Ministry of Justice and CM (Cyprus 1996) District Court of Nicosia Appl. No. 405/96 =========================================================== DISTRICT COURT OF NICOSIA Before: G. Mettouris, D.J. Appl. No. 405/96 Between: The Minister of Justice and Public Order (as Central Authority for the purposes of the Convention on the Civil Aspects of International Child Abduction) Applicant and CM, of Nicosia Respondent This application having come up for hearing in the presence of Mrs. G. Frangou, advocate for the applicant, and Mr. Eliades, through Mr. T. Papadopoulos, advocate for the respondent, and after everything said on behalf of the parties was heard, THIS COURT HEREBY ORDERS the return of the minor MGM to Warren County of New York, USA. It is to be understood that the Central Authority of the Republic of Cyprus will contribute to the implementation of this Order. AND THIS COURT FURTHER ORDERS that the respondent should pay the cost that will be required for the return of the minor to Warren County of New York, USA. Given on 18.12.96 (18 Dec 96) Drawn up on 18.12.96. (18 Dec 96) (Sgd) G. Mettouris D.J. True Copy (Sgd) Registrar ENDORSEMENT: If you the above mentioned respondent fail to obey the above order you are liable to arrest and your property to confiscation =========================================================== DISTRICT COURT OF NICOSIA Before: G. Mettouris, D.J. Appl. No. 405/96 Between: The Minister of Justice and Public Order (as Central Authority for the purposes of the Convention on the Civil Aspects of International Child Abduction) Applicant and CM, of Nicosia Respondent Date: 18.12.1996 (18 Dec 96) Appearances: For the Applicant: Mrs. Frangou For the Respondent: Mr. M. Eliades JUDGMENT This Application was filed by the Minister of Justice and Public Order (as Central Authority for the purposes of the Convention on the Civil Aspects of International Child Abduction) by which he asks for:- 1. An order by the Court ordering the return of the under-aged daughter of the Respondent MGM to her mother SMM, of New York, USA. 2. The cost for the return of the minor to the USA. It is based on sections 4 and 5 of Ratification Law 11(III)/94 and Arts. 3, 4, 5, 6, 7, 8, 11, 12, 13, 18, 19, 26, 30, 35 and 38 of the Convention on the Civil Aspects of International Child Abduction concluded at the Hague on 25 October 1980 and ratified by the Republic of Cyprus through the above Law 11 (III) of 1994. The facts on which it is based are set out in the attached affidavit of Ann Shakalli from Nicosia dated 22.5.96. In paragraphs 1-3 of her above-mentioned affidavit Ann Shakalli says the following: "1. I am an administrative officer in the Public Administration and Personnel Service, posted to the Ministry of Justice and Public Order since August 1985. 2. I am responsible for the handling of cares based on the Convention on the Civil Aspects of International Child Abduction and I make this affidavit relying on facts which know and on information that has come to my knowledge from official documents. 3. The above Convention to which the Republic of Cyprus acceded came into force in Cyprus on 1 February 1995, the USA stated that it accepted the accession of the Republic of Cyprus and consequently the Convention came into force between Cyprus and the USA on 1.3.95. Under article 4 of the Convention the Minister of Justice and Public Order was designated as Central Authority in the Republic of Cyprus for the purposes of the Convention." Furthermore, paragraphs 5-14 state the following: "5. Under a Judgment of the Family Court of New York, dated 2 February 1996, the custody of underaged MGM has been entrusted jointly to the respondent and her mother SMM. A certified copy of the order of 2.2.96 is attached as Exhibit 1. 6. Under para. 2 of the above order the mother of underaged MGM had her physical custody. 7. Under para. 5 of the said order none of the two parents of the minor could remove her from Warren County of New York except following a subsequent order by the Court or with the specific consent of the other parent. 8. Through a subsequent order dated 10 April 1996 the Family Court of New York ordered that none of the litigants (that is the Respondent and the mother of the underaged girl) could remove underaged MGM from Warren County of New York for a period that would involve overnight stay. A certified copy of the order of 10.4.96 is attached as Exhibit 2. 9. On 19 April 1996,the Respondent picked his daughter from the school so that she might spend the weekend with him, as it had been arranged. 10. On 20 April 1996 the mother of the girl received a telephone call from the Respondent that he and the underaged girl were in Cyprus. 11. The mother of the girl in an Application dated 22 April 1996 asked for her return to the USA on the basis of the above mentioned Convention. The application is attached as Exhibit 3. 12. By a subsequent order dated 5 May 1996 the Family Court of New York declared as wrongful, under Article 3 of the Convention, the removal of the underaged girl to Cyprus. A certified copy of the order of 5.5.96 is attached as Exhibit 4. 13. The said order says that immediately before the removal and retention of the girl in Cyprus by the Respondent, her mother SMM exercised in reality custody rights. 14. At all material times before her wrongful removal from the USA the underaged MGM was habitually resident in Warren County of New York." The objection of the Respondent, father of the underaged girl, is based on the Civil Procedure Rules D.48 I.4 on Law sect. 11 (III) 94 and on the Convention on the Civil Aspects of International Child Abduction (particularly Art. 13). The facts on which he relies are set out in his sworn statement, dated 31.10.96 where in para. 1 and 2 he says that: "1. I am the Respondent in the application under the above number and title and father of the underaged MGM and know the facts of this case very well. 2. I have read the sworn statement of Mrs Ann Shakalli from Nicosia, dated 22.5.96, which has been filed in support of the above application and except where I expressly make an admission I disagree with and deny all the allegations contained in para. 1-17 of the aforementioned sworn statement." He further refers to the history of his marriage and the conditions in which he lived with his wife and his underaged daughter and in para. 4-19 he stresses the following: "4. After my return to New York in December 1995 I saw, on a number of occasions, my wife with a man named CTN, who was evidently much older than she and with whom, as it emerged and as my wife herself later revealed, had an extramarital affair. The said CTN, as I established, was 53 years old, married and lived with my wife and my daughter in the house of my wife's mother and repeatedly slept in the same room with my daughter. Indicative of the bad and dangerous influence this relationship and more specifically the above mentioned CTN had on the mental and physical health of our daughter is the fact that the court order dated 2.2.1996 which the applicant attaches as Exhibit "1" in the sworn statement that supports his application says clearly in para. 4 that any contact with the aforementioned person is prohibited. Following these developments I was personally evicted from the house of my wife's mother and had to live elsewhere. It must be mentioned at this point that the younger sister of my wife lived in the same house with my wife and MGM. Though married this woman had an affair with a married man who happened to be a drug user and our daughter was in daily touch and with, was left to the "care" of these people. A factor that contributed to the unacceptable situation in the house of my wife's mother were also the frequent visits of her brother, who, though married, had an out of wedlock child with a young girlfriend. 5. My wife on my return to New York had problems of excessive consumption of alcohol. I ascertained in the past that these problems had been aggravated given that during our contacts I saw empty bottles of alcoholic beverages in her car. 6. On or or about 2.8.95 my wife, without my consent, withdrew all the money we had deposited in a joint account and transferred it to her name in another account without giving me any explanation. 7. After filing my application for the custody of MGM with the New York Court in January 1996, the principal of the school in which my wife worked revealed to me that my wife had another affair with some school teacher who was 59 years old and whom she met often in the presence of our daughter. 8. On or on about 9.2.1996 my wife repeatedly refused to allow me to have access to our daughter in accordance with the Court order in force at the time and repeatedly prevented me from doing this with the result that I filed an application for contempt of court against her. 9. Throughout our marriage and as far as I observed my wife repeatedly prevented the child from learning Greek which is her father's language and repeatedly prevented her from going, or refused to allow her to go, to an orthodox church while she was baptized in accordance with the rites of the orthodox church" In paras. 14-19 he describes the conditions of living and adjustment of the underaged child in Cyprus as follows: "14. Our daughter MGM, as it is established also in the report of the competent Welfare Office officer which has been included in the Court file, does not want to return to the USA. The provision of the Convention is clear. More specifically in Art. 10 it says that the return of the child must be voluntary. 15. Without prejudice to what is mentioned above it in evident that the return of our daughter to the USA involves the serious risk of exposing her to physical or psychological hard or placing the child in an intolerable situation. The conditions in which the child lived and was brought up under the care of my wife were and continue to be unacceptable and dangerous to the psychological and, consequently, the physical health of the child. On the contrary MGM, as the Welfare Office officer also establishes, has adjusted very quickly, has got used to her school in which she is a very good pupil, is learning the Greek language quickly and has made friends as it is certified also by Exhibit "B" which is the teacher's report. Also the child enjoys perfect health and since her return to Cyprus she has grown taller and gained weight and at this moment she is a very healthy girl both mentally and intellectually as it is confirmed also by Exhibit "C", which is the relevant medical report. 16. In contrast to the unacceptable conditions in which MGM lived during her stay in the United States where she was surrounded daily by persons of low morality the child is now living with me and my mother who is very fond of her and takes care of her with excellent and healthy building installations and all necessary comforts in a safe area and very close to the house of my sister where her cousins, with whom she has extremely friendly relations, live. Generally MGM is very happy both with her family and her school environment and has repeatedly expressed both to me and to other persons the desire to stay in Cyprus. 17. Indicative of the indifference with which my wife approached both the child and our marriage is that in the last six months we have been living in Cyprus very few times did she try to communicate with the child and when she did her aim was to create to the child feelings of insecurity and hate towards me. 18. I honestly believe that if an order is issued for the return of my daughter to the USA where both the personal conditions of my wife and more specifically of the town in which she lives are much worse than those prevailing in Cyprus and more specifically inferior to those prevailing in the house where the child now lives with me will expose her to a terrible psychological and consequently physical harm which I have no doubt will place her in an intolerable situation. 19. My feelings towards MGM are feelings of unbounded affection and love and I am doing everything possible to ensure the best conditions for her upbringing. I am an American university graduate and work as teacher at the College of Tourism with high emoluments as it is stated also in the Welfare Office report and I am in a position to offer infinitely better conditions, both from the point of view of material welfare but also from the mental and psychological point of view, than those offered to the child by her mother who, during the period they lived away from me, offered her only an environment of illicit affairs, drink abuse and low morality persons and generally conditions which can be described as anything but appropriate for a seven-year old child. During the hearing the first witness to give evidence was Maria Efthymiou, a Welfare Office officer, who said that on instructions from the court she had prepared a relevant report which she produced and was marked as Exhibit (A). She then gave a detailed explanation of the contents of the said report and replied to various question put to her by both advocates. She further clarified that what she says in her report is based on information provided by the parties. I shall refer to the content of this report and also to what the said witness told the court at a subsequent stage in the evaluation of the whole evidence. Evidence was then given by Ann Shakalli, who works as Administrative Officer at the Ministry of Justice and Public Order. After confirming the content of her affidavit which is date 22.5.96, she analyzed and explained the whole procedure of ratification, accession to and acceptance on the part of the contracting states for the purposes of implementation of the above convention, clarifying that this came into force between Cyprus and the USA on 1.3.95. Replying to a relevant question, she said the corresponding central authority of the USA is the State Department with which the Central Authority of the Republic of Cyprus has communication and cooperation regarding the affairs they handle. On cross-examination she said that the above Convention was enacted into law by the House of Representatives and published in the Official Gazette of the Republic on 1.7.94. She repeated that the Central Authority of the USA is the State Department, adding that the Central Authority of the Republic of Cyprus has been informed about this matter through a relevant circular. Asked further about this point she replied that the US State Department is the only Central Authority, clarifying that she knows this for certain personally. In reply to another question she said when an application by an individual is conveyed by the Central Authority of a country which is signatory to the Convention the Central Authority of the Republic of Cyprus has no reason to dispute what the said Central Authority which conveys the application states nor is certification of any document needed, in accordance with the aforementioned Convention. Regarding the judgment of the Family Court of New York dated 2.2.96, Exhibit 1, she said that she did not remember whether it was original, clarifying that it was sent to Cyprus by the US State Department and not by the Court directly, but in the document itself there is a certification that it is a true copy, that is, she said, the certification is original like that of the other Exhibits. The next to give evidence wad the mother of the minor SMM who said that with her husband-respondent they were in a divorce procedure and in January 1996 an application was filed by him before the family court of New York for the settlement of the matter of custody of their under-aged daughter. The said Court, she said, issued an order under which they would have joint custody of the minor while she would have the physical custody of the minor. The order further provided also about the question of the access of her husband to the minor and he actually exercised his rights in accordance with the said order. She then said that apart from above-mentioned order another order Was issued on about 10.4.96 which provided that neither she nor her husband would remove the minor from the area of Warren County of New York. The last time her husband took the minor in accordance with the above Orders was on 19.4.96.He should have taken her back on the night of 22.4.96 at 8:00 p.m. But he did not take her back nor at any other time later. She herself did not know where her daughter was until her husband informed her by telephone on 20.4.96 the she was in Cyprus with him. Following this development she communicated with the US State Department as Central Authority and then made an application for return of the minor to the place where she lived before she was taken to Cyprus. She sees Exhibit 3 and states that this is the application she made, confirming also the signature at the bottom. Continuing she said that after the removal of the minor to Cyprus she first had a telephone communication with her on some occasions but after that she had no communication despite the many efforts she made she did not communicate with her for weeks and months. When she telephoned to Cyprus various reasons were given her for the purpose of preventing her from communicating with the minor and sometimes her husband pretended not to understand in order to reply to her to what she told him and left her to to visit. She came to Cyprus on 16.8.96 and stayed until 16.9.96. During this period she tried to have access to her daughter and the first week she managed to telephone her and see her for 5 hours in one day but she could not see her afterwards. She also saw her again for 2 hours the day before her departure. On the two occasions she saw the minor she was in the house where her father lives. She asked that they go with the minor somewhere else so that they might have the opportunity to be for a while together but CM (Respondent) did not allow this. She came to Cyprus again on 31.10.96. She asked to see her daughter and saw her only once, on Saturday 2.11.96, during her birthday party. After that date she did not see her again despite the efforts she made because CM (Respondent) prevented this. In her cross examination she referred again to the efforts she made in order to have access to her daughter and to the problems and obstacles she encountered. When it was submitted to her that her husband had suggested that she too should go to Pedoulas where her daughter was holidaying so that they all might stay together and she had refused, she repeated that her husband did not allow her to be alone with her daughter, adding that she was in confrontation with her husband and she could not be with her daughter in his presence. It was submitted to her that the reason why her husband took the minor from the house on 19.4.96 was because she herself consented that he should take her with him for the whole period of the holidays and she replied that she denied the allegation and referred to the court order on the basis of which the rights and obligations of the parents of the minor were exercised. It was also submitted to her that she herself had proposed to her husband a compromise in the whole matter and she replied that she had asked him to return MGM immediately. She was asked whether she knew a certain CTN and she replied that she did. She was then asked whether she had an extramarital affair and the Court, following an objection by Mrs. Frangou, did not allow the question for the reasons explained in the minutes which will be set out also in this Judgment at the appropriate stage. In response to the submission that the Court Order, Exhibit 1, was temporary and did not apply now she replied that "MGM is in Cyprus". In testifying the Respondent, father of the minor, CM, after adopting the contents of his above-mentioned affidavit, said, inter alia, that on 19.4.96 and at about 2:45 pm he picked the minor from the school and then they dropped by the house where she lived with her mother in order to take her suitcase with the clothes and spend the spring holidays together. On that day, which was a Friday, there stared his access to his daughter on the basis of the Court Order. His wife had given her permission to him to keep her until Monday week when she would go back to school. He then said that when he made the application to the New York Court he lived in the same house with his wife but was then evicted and first stayed in a hotel sod later rented a flat in a nearby district. He agreed that, after coming to Cyprus with the minor, he telephoned his wife and informed her about his action. But at the end of their telephone communication she gave him her consent for MGM to stay in Cyprus. Justifying his action in bringing MGM to Cyprus he said that the living conditions of the family in New York had affected her psychologically and also her health. The minor had many times asked him to protect her from the family environment of his wife and also wanted to live with him. His wife did not allow him to have access to MGM except in the cases allowed by the Court Order. She also prevented their daughter from learning the Greek language and going to an orthodox church. I want to state, he added, that many threats were made against me by persons of the close entourage of my wife, adding that in view of the whole situation that prevailed in New York he decided that the best way to protect the minor was to bring her to Cyprus. Continuing he said that he had seen the Order. of the New York Court, Exhibits 1 and 2. The Order, Exhibit 1, was issued following an application by him. As regards Exhibit 2 he was not aware that such procedure had taken place on 10.4.96. This Order, he said, was not even served on him and he saw it for the first time in the present application. On cross examination he said that on 19.4.96 he took the minor so that they might spend the spring holidays together and when he was asked whether he had told his wife where they would spend the holidays he replied that he never told her that they would spend the holidays in America and when asked whether he had told her that he would bring the minor to Cyprus he replied: "I did not tell her that I shall bring the child to Cyprus". He rejected the submission that he took her on 19.4.96 and would take her back on 22.4.96 and added that he had formally asked to have her with him for the entire spring holiday. When it was submitted to him to him that his wife had not consented to his keeping her beyond 22.4.9 he rejected this, adding that he had given him her convent for the entire holiday. At this point he was asked if they would spend the holidays in America and he replied: "We did not agree on something like this. She gave her to me to keep but where that was my responsibility". He was asked whether he knew (illegible) and whether he was aware of the contents of the Order, Exhibit 1, and he gave an affirmative reply. He was then asked whether in the said Order there was any provision which allowed him to take the minor wherever he wanted and he replied that, in accordance with legal advice he had received. the order did not restrict him from taking her anywhere when she would be under his custody, meaning that he could take her even out of the USA if he wanted He then agreed that the conditions he claims prevailed in the house and the family environment of his wife in New York existed before he came to Cyprus and before he made the afore-mentioned application to the New York Court,adding that these conditions started to prevail at the end of 1993 when he himself was in Cyprus. In the course of the hearing the advocate for the Respondent raised a question of disputing the authenticity of the signature of the mother of the minor on the application which is attached to the present application, Exhibit 3, and it was agreed by both parties that the matter should be examined by the police graphologest, and this task was undertaken by sergeant 3626 Kypros Kyprianou who had given evidence before the Court on 29.11.96. I am of the opinion that there is no need to deal further with the evidence of the said witness. The contents of Exhibits B, C and D he put before me and the replies he gave to a host of questions leave no room for doubting the genuineness of the said signature of the mother of the minor. EVALUATION OF EVIDENCE From the evidence before me there is no doubt-and these are the accepted facts-that both the Republic of Cyprus and the United States of America are signatories to the aforementioned Convention and that this came into force between them on 1.3.95, and the Ministry of Justice and Public Order of the Republic of Cyprus and the State Department of the USA are the respective Central Authorities for the purposes of the said Convention. The object and primary concern of the States which signed this Convention is demonstrated clearly and in the most emphatic manner by, inter allia, the contents of the preface which stresses their desire to protect internationally children from the harmful consequences of their removal or retention and for the creation of procedures that that will ensure their prompt return to the State of their habitual residence. But the entire text of this international Convention is inspired by the above principle and aim, focusing on the protection and welfare of children and at the name time strongly disapproving and discouraging actions that tend to adversely affect the normal life of children such as their wrongful removal or retention by any person. The first question that should be answered in the case we are examining is whether there has been indeed wrongful removal of underaged MGM from the USA to Cyprus in accordance with Art. 3 of the Convention, which provides that: The removal or the retention of a child is to be considered wrongful where- "(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 (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. The rights of custody mentioned in sub-paragraph above may arise in particular by operation of law or by reason of a Judicial or administrative decision or by reason of an agreement having legal effect under the law of that State." In this application from the evidence as a whole before me there is no trace of doubt, and it is an accepted fact, that the mother of the minor had the custody of the minor before the Respondent brought her to Cyprus and that she actually exercised this custody and would have continued to exercise it if the above removal had not taken place. Indeed, in this case, this custody was exercised also under an Order of the New York Court which is attached to the Application as Exhibit 1. Consequently, the prerequisites of the above article are fulfilled and my finding is that the minor was wrongfully brought to Cyprus from New York by the Respondent. Since my finding is that the child was brought wrongfully to Cyprus there arises now the question what the next step should be: A reply to this point is given us by Art. 12 of the Convention which provides that: "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 authorities of the Contracting State to which 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."... In the present case it is quite clear that the period that elapsed since the date of the wrongful removal of the minor until the start of the procedures before the Judicial or Administrative Authority of the Republic of Cyprus is shorter than one year and, therefore, the prerequisites of the above Article for the Court to order the immediate return of the minor to the place from which she was wrongfully removed are fulfilled. One of the reasons the Respondent invokes in his objection is that if the Court orders the return of the minor to the USA where both the personal conditions of his wife and the more general conditions of the country and more specifically of the town where she stays are much worse than those prevailing in Cyprus and specifically inferior to the conditions prevailing in the house where she now lives with him and this will expose the child to physical or psychological harm and create an intolerable situation for her. He bases this position on Art. 13 and more specifically on its paragraph (b). The said Article as a whole provides that: ARTICLE 13 Notwithstanding the provisions of the preceding Article, 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-- (a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or (b) 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. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence. Regarding the conditions which the Respondent claims prevail in the house and generally the family environment of his wife there is also extensive reference inter allia in the above paragraphs of his affidavit. ent. During the hearing an attempt was made on the part of the Respondent for the said conditions to become sub judice matters and the main axis on which the whole procedure of this application would revolve. Indeed during the cross-examination of the mother of the minor the question was put to her whether she had an extra-marital affair with a certain TN, a question to which Mrs. Frangou objected and the Court did not allow. Among the reasons for which the Court did not allow the above question and also certain others which concerned the above conditions, are the following: This application has as legal background the above Convention the primary object of which,is as I stressed above, the protection of minors from the adverse effects their illegal removal or detention has for them and for their family as a whole and further the taking of all necessary measures by the competent authorities of the contracting states so as to ensure their prompt and an for as possible early return to the place from which they were wrongfully removed. It is a common ground in this case that the Respondent himself filed an application to the family court of New York for settlement of the question of custody, access to and custody of the child and the said Court on 2.2.96 ordered that the two parents will have jointly the custody of the child and her mother her physical custody. It also regulated, inter alia, the manner of access of the father to his minor daughter. It should be noted that during the procedure before the said Court the Law Guardian appeared on behalf of the minor and in paragraph 15 of the said Order it is stated: "The Law Guardian shall report to the Court as to the status of the matter within 30 days". In para 5 of the said order it is stressed:- "Neither party shall permanently remove the child from Warren county except upon further order of the Court or specific consent of the other party". It is useful at this point to quote verbatim also para. 4 of this Order in which it is stressed that: "Neither party shall permit the child to be left alone with CTN or to permit the child to remain overnight at the Nacy residence". On 10.4.96 the same Court issued an amendment Order, Exhibit 2 of the application, which says the following in paragraphs 1 and 2. "1. Neither party shall remove MGM (born November 1, 1989) child of the parties, from Warren County, New York, for an overnight period. 2. All consistent provisions of the prior order shall continue." Thus while following an application by the Respondent himself, the above arrangement of the matters was achieved through the Court, on 19.4.96 he removed wrongfully the child to Cyprus invoking the conditions that existed even before he filed his above application, and he tried to exploit the present procedure in order to put before the Court for examination matters which were taken into consideration or should have been taken into consideration during the procedure before the Family Court of New York. The fact that the matters which concern the conditions the Respondent invokes were taken into consideration by the said Court is proved in the most clear and convincing manner by the above paragraph 4 of the order. But even if we accept that not all the conditions were set out before the Family Court of New York the responsibility rests with the Respondent himself who had the opportunity and the possibility to do this. That the said conditions prevailed at the time the Respondent filed the above application was admitted by him himself in giving oral evidence before the Court in this application. Beyond this, even if we assume that not all the conditions that prevailed in the environment of his wife were set out before the above Court or some of them emerged after the above arrangement was made the Respondent could, and I believe he can and has the right to do this in future, take lawful and indicated steps for re-examination of the question of custody, access to and physical custody of the child before the above Court of New York in whose jurisdiction the child had her habitual residence. The attempt of the Respondent to turn the present procedure into a new procedure of custody and physical custody of the child and to deflect it from the framework and the purposes of the present application could not be allowed by the Court. If this were done in the present case, I hold the view that the provisions of the above convention would be indirectly bypassed and it would be difficult, if not impossible, to implement them, taking into consideration all the circumstances of this case and particularly the manner in which the Respondent acted. Apart from my above observations and findings, it must be stressed that in the above Art. 1 it is clarified that in the assessment of the circumstances mentioned in this article the judicial or administrative authorities take into consideration the information that concerns the social background of the child which is provided by the Central Authority or another competent authority of the country of the habitual residence of the child. And the burden and the duty falls on the Respondent himself, who is opposed to the return of the child,to put before the Court such information and evidence. In this case not only was no such information and evidence produced but on the contrary the evidence I have before me which comes from the Central Authority of the USA are the above exhibits 1-4 which are attached to this application and to which I referred previously also and the contents of which are far from helpful to the position of the Respondent. Another reason the Respondent invokes why the Court should not order the return of the child to the USA is the desire of herself to stay in Cyprus, which, as he claims, expressed both to him and the Welfare Officer Maria Efthymiou. Regarding this matter it is stated on page 7 of the report prepared by the said officer, Exhibit A, that the minor expresses the desire to stay in Cyprus because it is more beautiful and the school is better. In her observations which are recorded at the end of the report it is stated:- The case concerns the minor child of the couple who have separated since January 1996. The child in staying with her father who provides satisfactory care and protection. The Family Court in America, as stated by the couple, gave temporary custody to both parents. The child lived until April '96 with her mother and her father had access to her on three afternoons a week and every second weekend alternately with overnight stay. Since April '96 when her father picked her from the school without the consent of her mother, the child has been living with her father in Cyprus. As the mother lives abroad it has not been possible to cross-check the information and to assess the possibilities of the mother and also her relations with the child. It is believed the communication of the mother with the child is indicated for her more normal psychoemotional development and the avoidance of estrangement in the long run. We note that the sensitive stage of age at which the child in makes it necessary for her to have continuous care and support in a stable family environment In testifying in court the above-mentioned officer said she had seen the minor only once at a meeting that took place in the house where she lives with her father. The meeting lasted one and a half hour and she clarified that on the day she saw the minor she had a meeting with her father and with her grandmother also. But she had a separate meeting with the minor also. She did not meet the minor in the presence of her mother. The above-mentioned Art. 13 of the above Convention provides that the judicial or administrative authority may refuse to order the return of the child if it establishes that the child is opposed to its return and is already of an age and degree of maturity that indicate that its views should be taken into account. In the case Re S (a minor, abduction (1993) 2 All E.R. 683, the English appeal court judged that it is possible not to order the return of the Minor if it objects itself to its removal and this can be done without the need of proof of the evidence of the above-mentioned Art. 13(b) about causing physical and psychological harm to the minor. In my view the formulation of the above article is clear. Even clearer is the desire of the contracting states to limit the cases where the Court could refuse to order the return of the minor to those exceptional cases in which the minor itself objects to its being returned but further the Court must have been convinced that it is already of an age and degree of maturity that indicate that its views should be taken into account. Indicative in this connection is the following extract from the above English judgment on page 691:- "The exercise of the discretion under Art. 13 The Scheme of the Hague Convention is that in normal circumstances it is considered to be in the best interests of children generally that they should be promptly returned to the country whence they have been wrongfully removed, and that it is only in exceptional cases that the court should have discretion to refuse to order an immediate return. That discretion must be exercised in the context of the approach of the convention-see Re A and another (minors) (abduction acquiescence) (l992) 1 All ER 929 at 924, [1992] Fam 106 at 122 per Lord Donaldson MR. Thus if the court should come to the conclusion that the child's views have been influenced by some other person e.g., the abducting parent or that the objection to return is because of a wish to remain with the abducting parent, then it is probable that little or no weight will be given to those views. Any other approach would be to drive a coach and horses through the primary scheme of the Hague Convention Thus in Layfield v Layfield (6 December 1991, unreported) in the Family Court of Australia Bell J ordered an 11 year-old girl to be returned to the United Kingdom because he found that she was of an age and degree of matturity for her wishes to be taken into account, he believed the those wishes were not to remain in Australia per se but to remain with her mother, who had wrongfully removed the girl from the United Kingdom to Australia. On the other hand, where the court finds that the child or children have valid reasons for their objection to being returned then it may refuse to order the return. Thus, in Re M (minors) (25 July l990,unreported) the court refused to order the return of three children aged 11, 9 and 8 to America. In the course of his judgment Sir Stephen Brown P said: I am, however, concerned for the children. I find that they do not object to being returned and that each of them has attained an age and a degree of maturity at which it is appropriate to take account of their views. I feel that I must take account of their views. Their views, however, are not determinative of the position and I have to consider how far they should affect me. I feel that I should give effect to their objection in thin case in the light of the fact that they give valid reason in my judgment for objection to going back to America into the care of their father, because of his former conduct. I consider that he has materially admitted this. I do not, therefore, propose to order their return. That is the sole extent of the order that I make. I do not determine custody rights or access rights or any other rights as between the parties. But in the light of the children's objection to being returned, I decline to order their return under the terms of the convention and the provisions of the Child Abduction and Custody Act 1985." Having in mind the above guidelines, in conjunction with the facts of the present application, I must now decide whether the prerequisites and those exceptional circumstances are fulfilled so that the Court may refuse to order the return of the minor to the USA. I note in the first place that the above Article expressly provides for the objection of the minor to her return to the USA. In this case,as it is stated in the above-mentioned report of the Welfare Officer, the minor expresses the desire to stay in Cyprus because it is more beautiful and the school is better. It may be said at this point that there is no clear refusal of the minor to return to the USA but a mere desire to remain in Cyprus. But even if I accept that this desire may be regarded as refusal to return there is nowhere and in no case Justification let alone any explanation for the reasons for which she objects to her return to the USA. The desire of the minor to stay in Cyprus, which was expressed at her meeting with the Welfare Officer that lasted one and a half hour, and what is more on the same day and at the same place she had a meeting with her father and grandmother, even though the meeting took place separately, can in no case satisfy the court that it is indeed refusal of the minor to return. Apart from my above findings I do not have before me any indication or any evidence as to the question of the age and degree of maturity of the minor indicating that her views should be taken into account. In the report of the Welfare Officer it is stated that the minor is 7 years old and in the observations it is recorded, inter allia, that, "..because the mother lives abroad it has not been possible to crosscheck information and to assess the possibilities of the mother and of her relations with the child. It is believed that the communication of the child with the mother is indicated for a more normal mental-emotional development and avoidance of estrangement in the long run. We note that the sensitive state of the age at which the child is makes imperative continuous care and support in a stable family environment." I hold the firm view that the above elements far from convince the court that the minor possesses much degree of maturity that that her views may be taken into account. In finishing with this matter I would I=.e to stress that fine conditions crested in the period from her wrongful removal to Cyprus which took place on 19.4.96 until the day the Welfare Officer met her were such that not only do they not rule out the possibility of the minor having been influenced by her father but on the contrary I may say that the minor has been influenced to a great extent both by the father himself and by the absence of contact with her mother. Suffices it at this point to underline the fact that the minor has been since January 96 away from her mother with very few telephone communications at the beginning but no communications at all at a later stage. Even when the mother of the minor came to Cyprus for the purposes of this application the Respondent prevented to a great extent her access to her daughter so much so that she was forced to file an application with this Court for settlement of the question of access to her daughter until the procedure relating to this application is completed. It must be stressed that even in the very few cases in which it became possible for the mother to have a meeting with her under-aged daughter this took place at the place where the Respondent wanted and always in the presence of another person or other persons. It is noteworthy that the mother and the minor never met alone. It is in the light of these facts and the whole evidence I have before me that I have reached the conclusion that the minor has been influenced by the whole situation as a consequence of her wrongful removal to Cyprus. Consequently, the allegation of the Respondent that the minor is opposed to her return can in no way be accepted by the Court. In his address Mr. Eliades claimed that the mother of the minor consented subsequently to the minor staying in Cyprus. This, he said, emerges from the evidence of the Respondent before the Court, in which he said that at the end of the telephone communication he had with the mother of the minor she gave him her consent for MGM to stay in Cyprus. Regarding this position, I have to say that in the sworn statement of the Respondent nowhere is an allegation made about subsequent consent of the mother of the minor. The general denial of the facts by the Respondent is not enough for him to involve afterwards the existence of facts which he does not include in his sworn statement in a positive and concrete manner. Beyond this remark of mine, it should be stressed that the mother of the minor when asked in her cross examination regarding this point, she rejected the above position and added that she had asked her husband to return MGM to America immediately. Besides the facts themselves in this case rebut in the most categorical manner the position of the Respondent. The mother of the minor, as soon as she was informed on 20.4.96 by her husband that MGM had been taken to Cyprus, in an application on 22.4.98 to the Central Authority of the USA (Exhibit 3 of this application) asked for the return of the minor. Also making use of the procedures available to her and exercising her rights she had under the Order of the Court of the USA, Exhibit 1, she succeeded in securing the issue of an Order by the said Court, dated 5.5.96, Exhibit 4. But even following her above mentioned immediate reaction and during this procedure the whole action of the mother of the minor and all her persistent efforts show that not only did she not consent to Marina staying in Cyprus but on the contrary I am convinced that she left no stone unturned in order to secure her return to the USA. In paragraph 10 of his affidavit the Respondent raised a question of validity of the order of the US Court, dated 5.5.96. Exhibit 4, and his advocate in his address raised a question whether the Order dated 2.2.96, Exhibit 1, was in force, supporting the position that this is a temporary Order, and even stressing that neither Mrs. Shakalli nor the mother of the minor testified that the said order is really in force. With all due respect I fail to understand what the question whether the said order, under which the question of custody, physical custody and access to the minor has been settled, is in force or not has got to do with the outcome of this application. It is my finding, as set out earlier also, that on 19.4.96 there was wrongful removal of the minor to Cyprus, stressing also that the prerequisites of Art. 3 are fulfilled, adding that in this case, apart from other data, the physical custody of the minor was given to the mother under the said Order which the Respondent himself invoked at several points of his testimony. Thus, since the finding of the Court is as stated above the return or otherwise of the minor can in no case be dependent on whether the said Order is in force or not. Going further regarding this point I would like to point out that in the present process the execution of any Order is not raised as a sub judice matter nor is the existence of any Order required for deciding whether in a specific case a wrongful removal of a minor has been carried out or not. In paragraph 11 of his affidavit the Respondent claims that the present application is illegal and improper since it was not filed in accordance with the Civil Procedure Rules and/or the Civil Procedure Rules on which it was based under section 5 of the Ratification Law 11 (III)/94 are not mentioned in it. The said position wee further elaborated by the Advocate of the Respondent in his address. The pertinent section 5 of the above Ratification Law provide. that:- "5. Any Judicial process in accordance with the provisions of the Convention starts with the filing of an application by summons supported by an affidavit, in accordance with the provisions of the Civil Procedure Rules, mutatis mutandis." It is clear from the wording of the said section that for the start of any judicial process the filing of an application by summons supported by an affidavit is required. In this case it is not disputed that these two elements exist. I hold the view that the said section set very clearly as a basic prerequisite for the start of the Judicial Process the filing of an application by summons supported by an affidavit for the purpose of determining the Procedural Legal framework for the start of the whole process, which process, as it says further down, will be in accordance with the civil procedure rules, mutatis mutandis. The object and the spirit of the phrase "mutatis mutandis" is very clear. I interpret it as a guiding indication that in cases of wrongful removal of children like the present application the Civil Procedure Rules will be implemented in combination and conjunction with the provisions or the above international convention, mutatis mutandis, for the speediest possible start and continuation of the Judicial Process so that the whole affair may not drag on. I hold the view that in the case we are examining the start of the process with the filing of the application by summons supported by an affidavit fulfill the prerequisites set by the above section 5 as it defines the right framework for the start of the Judicial Process, providing at the same time to the Respondent all the evidence and informing him about all the matters he will have to face before the court. But even if we accept that the Civil Procedure rules also on which it is based should have been included in the above application I hold the view that this omission would be merely formal and would not affect at all the outcome of this application. A different approach to the whole matter would result in the objects and basic principles for which the aforementioned Convention was drawn up not being fulfilled if these applications were rejected on account of formal omissions which do not affect at all either the substance of the application or the Judicial process itself. I referred at the beginning of my judgment also to the significance and primary object of this International Convention but I deem it advisable to cite below an extract from the work Halsbury's Laws of England, Fourth Edition Reissue Volume 8(1) page 578, para 779: "....To some extent, special considerations apply where there has been a kidnapping, that is where a minor has been brought to England in defiance of the order of a foreign court, or against the wishes of one or both parents and with some element of force or deception or secrecy. In these cases the welfare of the child remains the paramount consideration, but in assessing it the court will take into account the kidnapper's conduct and its effect on the child The court may order the child's return to the foreign country to minimize the harmful consequences of a kidnapping and in some cases it will do so by way of a summary order without necessarily examining all the issues in the case: this prevents a kidnapper from gaining an advantage through the passing of time. In dealing with these cases the court will take into account the principles underlying the Hague Convention on the Civil Aspects of International Child Abduction, even where the Convention provisions do not apply as the foreign state concerned is not a party to it."... In his address the advocate for the Respondent raised for the first tine the question of Jurisdiction of this Court, claiming that nowhere in the said Ratification Law is it stated that such Jurisdiction is granted to the Nicosia District Court and submitted that the Family Court has Jurisdiction to deal with this application under Article 11 of the Constitution and Laws 23/90 and 88 (1/94). Article III of the Constitution before its amendment provided for the following: - "Subject to the provisions of this constitution any matter relating to betrothal, marriage, divorce, nullity of marriage, judicial separation or restitution of conjugal rights or to family relations other than legitimation by order of the court or adoption by members of the Greek orthodox church or of a religious group to which the provisions para 3 of article 2 shall apply shall on or after the date of the coming into operation of this constitution, be governed by the law of the Greek orthodox church or of the church of such religious group, as the case may be, and shall be cognizable by a tribunal of such church and no communal chamber shall act inconsistently with the provisions of such law." Following the amendment of the above article through the first amendment of the Constitution Law 95/89 the ecclesiastical courts were deprived of the powers they had and these were granted to Family Courts. However, it emerges from the above that the powers granted to the Family Courts were in relation to betrothal, marriage, divorce, the validity of marriage, the judicial separation or the restitution of conjugal rights or family relations other than legitimation by order of a court or adoption by members of the Greek orthodox church, while in the present application its object and sub judice matter is the wrongful removal of the minor from the USA to Cyprus and whether this Court should order or not her return to the place where she was before the said wrongful removal was carried out. In the present case there is no question of the relations between the spouses or between them and the minor. Nor does a question of custody of or access to her at this stage arise and before it is decided first whether the return to the USA will be ordered or not. Relevant in this connection is Art. 16 of the above Convention, which provides that:- "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 in not lodged within a reasonable time following receipt of the notice." It is clear, in my view, from the above wording also of the said Article that this Court at this stage is called upon to decide on the return or otherwise of the minor and not on the substance of custody rights. Art. 19 of the Convention further reinforces the above views. It Provide. that:- "A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue." The above is in keeping also with the whole spirit of the Convention which focuses on the question of wrongful removal of children and the effective dealing with the harmful consequences such actions involve. Besides, this is why the contracting parties have provided for special procedures such as, for example, the obligation envisaged by Art. 6 under which each contracting state designates a Central Authority to discharge the duties imposed by the Convention. Indeed, the Central Authorities have the Right but also the Duty, as it emerges from the provisions of the Convention, to play the role of litigant in discharging the task entrusted to them. At this point there arises the question whether this application which has been filed by the Minister of Justice as Central Authority could be taken before the Family Court with the said Central Authority as litigant having in mind the above provisions of the Constitution and the Laws invoked by the advocate for the Respondent which, as I said above, give powers to Family Courts to deal with matters which have nothing to do with the present application which concerns the international abduction of children. And how the Family Courts would deal with this matter since no such power to deal with matters that concern the wrongfully removal and retention of children has been given them either by the Constitution or by any other Law. In view of the above I hold the view that this Court has Jurisdiction to deal with and decide on the above sub judice matter of the wrongful removal of the minor from the USA to Cyprus. In summing up what I have said previously an Order is issued ordering the return of minor MGM to Warren county of New York USA. The above-mentioned Central Authority of the Republic of Cyprus shall help in the implementation of the present Order. The Respondent to pay the cost that will be required for the said return A true copy (Sgd) G. Mettouris Registrar D.J.