the Convention deliberately abjured a treaty which provided for recognition or enforcement of the decisions of the State of habitual residence. Paragraph 36 of the report makes this clear: "36. . Secondly, the Convention is certainly not a treaty on the recognition or enforcement of decisions on custody. This option, which gave rise to lengthy debates during the first meeting of the Special Commission, was deliberately rejected. Due to the substantive consequences which flow from the recognition of a foreign judgment, such a treaty is ordinarily hedged around by guarantees and exceptions which can prolong the proceedings. Now, where the removal of a child is concerned, the time factor is of decisive importance ..." Hence the alternative scheme adopted, for mandatory summary return. Hence also the critical rule in article 16 that the courts of the requested State are to abstain from exercising any jurisdiction which they may have (for example based upon the presence of the child) to make a merits decision. 22. This underlying rationale of the scheme of the Abduction Convention was recognised by this court in In re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27; [2012] 1 AC 144. Baroness Hale and Lord Wilson observed at para 8: "The first object of the Convention is to deter either parent (or indeed anyone else) from taking the law into their own hands and pre-empting the result of any dispute between them about the future upbringing of their children. If an abduction does take place, the next object is to restore the children as soon as possible to their home country, so that any dispute can be determined there. The left-behind parent should not be put to the trouble and expense of coming to the requested state in order for factual disputes to be resolved there. The abducting parent should not gain an unfair advantage by having that dispute determined in the place to which she has come." 23. The whole point of the scheme adopted was to leave the merits to be decided by the courts of the place of the child's habitual residence. The preamble makes this clear in almost the first words of the Convention. If, however, the child has by the time of the act relied on as wrongful become habitually resident in the requested State, then that State will be the appropriate place for the merits of any custody dispute to be resolved. If the requested State is the habitual residence of the child, there can be no place for a summary return to somewhere else, without a merits- based decision, still less for such to be mandatory. That would be so whether or not the removal or retention was, judged by the law of the requested State, as the State of habitual residence, wrongful, for even if it were, it would remain open to either party to ask the courts of that State to review the future plans for the upbringing of the child. 24. This understanding of the scheme of the Abduction Convention is reflected in the provisions of both the 1996 Convention and Brussels II Revised. A large number of nations are party to these two multinational instruments, but not nearly so many as are party to the Abduction Convention. These two instruments are concerned, unlike the Abduction Convention, with recognition and enforcement. But they are scrupulous to ensure that wherever possible they are consistent with the Abduction Convention, whose scheme they very plainly seek to preserve. 25. The 1996 Convention adopts, by article 7

(2)a definition of wrongful removal and retention in the same words as article 3 of the Abduction Convention. Substantively, article 7

(1)provides for cases of wrongful removal and retention a limited exception to the ordinary rule in article 5 that jurisdiction moves with the habitual residence of the child. In effect, the State of habitual residence immediately before the wrongful removal or retention keeps jurisdiction until not only habitual residence has shifted but also there has been an opportunity for the summary return provided for by the Abduction Convention. The effect, plainly intended, is to preserve the regime of the Abduction Convention, and in particular the mandatory summary return. But if, at the time of the wrongful act, the requested State had become the State of habitual residence, the extension by article 7

(1)to the jurisdiction of the previous State of habitual residence would have no application and the requested State would have sole jurisdiction; in such an event, there could be no question of a mandatory summary return without consideration of the merits. 26. Brussels II Revised adopts a similar structure to the 1996 Convention. article 2

(11)provides a definition of wrongful removal and retention which, although not in identical words to article 3 of the Abduction Convention, achieves the same result, and in particular makes the test for wrongfulness the law of the State of habitual residence immediately before the act relied upon. Article 10 prolongs the jurisdiction of that State in the event of a wrongful removal or retention in much the same terms as does article 7 of the 1996 Convention. As with the 1996 Convention, the intention is plainly to preserve the regime of the Abduction Convention, and article 11 goes on to make supplemental provision for the handling of applications under it. It is revealing that it does so after introduction in the following terms: "

(1)Where a person [etc] having rights of custody applies to the competent authorities in a member state to deliver a judgment on the basis of [the Abduction Convention] in order to obtain the return of a child that has been wrongfully removed or retained in a member state other than the member state where the child was habitually resident immediately before the removal or retention, paragraphs 2 to 8 shall apply." (Emphasis supplied) Of course, this provision applies only as between States members which are of the EU. But there is no reason why such States alone should adopt a rule that the requested State must be a different one from the State of habitual residence immediately before the wrongful act. On the contrary, the aim is clearly to preserve the scheme of the Abduction Convention. The words "other than the member state where the child was habitually resident immediately before the removal or retention" plainly assume that this is the scheme implicit in the Abduction Convention. Recital 17 to the Regulation, which expresses the intention that the Abduction Convention should continue to operate, also assumes a difference between the State of habitual residence and the State requested to make a return order. 27. There are other examples of legislative provisions making explicit the principle that return under the Abduction Convention presupposes return from a state other than that of habitual residence at the time of the wrongful act. In New Zealand, the Convention is given effect by the Care of Children Act 2004. In that Act, "removal" includes "retention", in each case as defined in article 3 of the Convention. Section 103 provides: "

(1)The Authority must take action under the Convention to secure the prompt return of the child to a Contracting State other than New Zealand if the Authority receives, in respect of a child, an application claiming - (

1. a)that the child is present in New Zealand; and (
2. b)that the child was removed from that other Contracting State in breach of the applicant's rights of custody in respect of the child; and (
3. c)that at the time of the removal those rights of custody were actually being exercised by the applicant, or would have been so exercised but for the removal; and (
4. d)that the child was habitually resident in that other Contracting State immediately before the removal." (Emphasis supplied) In Australia the equivalent Family Law (Child Abduction Convention) Regulations 1986 provide by regulation 16(1A)(
5. b)that one of the conditions for an order for return is that "the child habitually resided in a convention country immediately before the child's removal to, or retention in, Australia". 28. In re H (Minors) (Abduction: Custody Rights), In re S (Minors) (Abduction: Custody Rights) [1991] 2 AC 476 the House of Lords addressed the question whether wrongful removal and wrongful retention were mutually exclusive concepts; the issue arose in the context of the commencement date for the 1985 Act as between the two States involved. The House held that for the purposes of the Abduction Convention the two concepts were mutually exclusive, and that because article 12 required it to be possible to calculate the 12-month period from a wrongful retention, as well as from a wrongful removal, the former could not be regarded as simply continuing, but had to have an identified date, in effect its beginning. Giving the sole speech, Lord Brandon explained, at 498G: "The preamble of the Convention shows that it is aimed at the protection of children internationally (my emphasis) from wrongful removal or retention. article 1(
6. a)shows that the first object of the Convention is to secure the prompt return to the state of their habitual residence . of children in two categories:

(1)children who have been wrongfully removed from the state of their habitual residence to another contracting state; and

(2)children who have been wrongfully retained in a contracting state other than the state of their habitual residence instead of being returned to the latter state. The Convention is not concerned with children who have been wrongfully removed or retained within the borders of the state of their habitual residence." (Emphasis of "other" supplied) That echoed an observation of Lord Donaldson MR in the same case in the Court of Appeal. He had said, [1991] 2 AC 476, 486F: ". plainly the Act and Convention can only apply if the child is found in a different State from that in which it was habitually resident ." The question raised in the present case did not arise for decision in In re H; In re S and so the observations noted were not the result of argument on the point now at issue. They were, however, a considered analysis of the scheme of the Abduction Convention, and they have been consistently followed in England and Wales ever since. In consequence in a number of cases, which it is not necessary to list, applications under the Convention have failed where the child was habitually resident in England and Wales by the time of the wrongful act relied upon. 29. The researches of counsel, for which we are very grateful, have disclosed that a similar approach has been adopted in Scotland, France, Israel, Switzerland, Canada, Australia, New Zealand and various United States courts whether federal or state. Whilst those surveys cannot by their nature be exhaustive of every decision in every jurisdiction, what is significant is that none of them, including those conducted on behalf of those arguing against the currently assumed analysis (Father and the Intervener), has unearthed any decision to the contrary. 30. In C v M

(2014)(Case C-376/14PPU); [2015] Fam 116 the Court of Justice of the European Union ("CJEU") adopted the same analysis. The French Father had made application to the Irish Court for the return of children who had been taken to Ireland by Mother. The background was an initial decision of the French court permitting relocation to Ireland, which had been appealed promptly. Mother had moved notwithstanding the pending appeal, a stay having been refused to Father, and subsequently the French decision had been reversed by the appeal court. The Irish court was minded to find that the child had become at some stage habitually resident in Ireland. It referred a number of questions to the CJEU. The CJEU decided

(1)that the initial removal to Ireland had not been wrongful, because of the then extant first instance decision permitting the move (para 44),

(2)that the subsequent retention there after the French appellate decision might justify an order for return but

(3)this would depend on whether by then the child was habitually resident in Ireland (paras 45-49 and 63). If habitual residence had by then been established in Ireland, there could be no order for return. At para 48 the court said: "Article 11

(1)of the Regulation [vis Brussels II Revised] . provides that paragraphs 2-8 of that article are to apply where the holder of rights of custody applies to the competent authorities of a member state to deliver a judgment on the basis of the 1980 Hague Convention in order to obtain the return of a child that has been wrongfully removed or retained 'in a member state other than the member state where the child was habitually resident immediately before the wrongful removal or retention'. It follows that this is not the case if the child was not habitually resident in the member state of origin immediately before the removal or retention." 31. It is certainly true that this paragraph proceeds from the words of article 11

(1)of Brussels II Revised. But the application which the father had made was under the Abduction Convention. He had referred also to Brussels II Revised, but this Regulation does not contain the duty to return a child; what it does is to recognise that the Abduction Convention does contain such a duty, and by article 11 it provides supplementary rules for how this duty is to be performed. En route to its conclusion, the CJEU emphasised, first, that the Regulation and the Abduction Convention were to be "uniform", that is to say consistent (para 58), and secondly that a decision to return under the Abduction Convention is not a decision on the merits and thus there can be no occasion for a conflict of jurisdiction between the requesting and requested State (paras 37 and 40-42). It left to the Irish court the decision of fact whether and when habitual residence had been established in Ireland. It may be that its proposition that for a return order under the Abduction Convention to be made it was essential that the child was habitually resident at the time of the wrongful act in the State of origin, as distinct from some State other than the requested State, might be wider than necessary, for it may not have considered the possibility of habitual residence in an intermediate State, which did not arise for debate. But what is abundantly clear is that it is only under the Abduction Convention that a summary order for return is provided for, and that such an order could not be made if the child was, by the time of the wrongful act relied upon, habitually resident in the requested State. There is no hint in the court's decision that Brussels II Revised has in any sense modified the fundamentals of the scheme of the Abduction Convention for EU members; quite the contrary. 32. In the later case of OL v PQ

(2017)(Case C-111/17PPU), a different chamber of the CJEU reached a similar conclusion. The court held that a child born in Greece was habitually resident there, despite the originally Italian home of her parents, and that in consequence an order under the Abduction Convention for return from Greece to Italy could not be made by the Greek court. At para 38 the court said: "It is clear from those provisions that the concept of 'habitual residence' constitutes a key element in assessing whether an application for return is well founded. Such an application can succeed only if a child was, immediately before the alleged removal or retention, habitually resident in the member state to which return is sought."

1. The nearest case proffered as any indication to the contrary is In re G (A Minor) (Enforcement of Access Abroad) [1993] Fam
2. There, the House of Lords held that a Canadian-resident father could use the Abduction Convention (article 21) to enforce his Canadian-given rights of access in relation to a child who was habitually resident in England by the time the mother declined to comply with them. But that was not a case involving any question of return. The provisions of the Convention in relation to access are notably more fluid and flexible. They simply require the central authorities to facilitate co-operation with a view to preserving access rights. They make no demands of the courts of the requested State and to the extent that they contemplate that an application may be made there, they appear to assume that those courts will conduct a merits hearing. They provide no guide to the scheme of the Convention in relation to applications for orders for summary return.
3. These various examples of the practice as to the application of the Abduction Convention thus all point in the same direction. The Convention cannot be invoked if by the time of the alleged wrongful act, whether removal or retention, the child is habitually resident in the State where the request for return is lodged. In such a case, that State has primary jurisdiction to make a decision on the merits, based on the habitual residence of the child and there is no room for a mandatory summary return elsewhere without such a decision. It may of course be that in making a merits decision, the court of the requested State might determine that it is in the best interests of the child to be returned to his previous home State, and indeed might do so without detailed examination of all possible evidence, as the English courts may do (see In re J (A Child) (Custody Rights: Jurisdiction) [2005] UKHL 40; [2006] 1 AC 80). But so to do is very different from making a summary order for return without consideration of the merits under the Abduction Convention. .................................... The second general question: when does wrongful retention occur?
4. This was the question of principle on which leave to appeal to this court was given. If the child has been removed from the home State by agreement with the left-behind parent for a limited period (and thus the removal is not wrongful), can there be a wrongful retention before the agreed period of absence expires? The classic example of the possibility is where the travelling parent announces, half way through the agreed period (say of a sabbatical year of study for the parent) that he will not under any circumstances return the child in accordance with the agreement he made. He might do more. He might effectively make it impracticable to return, by, for example, selling his house in the home State, abandoning his job there, and obtaining residency in the new State for himself and the child on the basis of an undertaking that they will both remain there indefinitely. No doubt other examples could be postulated. The question is whether, if such a thing occurs, there is then and there a wrongful retention, or whether his retention of the child cannot in law be wrongful until the date agreed for return arrives and, as it was graphically put in the American case of Falk v Sinclair

(2009)692 F Supp 2d 147, the aeroplane lands and the child is not among those who disembark.

1. There is some difficulty in devising a suitable shorthand for the possibility of wrongful retention in advance of the due date for return. One which has been used is "anticipatory retention". This is certainly convenient but it may lead to misconceptions. If early wrongful retention is a legal possibility, it is not because there is an anticipation of retention. On the contrary, the child is retained in the destination State from the moment of arrival, just as he is removed from the home State at the moment of departure. If the departure and arrival are permitted by agreement with the left-behind parent, or sanctioned by the court of the home State, they are still respectively removal and retention, but they are not wrongful. So what is under consideration is a retention which becomes wrongful before the due date for return.
2. The key to the concept of early wrongful retention, if it exists in law, must be that the travelling parent is thereafter denying, or repudiating, the rights of custody of the left-behind parent and, instead of honouring them, is insisting on unilaterally deciding where the child will live. In the absence of a better expression, the term which will be used here will, for that reason, be "repudiatory retention". That is not to import contractual principles lock stock and barrel into the concept, for the analogy with a contract is only partial. It is simply to attempt a shorthand description.
3. The expert and thorough analysis of the known cases in several different jurisdictions which was undertaken in this case by Black LJ, as she then was, cannot be improved upon. It is to be found at paras 28-97 of her judgment [2017] EWCA Civ 980; [2017] 3 FCR
4. On this part of her judgment the Court of Appeal was unanimous. It shows that a concept of repudiatory retention has been recognised in some jurisdictions, and for many years now: early examples included Wall J's decision in In re S (Minors) (Abduction: Wrongful Retention) [1994] Fam 70 and the Canadian case of Snetzko v Snetzko

(1996)CanLII 11326. Other cases have rejected the concept, for example in Australia. There are cases going either way in the United States. It follows that there is no generally accepted international practice on the point, nor is there clear authority either way in this jurisdiction. In those circumstances it is necessary for this court to address the principle of the suggested concept. 40. The Court of Appeal concluded unanimously that there was a concept of repudiatory retention known to the law. It divided, however, as to whether it could exist only when the repudiation was communicated to the left-behind parent (or at least manifested by action), as Black LJ held, or whether such communication was not necessary in law, as Sharp and Thirlwall LJJ concluded. In considering the existence of the concept, it is necessary also to address how repudiatory retention, if it exists at all, may occur. ....................................... 43. When the left-behind parent agrees to the child travelling abroad, he is exercising, not abandoning, his rights of custody. Those rights of custody include the right to be party to any arrangement as to which country the child is to live in. It is not accurate to say that he gives up a right to veto the child's movements abroad; he exercises that right by permitting such movement on terms. He has agreed to the travel only on terms that the stay is to be temporary and the child will be returned as agreed. So long as the travelling parent honours the temporary nature of the stay abroad, he is not infringing the left-behind parent's rights of custody. But once he repudiates the agreement, and keeps the child without the intention to return, and denying the temporary nature of the stay, his retention is no longer on the terms agreed. It amounts to a claim to unilateral decision where the child shall live. It repudiates the rights of custody of the left-behind parent, and becomes wrongful. 44. The plain purpose of the Abduction Convention is to prevent the travelling parent from pre-empting the left-behind parent. The travelling parent who repudiates the temporary nature of the stay and sets about making it indefinite, often putting down the child's roots in the destination State with a view to making it impossible to move him home, is engaging in precisely such an act of pre-emption. 45. It is possible that there might also be other cases of pre-emptive denial of the rights of custody of the left-behind parent, outside simple refusal to recognise the duty to return on the due date. It is not, however, necessary in the present case to attempt to foresee such eventualities, or to consider whether fundamental failures to observe conditions as to the care or upbringing of the child might amount to such pre-emptive denial. It is enough to say that if there is a pre-emptive denial it would be inconsistent with the aim of the Abduction Convention to provide a swift, prompt and summary remedy designed to restore the status quo ante to insist that the left- behind parent wait until the aeroplane lands on the due date, without the child disembarking, before any complaint can be made about such infringement. 46. It is no doubt true that a travelling parent might change his mind after an act of repudiation. But so he might after a failure to return on the due date, and commonly does when faced by notice of the provisions of the Abduction Convention, or by an application under it. So also he might, after making an unsanctioned move to an unagreed country, or after embarking on an unsanctioned programme of religious conversion. The possibility of a change of heart is no reason not to recognise that the heart needs changing if rights of custody in the left-behind parent are to be respected. On the contrary, the desirability of inducing a prompt change of mind is an argument for recognising a repudiatory retention when and if it occurs. Proof that it has occurred is a matter of evidence, and what manifestation of it must be demonstrated is considered below. 47. If a concept of repudiatory retention exists, it would indeed follow that once such an act occurs, the article 12 12-month clock would begin to run at that point. If the left-behind parent knows of the repudiation, there is every reason why it should run. If he does not, the possibility exists that the 12-month period partly, or sometimes wholly, may pass before he finds out and can make an application under the Abduction Convention. But it is a mistake to think of the 12-month period as a limitation period, of the kind designed in Limitation Acts to protect a wrongdoer from claims which are too old to be pursued. It is not a protection for the wrongdoer. Rather, it is a provision designed in the interests of the child. It operates to limit the mandatory summary procedure of the Convention to cases where the child has not been too long in the destination State since the wrongful act relied on. Where it applies, it does not prevent a summary return; it merely makes it discretionary. In the event that an act of wrongful repudiatory retention had been concealed, that concealment might well be one factor in the decision whether to order return or not. In other cases, the settlement of the child might be so well established that notwithstanding the wrong done by the travelling parent, it is too late to disturb it. Such decisions are fact-sensitive ones which are properly left to the court of the requested State. The risk of the 12-month period running without the knowledge of the left-behind parent is in any event distinctly less fatal to his interests than the risk of the child's habitual residence being changed without his knowledge, or indeed with his knowledge but without him being able to invoke the Convention because the due date for return has not yet arrived. The latter risk creates a complete bar to return under the Convention; the former a discretionary one. 48. The concern that Abduction Convention applications may become longer and more complicated is a point well made. It was convincingly voiced in the Court of Appeal by Black LJ. It is of the essence of such cases that the remedy is a swift and summary one. Oral evidence should be the exception, not the rule. But some limited disputes of fact are bound to arise. In the kind of case where retention is in question, it will often be critical to establish what the terms were of any arrangement under which the child travelled. That may be as necessary to establish the date of due return (and thus conventional wrongful retention) as to establish an earlier repudiatory retention. The Family Division judges who hear these cases are well used to managing them actively and to controlling any tendency to spill outside the issues necessary to determine them. If the correct rule is that repudiatory retention must be demonstrated by overt act or statement (see below) the danger of speculative applications being made, or of hearings degenerating into speculative cross- examination as to the internal and undisclosed thinking of the travelling parent ought not to arise. 49. It may be that in many cases which would be covered by the concept of repudiatory retention the left-behind parent may have remedies alternative to an application under the Abduction Convention. We were pressed with the contention that ordinarily he will be able to seek an order for return in the home State, and then enforce it in the destination State. This may indeed sometimes be possible. It will be possible if both States are party to the 1996 Convention and if at the time of the application to the court of the home State the child is still habitually resident there. In that event, the home State has jurisdiction (article 5) and the destination State must enforce its decision (article 23). Article 7 of the 1996 Convention prolongs the jurisdiction of the home State if there has been a wrongful retention, but if the habitual residence of the child has been changed to the destination State by the time of the act relied upon, there will be no wrongful retention and article 7 will not apply. Nevertheless, the necessity for habitual residence in the home State presents no greater hurdle to the left-behind parent under the 1996 Convention than under the Abduction Convention, because if the habitual residence of the child has shifted to the destination State by the time of the act relied on, neither form of machinery will work. Likewise, if both States are members of the EU and governed by Brussels II Revised. All that said, the critical fact is that by no means all States which are party to the Abduction Convention are party to the 1996 Convention; at the time of the hearing in this court there were some 49 States which are not. Even fewer are members of the EU. The Abduction Convention has its own self-contained scheme and should function as such. The recognition and enforcement provisions in the 1996 Convention are, as explained above, meant to preserve that scheme and not to substitute for it. Moreover, such an application to the home State would have to trigger a merits hearing, in which the home State has to adjudicate upon where the best interests of the child now lie, and upon whether habitual residence has shifted, all depending on facts occurring perhaps some thousands of miles away. That is not at all the same as the mandatory summary remedy provided by the Abduction Convention. Even in jurisdictions, such as England and Wales, which retain the practice of sometimes returning children without a full investigation of the facts (In re J, para 34 above), the remedy is not, for the left-behind parent, the equivalent of the Abduction Convention's mandatory summary return. 50. For all these reasons, the principled answer to the question whether repudiatory retention is possible in law is that it is. The objections to it are insubstantial whereas the arguments against requiring the left-behind parent to do nothing when it is clear that the child will not be returned are convincing and conform to the scheme of the Abduction Convention. The remaining question is what is needed to constitute such repudiatory retention. 51. As with any matter of proof or evidence, it would be unwise to attempt any exhaustive definition. The question is whether the travelling parent has manifested a denial, or repudiation, of the rights of the left-behind parent. Some markers can, however, be put in place. (

1. i)It is difficult if not impossible to imagine a repudiatory retention which does not involve a subjective intention on the part of the travelling parent not to return the child (or not to honour some other fundamental part of the arrangement). The spectre advanced of a parent being found to have committed a repudiatory retention innocently, for example by making an application for temporary permission to reside in the destination State, is illusory. (
2. ii)A purely internal unmanifested thought on the part of the travelling parent ought properly to be regarded as at most a plan to commit a repudiatory retention and not itself to constitute such. If it is purely internal, it will probably not come to light in any event, but even supposing that subsequently it were to do so, there must be an objectively identifiable act or acts of repudiation before the retention can be said to be wrongful. That is so in the case of ordinary retention, and must be so also in the case of repudiatory retention. (iii) That does not mean that the repudiation must be communicated to the left-behind parent. To require that would be to put too great a premium on concealment and deception. Plainly, some acts may amount to a repudiatory retention, even if concealed from the left-behind parent. A simple example might be arranging for permanent official permission to reside in the destination State and giving an undertaking that the intention was to remain permanently. (
3. iv)There must accordingly be some objectively identifiable act or statement, or combination of such, which manifests the denial, or repudiation, of the rights of custody of the left-behind parent. A declaration of intent to a third party might suffice, but a privately formed decision would not, without more, do so. (
4. v)There is no occasion to re-visit the decision of the House of Lords in In re H; In re S (para 28 above) that wrongful retention must be an identifiable event and cannot be regarded as a continuing process because of the need to count forward the 12-month period stipulated in article 12. That does not mean that the exact date has to be identifiable. It may be possible to say no more than that wrongful retention had clearly occurred not later than (say) the end of a particular month. If there is such an identifiable point, it is not possible to adopt the submission made to the Court of Appeal, that the left-behind parent may elect to treat as the date of wrongful retention either the date of manifestation of repudiation or the due date for return. It may of course be permissible for the left-behind parent to plead his case in the alternative, but that is a different thing. When once the actual date of wrongful retention is ascertained, the article 12 period begins to run.» Στην παρούσα υπόθεση το θέμα του κατά πόσο στοιχειοθετείται η επικαλούμενη παράνομη κατακράτηση και το πότε αυτή άρχισε δε φαίνεται να αμφισβητείται. Όπως θέτει το ζήτημα η μητέρα ό,τι την ώθησε να επιστρέψει, στις 22/3/2017, στην Ελλάδα και να αιτηθεί την επιστροφή της ανήλικης, ήταν η παρακώληση της επικοινωνίας της μ' αυτήν από τον Καθ' ου η αίτηση. Σχετικά μηνύματα μέσω τηλεφώνου που επισυνάπτονται στην αίτηση αρχίζουν από τις 19/2/2017 (ΤΕΚ 10α). Κατά τον Καθ' ου η αίτηση ό,τι έκανε την Αιτήτρια να αιτηθεί την επιστροφή της ανήλικης ήταν η ενημέρωση που είχε από τον ίδιο για τα νομικά μέτρα που έλαβε εναντίον της, σχετικά με τη ρύθμιση της γονικής μέριμνας της ανήλικης (ΤΕΚ Α, Β, Γ). Απ' αυτά ξεχωρίζω το προσωρινό διάταγμα που εκδόθηκε μονομερώς και με το οποίο, μεταξύ άλλων, ανατέθηκε σ' αυτόν η επιμέλεια του προσώπου της ανήλικης και προσδιορίστηκε ως τόπος διαμονής της ο εκάστοτε τόπος διαμονής του ιδίου (ΤΕΚ Β). Το εν λόγω διάταγμα δόθηκε στις 20/3/2017 και συντάχθηκε αυθημερόν. Για σκοπούς επίδοσης, αναφέρει ο Καθ' ου η αίτηση, μάταια ζητούσε από την Αιτήτρια να τον πληροφορήσει τη διεύθυνση της στη Γερμανία. Περί τον Απρίλιο του 2017 η Αιτήτρια του έδωσε τη διεύθυνση της στην Αθήνα όπου και επετεύχθη η επίδοση, η οποία έγινε στις 29/5/2017. Και οι δύο πιο πάνω ενέργειες, τόσο η παρακώληση της επικοινωνίας όσο και η λήψη νομικών μέτρων, αναγνωρίζονται από την αγγλική νομολογία ως δυνάμενες να σηματοδοτήσουν το έναυσμα της παράνομης κατακράτησης. (Re S (Minors) (Child Abduction: Wrongful Retention) [1994] 1 FLR 84 Wall J (Re S) και Re AZ (a minor) (Abduction: Acquiescence) [1993] 1 FLR 682 ("Re AZ") αντίστοιχα) Κρίνω πως και τα δύο έχουν συμβεί και προχωρώντας ένα βήμα παρακάτω θεωρώ πως το πρώτο ήταν ο προπομπός του δεύτερου, το δεύτερο δε η επιβεβαίωση του σκοπού του πρώτου. Αρχικά, η Αιτήτρια, όντας στη Γερμανία, διαπιστώνει την αλλαγή που συντελείται στην επικοινωνία της με την ανήλικη. Στη συνέχεια, όταν πια πληροφορείται, εξακολουθώντας να είναι στη Γερμανία, για τα νομικά μέτρα που λαμβάνει ο Καθ' ου η αίτηση, βεβαιώνεται για την πρόθεση του να μην της επιστρέψει την ανήλικη. Ως αποτέλεσμα τούτων επιστρέφει και μάλιστα, καθώς φαίνεται, εσπευσμένα στις 22/3/2017, στην Ελλάδα όπου στη συνέχεια και εφόσον της επιδίδονται τα σχετικά έγγραφα/ διατάγματα, υποβάλλει το αίτημα της στην Κεντρική Αρχή για επιστροφή της ανήλικης. Τούτων δοθέντων κρίνω ότι η παράνομη κατακράτηση αρχίζει από το Μάρτιο του 2017. Το ερώτημα που στη συνέχεια θα πρέπει να απαντηθεί αφορά τον τόπο διαμονής της ανήλικης στον πιο πάνω χρόνο. Εξακολουθεί αυτός να είναι η Ελλάδα ή η Κύπρος έχει καταστεί πλέον τόπος διαμονής της; Πέραν των αναφερομένων στην πιο πάνω απόφαση σε σχέση με τον τόπο της συνήθους διαμονής παραθέτω πιο κάτω τα όσα με επιμέλεια για το ίδιο θέμα έχουν αναφερθεί και στις παραγράφους 39-41 της απόφασης RV. VT [2018] EWHC 2808, 19/10/2018: «39. 'Habitual residence' is not statutorily defined. I have considered a number of cases that counsel for the father has referred me to in her position statement and submissions. I have found it particularly helpful to consider the judgment of Hayden J in the case of B (A Minor: Habitual Residence) [2016] EWHC 2174 (Fam) in which he summarises a number of propositions that can be gleaned from the five Supreme Court judgments, addressing habitual residence, delivered since 2013:- i. The habitual residence of a child corresponds to the place which reflects some degree of integration by the child in a social and family environment (A v A, adopting the European test). ii. The test is essentially a factual one which should not be overlaid with legal sub-rules or glosses. It must be emphasised that the factual enquiry must be centred throughout on the circumstances of the child's life that is most likely to illuminate his habitual residence (A v A, Re KL). iii. In common with the other rules of jurisdiction in Brussels IIR its meaning is 'shaped in the light of the best interests of the child, in particular on the criterion of proximity'. Proximity in this context means 'the practical connection between the child and the country concerned': A v A (para 80(ii)); Re B (para 42) applying Mercredi v Chaffe at para 46). iv. It is possible for a parent unilaterally to cause a child to change habitual residence by removing the child to another jurisdiction without the consent of the other parent (Re R); v. A child will usually but not necessarily have the same habitual residence as the parent(
5. s)who care for him or her (Re LC). The younger the child the more likely the proposition, however, this is not to eclipse the fact that the investigation is child focused. It is the child's habitual residence which is in question and, it follows the child's integration which is under consideration. vi. Parental intention is relevant to the assessment, but not determinative (Re KL, Re R and Re B); vii. It will be highly unusual for a child to have no habitual residence. Usually a child loses a pre-existing habitual residence at the same time as gaining a new one (Re B); viii. In assessing whether a child has lost a pre-existing habitual residence and gained a new one, the court must weigh up the degree of connection which the child had with the state in which he resided before the move; ix. It is the stability of a child's residence as opposed to its permanence which is relevant, though this is qualitative and not quantitative, in the sense that it is the integration of the child into the environment rather than a mere measurement of the time a child spends there (Re R and earlier in Re KL and Mercredi); x. The relevant question is whether a child has achieved some degree of integration in social and family environment; it is not necessary for a child to be fully integrated before becoming habitually resident (Re R) (emphasis added); xi. The requisite degree of integration can, in certain circumstances, develop quite quickly (Art 9 of BIIR envisages within 3 months). It is possible to acquire a new habitual residence in a single day (A v A; Re B). In the latter case Lord Wilson referred (para 45) those 'first roots' which represent the requisite degree of integration and which a child will 'probably' put down 'quite quickly' following a move; xii. Habitual residence was a question of fact focused upon the situation of the child, with the purposes and intentions of the parents being merely among the relevant factors. It was the stability of the residence that was important, not whether it was of a permanent character. There was no requirement that the child should have been resident in the country in question for a particular period of time, let alone that there should be an intention on the part of one or both parents to reside there permanently or indefinitely (Re R). xiii. The structure of Brussels IIa, and particularly Recital 12 to the Regulation, demonstrates that it is in a child's best interests to have an habitual residence and accordingly that it would be highly unlikely, albeit possible (or, to use the term adopted in certain parts of the judgment, exceptional), for a child to have no habitual residence; As such, "if interpretation of the concept of habitual residence can reasonably yield both a conclusion that a child has an habitual residence and, alternatively, a conclusion that he lacks any habitual residence, the court should adopt the former" (Re B supra); 40. Hayden J refers to the clear message emerging both from the European case law and from the Supreme Court, that the child is at the centre of the exercise when evaluating his or her habitual residence. This will involve a real and detailed consideration of (inter alia): the child's day to day life and experiences; family environment; interests and hobbies; friends etc. and an appreciation of which adults are most important to the child. The approach must always be child driven. Habitual residence of a child is all about his or her life and not about parental dispute. It is a factual exploration. 41. I have also found it helpful to consider the observations of Lord Wilson in Re B (a child)) [2016] UKSC 4. "Simple analogies are best: consider a see-saw. As, probably quite quickly, he puts down those first roots which represent the requisite degree of integration in the environment of the new state, up will probably come the child's roots in that of the old state to the point at which he achieves the requisite de-integration (or, better, disengagement) from it."» Είναι δεδομένο ότι η ανήλικη μέχρι τις 12/3/2016, είχε τη συνήθη διαμονή της στην Ελλάδα, όπου διέμενε μαζί με τη μητέρα της. Η επικοινωνία της με τον πατέρα ήταν ελάχιστη. Όπως ο ίδιος αναφέρει, λόγω της στάσης που τηρούσε η μητέρα ως προς το θέμα αυτό, κατόρθωσε να δει την ανήλικη από το 2011, που μετανάστευσε στην Κύπρο, μέχρι το Μάρτιο του 2016, που την παρέλαβε από τον Διεθνή Αερολιμένα Αθηνών, μόνο 3 φορές. Στη συνέχεια και συγκεκριμένα από τις 12/3/2016, η ανήλικη μένει μαζί με τον πατέρα της στην Κύπρο και επικοινωνεί με τη μητέρα της, η οποία βρίσκεται στη Γερμανία, τηλεφωνικώς ή και μέσω άλλων διαθέσιμων εφαρμογών όπως π.χ. το Viber. Και η μητέρα παραπονείται για παρεμπόδιση της επικοινωνίας της με την ανήλικη από τον πατέρα, αφήνοντας να νοηθεί ότι αυτή ήταν περιορισμένη. Αποτελεί παραδεκτό γεγονός ότι η ανήλικη, όντας στην Ελλάδα φοιτά σε νηπιαγωγείο. Πρωτοπήγε σχολείο στην Κύπρο. Από το Σεπτέμβριο του 2016 μέχρι και σήμερα φοιτά στο Δημοτικό σχολείο XXXXX όπου διαμένει μαζί με τον πατέρα της, τη νέα σύζυγο του και τα δύο παιδιά της. Όπως αναφέρεται από τον πατέρα και όπως από τη συνέντευξη του παιδιού με το Δικαστήριο, αβίαστα προκύπτει η ανήλικη «έχει αναπτύξει φιλίες και κοινωνικούς δεσμούς με συμμαθητές και φίλους από την περιοχή.» Η ανήλικη, όπως διαπιστώθηκε από την προσωπική της επικοινωνία με το Δικαστήριο, είναι ένα έξυπνο, κοινωνικό, χαρούμενο και γεμάτο ζωντάνια παιδί, που διατυπώνει ελεύθερα και άμεσα τις απόψεις, τα συναισθήματα και τις επιθυμίες της, διαθέτει δε και την ανάλογη για την ηλικία της ωριμότητα. Ενδιαφέρον στη συνέντευξη του παιδιού με το Δικαστήριο είναι πως με τις απαντήσεις που δίνει προσπαθεί να κρατά ισορροπίες και να είναι προστατευτική και προς τους δύο γονείς, με φυσική προέκταση και προς το περιβάλλον που ο καθένας από αυτούς ευρίσκεται. Ότι όμως αναδύεται από τη συνέντευξη αυτή είναι πως η ανήλικη είναι ευτυχισμένη στο παρόν οικογενειακό, σχολικό και κοινωνικό της περιβάλλον και γενικά στον διαμορφωθέντα από τις 12/3/2016, τρόπο ζωής της. Το Δικαστήριο είναι ικανοποιημένο από την ενώπιον του μαρτυρία ότι η ανήλικη έχει ενσωματωθεί πλέον πλήρως με τις συνθήκες της ζωής της στην Κύπρο και με τα όσα εδώ προσφέρει το περιβάλλον στο οποίο ζει. Περιβάλλεται από πολλά αγαπητά της πρόσωπα, ακόμα και το σκυλάκι της οικογένειας. Εδώ πρωτοπήγε δημοτικό σχολείο και έχει ενταχθεί άψογα στο σχολικό περιβάλλον. Έχει δημιουργήσει φιλίες και όπως η ίδια δήλωσε της αρέσει και το σχολείο της και η δασκάλα της. Με χαρά αναφέρθηκε η ανήλικη και στις εξωσχολικές της δραστηριότητες. Κρίνω ότι η καθημερινή ζωή της ανήλικης, εδώ στην Κύπρο, ακολουθώντας πιστεύω μια εξελικτική πορεία, φτάνει, στον κρίσιμο χρόνο της κατακράτησης της, να της παρέχει ένα οικείο και ευτυχισμένο περιβάλλον, με κύρια, μεταξύ άλλων, χαρακτηριστικά τη σταθερότητα και την ασφάλεια. Είναι προφανές από τη συνέντευξη του παιδιού με το Δικαστήριο ότι οι μνήμες του σε σχέση με τις συνθήκες διαμονής του στην Ελλάδα και συγκεκριμένα στο Άργος, ανάγονται σε απώτερο χρόνο και με εμπλοκή προσώπων που ζουν εκεί ή και προσώπων, όπως η μητρική γιαγιά, που σήμερα δεν είναι στη ζωή. Έτσι καθίσταται σαφές ότι όταν το παιδί στη συνέντευξη αναφερόταν για τις συνθήκες της ζωής της στην Ελλάδα και εξέφραζε την ικανοποίηση της, είναι για τις συνθήκες της ζωής της στο Άργος και τις επαφές που είχε με φίλους από το νηπιαγωγείο και μέλη της ευρύτερης οικογένειας που ζουν εκεί, μεταξύ των οποίων και η μητρική γιαγιά που εν τω μεταξύ απεβίωσε. Η ενδεχόμενη διαταγή επιστροφής της ανήλικης στην Ελλάδα δεν θα εντάξει την ανήλικη στο κοινωνικό και οικογενειακό περιβάλλον του Άργους και στις εν γενεί συνθήκες ζωής της εκεί, εφόσον το Άργος πλέον είναι εκτός της επιλογής της μητέρας η οποία έχει επιλέξει ως τόπο της συνήθους διαμονής της την Αθήνα, περιβάλλον παντελώς ξένο προς το παιδί. Για τους λόγους που έχω πιο πάνω εξηγήσει καταλήγω ότι κατά τον κρίσιμο χρόνο της κατακράτησης της ανήλικης στην Κύπρο, η χώρα αυτή έχει καταστεί ο τόπος της συνήθους διαμονής της. Τούτου δοθέντος η αίτηση στη βάση της Σύμβασης δεν μπορεί να επιτύχει. Προτού αφήσω την απόφαση αυτή θα ήθελα να προσθέσω και τούτο. Η ενώπιον του Δικαστηρίου μαρτυρία πέραν των πιο πάνω, κατέδειξε και τον τρόπο με τον οποίο χειριζόταν η μητέρα το θέμα της φοίτησης της ανήλικης σε σχολείο. Επρόκειτο για μια δικαιολογημένη ευαισθησία που είχε να κάνει όχι μόνο με την επιλογή του σχολείου αλλά και με το χρόνο που θα φοιτούσε η ανήλικη σ' αυτό, υπό την έννοια ότι πάντοτε προτιμούσε αν θα μετακινείτο η ανήλικη από την Κύπρο στη Γερμανία ή από την Κύπρο στην Ελλάδα αυτό να γινόταν στο χρόνο που θα τέλειωνε τη μια τάξη και θα φοιτούσε στην επόμενη. Στα πλαίσια αυτά κατά την αντεξέταση της αναφέρει: «Ε: Πότε ζήτησες να επιστραφεί το παιδί σε εσένα; Α: Αν δεν κάνω λάθος μέσα στο '17 μίλησα τηλεφωνικά να μην ξανακάνει μετεγραφή στο σχολείο γιατί κατεβαίνω Ελλάδα. Πρέπει να ήταν μέσα του '17 της σχολικής χρονιάς γιατί είχα πει να τελειώσει τη σχολική χρονιά και να μην ξανακάνει εγγραφή και να μου τη φέρουν. Ε: Συμφωνείς ότι το παιδί με τη συγκατάθεση σου μένει μέχρι το καλοκαίρι του '17; Α: Γι' αυτό κάναμε και συμφωνητικό. Γι' αυτό δεν ορίσαμε ημερομηνία. Ε: Μέχρι το καλοκαίρι του '17 συνέναισες στο να παραμείνει το παιδί μαζί του μέχρι να τελειώσει η σχολική χρονιά. Α: Είπα αντί να κατέβω και να επιστρέψει τον Σεπτέμβριο ή Ιανουάριο και να χάσει μαθήματα και να μην βάλω τη μικρή σε διαδικασία αλλαγής σχολείου, 3 μήνες απομένουν να τελειώσει η χρονιά εδώ, να μείνει με τον πατέρα της το καλοκαίρι και να έρθει σε εμένα και να μπούμε στη διαδικασία να πάει το παιδί σχολείο κλπ.» Και πιο κάτω: «Ε: Το παιδί σου υποβάλλω τον ουσιώδη χρόνο με τη συγκατάθεση σου παρέμεινε στην Κύπρο με τον Καθ' ου η αίτηση. Από τις 22/3/17 μέχρι και την 1/6/17 με τη συγκατάθεση σου. Α: Ναι.» Στη βάση των πιο πάνω καθίσταται αναντίλεκτο πως στο χρόνο της παράνομης κατακράτησης ήτοι το Μάρτιο του 2017 καθώς και στο χρόνο που η Αιτήτρια υπέβαλε μέσω της Κεντρικής Αρχής της Ελλάδας το αίτημα της για επιστροφή του παιδιού ήτοι στις 31/5/2017, το παιδί παρέμενε στην Κύπρο με τη συγκατάθεση της. Θεωρώ ότι αυτός είναι ένας επιπρόσθετος λόγος για απόρριψη της αίτησης, μαζί με όλα όσα έχω αναφέρει ανωτέρω. Για όλα τα πιο πάνω η αίτηση απορρίπτεται. Το προσωρινό διάταγμα ημερομηνίας 18/2/2017 ακυρώνεται. Ως εκ της φύσεως της υπόθεσης και των ειδικών περιστατικών της, θεωρώ ορθό και δίκαιο, ως προς τα έξοδα, όπως ο κάθε διάδικος επωμισθεί τα δικά του. (Υπ.) ........... Δ. Κούσιου, Δ. ΠΙΣΤΟ ΑΝΤΙΓΡΑΦΟ /ΠΡΩΤΟΚΟΛΛΗΤΗΣ ΟΤ cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο