1 CUR. 1988April7 (A.LOEOU,P.,MALACHTOS,PIKIS,JJ.) 1.ELENAELUNA, 2. CHARALAMBOSPAPAKYRIACOU, ^ Appellants-Respondents, v. MINISTEROFJUSTICEASCENTRALAUTHORITY ACCORDINGTOLAW36/86 ONBEHALFOFLOIZOS MICHA

Decisions Concerning Custody

Children and Restoration

Custody

Children—Art.10.1(b)—Ambit

. InternationalConventions —Mutuality, principle

. 5 10 15 .20 Loizos Ellina isa British subject

Cypriot origin, resident

the United Kingdom.ElenaEllinaisaCypriot national.Theygotmarried 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. ThechildwasaBritishsubjectandaresidentoftheUnited Kingdom. The father reacted swiftly. Upon petition byhimtothe High Court inEnglandheobtainedanorderundertheEuropean Convention on Recognition and Enforcement

Decisions Concerning Custody

Children and Restoration

Custody

Children.The order was for the return

the child tothe United Kingdom. Both the United Kingdom and Cyprus are signatones to the said Convention*. The Ministerof Justice

the Republic

Cyprus, the CentralAuthorityundertheConvention,appliedtotheDistrictCourt

Lamaca for recognition and enforcement

the English order. •RatifiedbyLaw36/86. 239 Ellina τ . Minister

Justice

the Convention, the provisions

Art. 10

.1*, which provide for additional grounds

denial

recognition

a foreign 5 order,arenotapplicable tothecasein hand. Held,dismissingtheappeal:

mutuality, an English ordermaybe opposed inCyprus onthesamegroundsasa Cyprus order can be opposed underthe Conventioninthe United Kingdom. Hencethe trial Court misdirected itself in declaring Art. 10 10.1tobe inapplicable.

Art. 10.1 cannotbe legitimately invoked.

the facts put before the trialCourt, does notdiscloseanynoticeablechangeinthecircumstancesof the 15 childorthe family.

Art. 10

.1 expressly enjoins thatchanges resulting from mere change in the residence

the child after improper removal, should be excluded from the range

relevant circumstances. 20 Enforcement and recognition

an order may be deniedunder Art. 10.1(b)onlyinthe faceof (a)circumstancesrelevant to thewellbeingofthe child,suchastorender(b)the decisiontoreturnthechild manifestly antagonistictothewelfare

thechild.Onlyanextreme change

relevant circumstances may produce that result, a 25 corollary

the employment

the word «manifestly», that is, beyond controversy. Appealdismissed. Noorderas tocosts. Appeal. 30 Appeal by respondentagainst the judgment

the DistrictCourt

Lamaca (Arestis,D.J.).datedthe6th February, 1988 (Appl.No. 3/87) whereby an order for the recognition and enforcement

the orderof High CourtofJusticein England (FamilyDivision) was made ordering thereturnof the child tothe UnitedKingdom. 35 P. Demetriou,for the appellants. •Articte 10.1oftheConventionsisquotedatpp.243-244post 240 1C1_B. HHnav.Wiileterof Jwtlce A. Evangehu, Senior Counsel

the Republic, for the respondent. Cur. adv. vult. A.LOIZOUP.:ThejudgmentoftheCourtwillbedeliveredby 5 Pikis,J. PIKISJ.: Loizos Michael Elliria isa British subject

Cypriot origin. He isa resident

theUnited Kingdom. Elena Ellina isa Cypriot national, the holder

a Cypriot passport. They got marriedin1984(ecclesiasticallyinCyprusaccompaniedbyacivil 10 marriageintheUnited Kingdom).Followingtheirmarriagethey settledintheUnitedKingdom.In1985agirlwasbomtothem. In thecourseoftimerelationsbetweenthemdeteriorated.Elenafelt unhappyintheUnitedKingdomandlongedtoreturntoCyprus. InApril1987shegaveventtoherwishesandreturnedtoCyprus. 15 Unknowntothefatherandcontrarytohiswishes,shebroughtthe child with,her to Cyprus.The child wasa British subject and a residentoftheUnitedKingdom. The father reacted swiftly; he petitioned the High Court in England (Family Division) to order the return

the child to 20 England. The Petition was founded on the provisions

the European Convention on Recognition and Enforcement

Decisions Concerning Custody

Children and Restoration

CustodyofChildren (hereafter referred toastheConvention),to which both the United Kingdom and Cyprus are signatories. 25 CyprusratifiedtheConventionthatbecamepartofourmunicipal law(Law36/86). TheHighCourtofEnglandordered,pursuanttotheprovisions

theConvention,thereturnofthechildtotheUnitedKingdom on the ground that she had been illegally removed from its 30 jurisdiction. On28th May, 1987,the order wasaddressed tothe appropriate authority

the Cyprus Republic, the Ministry

Justice, for implementation. The Minister

Justice, the central authority under the Convention, applied tothe DistrictCourtof Larnaca,wherethemotherandthechildresided,forrecognition 35 andenforcement

theEnglishorder. On 27th May, 1987, the hearing

the application for recognition and enforcement was suspended pending the determination

Custody Application 11/87 submitted to the DistrictCourtbythemother.OnherreturntoCyprusthemother 40 initiatedproceedings for the custody and care

the child.The 241 PiklsJ. EUtnav.Ministerof Justice

the District Court

Lamaca suspending the application for the recognition and enforcement

the order

the High Court

England. The Supreme Courtdecided thattheDistrictCourthad nojurisdiction to suspend the proceedings for recognition and enforcement

the English order and remitted the case back to the District Court

Lamaca tobe dealt with according to law (CivilAppeal 7450TheMinisterofJustice, astheCentralAuthority underLaw 36/86, on behalf

Loizos M. Eilinas,

London v. 1. Elena Ellina,

London; 2. Charalambos Papakyriacou,

Lamaca*). 5 10 Art. 10.2.

the Convention was inapplicable, it was pointed out, inthe absence

the pre-conditions rendering itoperative. At the resumption

the hearing

the application for recognition and enforcement

the English order, the District Court

Lamaca took the view that Art. 10.1

the Convention 15 was also inapplicable, notwithstanding the reservation made by the United Kingdom underArt. 17.1of the Convention. The only grounds upon which recognition and enforcement could be deriied were those enumerated in Art. 9.1

the Convention, noneofwhichhadbeensubstantiated. Inthefaceofthisfindingan 20 order for the recognition and enforcement

the English order wasmadeorderingthereturnofthechildtotheUnitedKingdom. Themotherappealed contendingthatthetrialJudgewaswrong in holding that Art. 10.1 was inapplicable. Consequently the case should, once more, be remitted to the trial Court to examine 25 whether recognition and enforcement

theEnglish order should be denied ontheauthorityofanyoneormoreofthegroundslisted inArt. 10.1.CounseloftheRepublicespousedthesubmission that the trial Court erred in ruling that Art. 10.1 was inapplicable. Nonetheless he invited the Court to dismissthe appeal considering 30 that the facts founding the opposition to the enforcement

the English order left unaffected the outcome

the case asthe facts (disclosed in the affidavit

the appellant) and circumstances

the case, could not giverisetothe legitimate invocation

anyof the grounds

opposition enumerated inArt. 10.1. 35 The learned trial Judge erred in holding that Art. 10.1 was inapplicable and was wrong in interpreting the decision

the Court

Appeal (CivilAppeal 7450)aswarrantingsuch a finding. The reservation made by the United Kingdom and sequential *

Justice POds J. applicability

Art. 10.1 were not debated before the Supreme Court.

The issue had been specifically raised onlyatthe resumed hearing. The Supreme Court initsjudgment did contemplate the possibility

Art. 10

.1 becoming applicable in the face

a 5 reservation

a signatory made under Art. 17.1.As a matter

fact, the United Kingdom deposited a reservation simultaneously withthesignatureoftheConvention (20thMay,1980).Asaresult recognition and enforcement

an order for the return

a child to thejurisdiction

a foreign Court that issued the order may be 10 denied in addition to any other grounds provided for in the Convention, on thebasisofthegroundsenumerated inArt.10.

1. Bytheprincipleofmutuality,an Englishordermaybeopposed in Cyprus on the same grounds as a Cyprus order can be opposed under the Convention in the, United Kingdom. Hence we 15 conclude that the trial Court misdirected itself in declaring Art. 10.1tobe inapplicable. 20 Art. 10.1of the Convention provides: «
2. In cases other than'those covered by Articles8 and 9, recognition and enforcement may be refused notonly on the grounds provided for in Article 9 but also on any

the following grounds: (a)ifitisfound thattheeffects

thedecision are manifestly incompatible with the fundamental principles

the law relatingto the family and children intheState addressed; 25 (b) if it is found that by reason

a change in the circumstancesincludingthepassageoftimebutnot including a mere change inthe residence

the childafter an improper removal, the effects

the original decision are manifestly no" longerinaccordance withthewelfare

the child; 30 (c)ifatthetimewhen theproceedingswereinstitutedinthe State

origin: (i) the child was a national

the State addressed or was habitually residentthere and nosuch connection existedwith theState

origin; 35 40 . (ii)thechildwasanationalboth

theStateoforiginandof 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 a third State, pursuant toproceedings begun before 243 prusj. Bunav.MinisterofJustice

the requestforrecognition or enforcement, and ifthe refusal isinaccordance withthewelfare

thechild». Paragraphs (a), (

1. c)and (
2. d)cannot be legitimately invoked in opposition totheapplication forrecognition andenforcement and no such suggestion has been made either. The only ground that 5 could be relied upon is that set out in para.(b). Admittedly it involves ponderation

relevant facts associated with «changein the circumstances

thechildand family including thepassageof time».Careful consideration

the facts put before thetrialCourt, especially those set out in the affidavit

the mother, does not 10 discloseanynoticeable changeinthecircumstancesofthechildor family. Para, (b)

Art. 10

.1 expressly enjoins that changes resulting from mere ohange in the residence

the child after improper removal,should be excluded from the rangeof relevant circumstances. The facts deposed to by the mother are in 15 substance directed towards eliciting changes resulting from the change in the residence

the child as a result

her improper removal.Assuchtheyareirrelevant.Herreasonsforbringingover the child to Cyprus are primarily related to whatshe perceives to be her welfare and the way that such well being may benefit her 20 infant daughter. Enforcement and recognition

an order maybe denied under Art. 10.1(b) only in the face

(a) circumstances relevant to the well-beingofthe child,such astorender (b)the decision to return the child manifestly antagonistic to the welfare

the child. Only 25 an extreme change

relevant circumstances may produce that result,acorollaryoftheemploymentoftheword«manifestly»,that is,beyond controversy. The Convention, we mayremind, set out to achieve an important goal to protect children from the capricious conduct

parents taking the form

removal

the 30 child from the country

its residence as a result

a parental conflict. TheConvention aimstolessenhardshiptochildren 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 35 behind. The Convention aims to put an end to the unlawful removal

children.The childanditscustodymustnotbe madea 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 40 unavoidable lossand hardship toa child occasioned bythe break up

the marriage

itsparents. 244 ICLM. Bfeiav.MinisterofJustice POdsJ. 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 5 recognition and enforcement in that spirit and endeavour to determine them asspeedily aspossible. The appeal is dismissed; the order for recognition and enforcement

the English order is affirmed. There will be no order astocosts. 10 Appeal dismissed. No orderasto costs. ,245