clr/1987/1987_1_536.pdf

(1),10(2}(b), 12 and 17of the Convention. Wordsand Phrases— improper removal»of achildinthe EuropeanConvention 5 on Recognition and Enforcement of Decisions Concerning Custody of Childrenand on Restorationof Custody of Children (Ratification)Law, 1986 (Law 36/86). Upon application by thefather of the minorchild Andreas Etlina the High CourtofJustice {FamilyDivision)InEngland ordered on 19.5.87respondent 1, i.e. the mother of the minor, to return the child to its jurisdiction within twenty-one days. 10 On 10.5.87theMinisterofJustice filed before theDistrictCourtof Lamaca an application for the recognition and enforcement of the aforementioned order of the High Court of Justice In England. Earlier on, on 30.4.87 1 5 respondent 1had filedbefore the same CourtGuardianshipApplication No. 11/87 as a result of which on22.5.87an interim order was made granting to themotherthecustody oftheminor. On 27.7.87 the District Court of Lamaca, purporting to act under Article 10

(2){b) of the aforesaid Convention, suspended the proceedings in the application of theMinisterof Justice. Hence this appeal. 536 20 1 C.L.R. 5 10 Minister ofJustice v.Ellina Held, allowing the appeal

(1)In as much as by means of the aforementioned order of the High Court tn England dated 195 87 it was declared that the removal of the minor from itsjunsdiction was unlawful in terms of the Convention in question,there canbe no doubt, under Articles 1(d) and 12 of the Convention, that this isacaseof tmpoper removal of the saidminortowhichArticle 10

(1)oltheConvention isnotapplicableand.also. inview of itswording,Article 10

(2)isnotapplicable either

(2)Whatever the exact nature of the reservation made by the United Kingdom under Article 17of the Convention, it hasnot rendered applicable Article 10

(2)ofthe Convention Appeal allowed No order as to costs. Appeal. AppealbyapplicantagainstthejudgmentoftheDistrictCourtof 15 Lamaca (Arestis,D.J.)dated the27thJuly, 1987 (Appl.No.3/87) whereby proceedings inthe application of the appellant Minister ofJustice for therecognition and enforcement of the order of the High Court of Justice in England dated 19 May, 1987 were suspended until after the final determination of Guardianship 20 Appl. N o l l / 8 7 . A. Evangelou, Senior • Counsel of the Republic with Chr. loannides, forthe appellant. P.Demetriou, forthe respondent Cur.adv. vult. 25 TRIANTAFYLLIDES P. read the following judgment of the Court. On 19 May 1987 the High Court of Justice (Family Division) in England ordered respondent 1 to return the minor Andrea Ellinastoitsjurisdiction within twenty-one days. The said minor isthe daughter of respondent 1and of Loizos 30 Ellinaswho had applied to the High Court ofJustice for such an order. On28May 1987thesaidorderwasforwarded totheMinistryof Justice of Cyprus by the Lord Chancellor's Department in England for recognition and enforcement under the European 35 Convention on Recognition and Enforcement of Decisions Concerning Custody of Children, which was ratified by the European Convention on Recognition and Enforcement of 537 Triantafyfllde· P. Minister of Jostle· v. Ellin·

(1987)DecisionsConcerning Custody ofChildren and on Restorationof Custody of Children (Ratification) Law, 1986 (Law36/86). As a result the Minister of Justice, as the Central Authority for Cyprus for the purposes of the said Convention, filed before the DistrictCourtof Lamaca,on 10June 1987,anapplication forthe 5 recognition and enforcement of the aforementioned order of the High CourtofJustice in England. The application wasopposed bythe respondents. Earlier on, on 30April 1987,respondent 1had filed before the District Court of Lamaca Guardianship Application No. 11/87 as 10 a result of which on 22 May 1987 an interim order was made grantingtorespondent 1inthepresentproceedingsthecustodyof herminordaughter whohad been broughtto Cyprusby her. On27July 1987theDistrictCourtofLamaca, purportingtoact underArticle 10

(2)(b)oftheaforesaid Convention,suspended the proceedings intheapplication ofthe appellant MinisterofJustice fortherecognitionandenforcement oftheorderoftheHighCourt of Justice in England dated 19 May 1987 until after the final determination of Guardianship Application No. 11/87 in the DistrictCourt of Lamaca. 15 20 Against the order made as aforesaid on 27.7.87 the present appeal hasbeen made. Article 10(l)

(2)(b)oftheConvention readsasfollows: «1. In cases other than those covered by Articles 8 and 9, recognition and enforcement may be refused not onlyon the 25 grounds provided for in Article 9 but also on any of the following grounds: 2. In the same cases, proceedings for recognition or enforcement may be adjourned on any of the following 30 grounds: (

1. a)(
2. b)if proceedings relating to the custody of the child, commenced before theproceedingsintheStateoforiginwere instituted, arependingintheState addressed; (0 35 » 538 1C.L.R. MinisterofJusticev.EtUna TrisntafylHde·P. Article 8 and 9 of the Convention, which are referred to in Article 10

(1)of the Convention apply to cases of «improper removal»ofachild;andbymeansofArticle1(d)ofthe Convention improper removal isdefined as follows: 5 «(d)'improperremoval'meanstheremovalofachildacross an international frontier inbreach of a decision relatingtohis custody which has been given in a Contracting State and which isenforceable in such a State; improper removal also includes: 10 (

1. i)the failure to return a child across an international frontier at the end of a period of the exercise of the right ofaccesstothischildorattheendofanyothertemporary stay in a territory other than that where the custody is exercised; 15 (ii)aremoval which issubsequently declared unlawful withinthe meaning of Article 12.» Itis,also, useful to refer to Article 12of the Convention which readsas follows: 20 25 Where, at the time of the removal of a child across an international frontier, thereisnoenforceable decisiongivenin a Contracting State relating to hiscustody, the provisionsof this Convention shall apply to any subsequent decision, relatingtothecustodyof that childand declaringthe removal to be unlawful, given in a Contracting State at the requestof any interested person.» Inasmuch asbymeansoftheaforementioned orderoftheHigh Court in England dated 19 May 1987 it was declared that the removal of the minor Andreas Ellinas from the jurisdiction of England and Wales was unlawful in terms of the European 30 Convention inquestiontherecanbenodoubt,underArticles1(
2. d)and 12of the Convention, that thisisa case of improper removal of the said minor to which Article 10

(1)of the Convention isnot applicable and, also, in view of its wording Article 10

(2)is not applicable either. Consequently, paragraph (b) of Article 10

(2)35 was not applicable and could not have been resorted to by the DistrictCourtofLamaca asitwasdonebymeansofitsorderof27 July 1987. 539 TrUntafyOldes P. Minister of Justice v. EUina

(1987)During the course of the argument before us reference was madetoareservation bytheGovernment oftheUnited Kingdom, underArticle 17oftheConvention, which readsas follows «1. A Contracting State may make a reservation that, in cases covered by Articles 8 and 9 or either of these Articles, 5 recognition and enforcement of decisions relating to custody mayberefused onsuchofthegroundsprovided underArticle 10as may be specified inthe reservation 2 Recognition and enforcement of decision given in a Contracting State which has made the reservation provided 10 for in paragraph 1of thisArticle may be refused in any other ContractingStateonanyoftheadditionalgroundsreferred to inthat reservation» Itisclear in our opinion from the wordingofArticle 17,above, that whatever the exact nature of the reservation made by the 15 United Kingdom under such Article it may have rendered applicable grounds provided under Article 10

(1)of the Convention but ithasnotrendered applicable Article 10

(2)of the Convention For all the foregoing reasons the order of suspension or 20 adjournment of the proceedings made by the Distnct Court of Lamaca, asaforesaid, on27July 1987hastobesetaside and the saidDistnctCourthastoproceedtodeterminetheapplication of the appellant Minister of Justice which was made for the recognitionand enforcement oftheordermadebytheHighCourt 25 ofJustice in England on 19May 1987 Thisappeal is,therefore,allowedaccordingly,butwithnoorder astoitscosts Appeal allowed with no orderastocosts. 540 30