15 February 2013
Traslado y retención - arts. 3 y 12 | Grave riesgo - art. 13(1)(b)
United Nations Convention on the rights of the Child, Articles 6(2) and 9(1)
Child wrongfully retained at age 12 – Citizen of Georgia – Divorced parents – Father national of Georgia – Mother national of Greece – Parents had joint custody – Child lived in Cyprus from 2008 until August 2012 – Application for return was filed with the Central Authority on 18 December 2012 – Main issue: Article 3 – the child’s State of habitual residence was Cyprus and there was no evidence to support the use of one of the exceptions to return under the 1980 Convention.
The child was born on 27 November 2000 in Tbilisi, Georgia. His parents married in 1999 and divorced in 2012. The father is a citizen of Georgia and the mother is a citizen of Greece. In 2008 the couple settled in Cyprus. Since 2011 the father has lived in Georgia. The child lived in Cyprus from 2008 until August 2012. On 14 August 2012 the mother consented in written form for the child to travel with his father to Georgia on holiday. The parents agreed that the child should return to Cyprus before the beginning of a school year. The father refused to return the child to Cyprus.
The court ordered the return of the child to Cyprus, none of the exceptions to return as defined by the 1980 Hague Convention were present in the case. The child should be returned to Cyprus.
However, the decision was not enforced because the child objected.
The court ruled that Cyprus was the country of habitual residence of the child. Based on the factual evidence of the case, the minor had been wrongfully removed in accordance with Article 3 of the 1980 Hague Convention. The court stated that in accordance with Article 12, the main aim of the convention is to protect children from the harmful effects of the removal, to prevent the wrongful removal of children and to return children back to their country of habitual residence.
The court considered the exceptional grounds of return order and concluded that the respondent father who was against the return of the child has not presented the court with evidence that would confirm the existence of a serious harm to the child upon return to the Republic of Cyprus.
Taking into consideration the evidence submitted by the parties, including the report made by the LEPL Social Service Agency, the court considered that the non-return of the child would delay his learning and contribute to a feeling of instability which would have a negative effect on the child. Due to the fact there was no evidence that the return of the child would expose her to danger and there is no evidence of the exceptional circumstances required in order to refuse to return the child to his state of habitual residence.
Author: Nata Varazashvili