Harris Kyriakides | View firm profile
The recent Supreme Court’s case under the title: MINISTER OF JUSTICE AND PUBLIC ORDER (AS A CENTRAL AUTHORITY BASED ON THE LAW (Law 11 (III) / 94) AFTER AUTHORIZATION SAVVA v. GIORKATZI, E12/20/20(The Case) which was issued by the Supreme Court of Cyprusis unprecedented for the Cypriot Courts as the Court, decided although there was an abduction in term of the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (The Convention), not to order the return of a child to his habitual residence based on psychological factors.
Due to Article 1 of the Convention, the Convention’s object is to secure the prompt return of children wrongfully removed to or retained in any Contracting State. Also, according to Article 12 of the Convention,where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of thecommencement of the proceedings before the judicial or administrative authority of the Contracting Statewhere the child is, a period of less than one year has elapsed from the date of the wrongful removal orretention, the authority concerned shall order the return of the child forthwith. Article 13(b) of the Convention has high importance for the procedure of the return of the abducted children as it creates an exception in the rule of Article 12. Specifically, Article 13(b) provides that the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.Last but not least, Article 11(4) of the Council Regulation (EC) No 2201/2003 (The Regulation) is also relevant as it limits the exception of article 13(b). According to Article 11(4) of the Regulation, a court cannot refuse to return a child on the basis of Article 13(b) if it is established that adequate arrangements have been made to secure the protection of the child after his or her return.
Meaning of “grave” and “intolerable situation” according to Article 13(b)
First and foremost, in order for the exception of Article 13 (b) of the Convention to be applied, the risk to the child must be ‘grave’. According to Cypriot and English case-law, the term ‘grave’ qualifies the risk and not the harm to the child. It indicates that the risk must be real and reach such level of seriousness. As for the level of harm, it must amount to an ‘intolerable situation’, that is a situation in which this particular child in these particular circumstances should not be expected to tolerate. Furthermore, it must be noted that these words can be applied just as sensibly to physical or psychological harm. More precisely, the English and Cypriot case-law have recognized that grave risk can be found where the father has verbally and physically abused the mother in the child’s presence but did not physically abuse the child. In such cases courts have noted the psychological harm inflicted on the child witnessing the abuse of the parent and the increased risk that the child would be similarly abused.
The recent judgment of the Cyprus Supreme Court
The Cyprus Supreme Court, confirming the first instance judgment, decided that although the child was wrongfully removed from the United Kingdom to Cyprus by its mother, the exception of Article 13(b) should be applied. The mother of the child claimed in her opposition that her husband was systematically beating her in front of her daughter by using excessive violence. The Court, based on the relevant case-law, considered that the mother (the defendant) satisfied the high level of evidence of a serious risk of harm to her daughter in accordance with Article 13(b). Explicitly, the Supreme Court decided that this domestic violence was establishing a grave risk and the return to United Kingdom would expose the child to physical and especially psychological harm. Moreover, other factors taken into account by the Court were: the difficulty of the mother to find any job in the United Kingdom, the little ties of the child with the United Kingdom and the fact that the father did not contribute anything to the upbringing of the child. As a result, as adequate arrangements have not been made to secure the protection of the child, the Court unanimously ordered the non-return of the child to the United Kingdom.
Undoubtedly, it can be argued that the approach of the Court in this case was right as all the relevant factors were considered without ignoring the primary purpose of the Convention which is the security of the prompt return of children wrongfully removed to or retained in any contracting State, as mentioned above. The Court, held that the risk of harm to the child was greater than the need for her return by applying correctly the principle of proportionality and the criteria which are derived from the relevant case-law for the application of Article 13(b). In addition, the importance of this case is noticeable from themodification of its previous approach in cases Σάββα ν. ΥπουργούΔικαιοσύνης και Δημόσιας Τάξης (2002) 1 ΑΑΔ 1228, 1236and Νικολάου ν. ΥπουργούΔικαιοσύνης και Δημόσιας Τάξης (2008) 1 ΑΑΔ 1311, 1333. In these cases, the Supreme Court held that the high level of evidence of a serious risk of harm to the child was not satisfied.It can be noted that in a cases where a child returns to the State of its habitual residence, and wherethere is a grave risk of suffering physical or psychological harm upon the return, the European Parliament Ombudsman, can intervene to mitigate the situation,according to the Regulation 2201/2003.The institution of theEuropean Parliament Ombudsman is incredibly important in international children abduction. For more information regarding the European Parliament Ombudsman please visit the link.