Meredith v Basdaras (Greece 1996) Court of First Instance of Thessaloniki Nos 13601, 10582, 11908, 12942 4 International Abduction [GRC 1996] =========================================================== No 13601/1996 10582/22 Mar 1996 11908/03 Apr 1996 12942/23 Apr 1996 THE COURT OF FIRST INSTANCE OF THESSALONIKI SAFETY MEASURES PROCEDURE Judge: Hon Vasilios Frangos, President of the Court of First Instance, appointed by the President of the Three-Members Council of the Court of First Instance. Clerk: Was not appointed PUBLIC SESSION: of 26 Apr 1996 THE PETITIONER (1st & 2nd petition) Against him the PETITION (3rd petition): Grigorios Basdaras, son of George, resident of Perea, appearing with his attorneys: Mrs. Georgia Karasavidou-Simopoulou (Reg No. 1027) Mr. Efthymios Kaikopulos (Reg. No. 822) THE PETITION AGAINST (1st and 2nd petitions): LIZBETH ANNE MEREDITH, ex wife of Grigorios Basdaras, residing in Anchorage, Alaska, USA, and presently temporarily residing in Athens, appearing with her attorneys: Mr. Panagiotis Papazissio (Reg. No 876) Michael Papazzicois, practicing in Athens (Reg. No 9138) 001 THEY REQUEST (3rd petition): The Greek State being represented by the Minister of Finance, resident of Athens, acting at present with the capacity of Central Authority (Ministry of Justice) according to the prescriptions of The Convention on the Civil Aspects of International Child Abduction, done at the Hague on 25 Oct 1980 [The Convention] "pursuing civil issues of the International Children's Kidnapping", which was duly confirmed by the Law 2102/1992 (Gov.Gaz.A.193) and as a representative of a U.S.A. citizen, Lizabeth Anne Meredith, of Anchorage, Alaska, USA, temporarily residing in Athens appearing with her representative of the court, Mr. Demetrios Kamaris. PETITION DATE: Filed 0n 20 Mar 1996 and 22 Apr 1996 correspondingly. Filing numbers of Petitions: 10582/22 Mar 1996; 11908/03 Apr 1996 and 13942/23 Apr 1996. MAIN ISSUE OF TRIAL: Status regulation. (Settlement). The discussion took place in public session in open Court. THE COURT HAVING CONSIDERED THE FILE, HAVING THOUGHT ACCORDING TO THE LAW WHEREAS, petitions No. 10582/96, 11908/96 and 13942/96 must be jointly tried due to evident relation between them, and for time and charge saving. I 002 By the combination of the requirements of articles 1510, C.C., 17 1, 592 1, 612, 614 1 and 622 1 C.C.P., as they are in force, it is found that the Greek Courts have the international jurisdiction to judge disputes which come from the parental custody of minor children, provided that one of the parents is a Greek citizen and that when the circumstances are changed, the Greek Courts have international jurisdiction to try the disputes for modification of a decision ordered by any other foreign Court which has settled parental custody and which decision has been declared legally enforceable in Greece. (A.P. 1601/86 No. D 35 1047 EA 7459 ARM.M2 833). 003 Further, according to the article 1536 of the Civil Code, as it is in force after its amendment by Law 1329/83, if, since the issue of the decision relevant to the parental custody, the circumstances have been changed, the Court is obliged upon the request of one or both parents, nearest relatives of the child, or the District Attorney's, to adapt its decision into the new circumstances, revoking or rearranging it according to the children's benefit (EA 2340/86 Cr. Judge. 27 1142). Finally, the article 682 1 Civil Procedure, which orders that "The Courts in urgent cases or in order to avoid any danger, may order safety measures for the security or maintenance of a right or settlement (regulation) of a state (situation)" it is clearly proved that for taking the requested safety measure, it must be very imperative case of necessity of avoiding an imminent danger and to exist the probability of a right. As an urgent situation or case is thought that case which required and exceptional regulation by a court intervention due to the fact of a fast dissolution of the dispute, in order to avoid, in case of a delay, an imperative existing risk, if the hanging danger is immediate. (P. Thessaloniki 802/80 ARCH.L.AB.87, First Inst. of Athens 14888/87 No.H.36.1254 Tzifra Safety measurements in EEN 1969, 1785). In the present case in the petition No. 10582/96, as it was mutually completed, the petitioner Greek citizen is stating that from this marriage with the other party which was performed in Anchorage of Alaska, USA, they have two daughters: Marianthi-Cassandra and Meredith-Eleni, already minor. And that their marriage was dissolved in the year 1991 by a Decree of the Court of Alaska, and that the legal custody of the children was given to both parents. That, after the decision which was issued later, the legal custody (parental custody according to the Greek State) was given to her. That by virtue of No 4842/94 decree of the Court of First Instance of Athens, it was recognized that both the above decrees are in force of a final judgment also in Greece. Further he is stating that at beginning of the year 1994, he came along with his minor children in Greece where settled in. That, these children have been adjusted at this environment as he is stating with details. That his ex-wife (against of who are the two petitions) persisting in the two decrees of the foreign Court, wants to take the children (minor children) in Alaska. He is demanding due to urgent fact and the circumstances changing, to temporarily receive the parental custody. In his second petition, he is stating, more than those mentioned in the first one, that by virtue of No. 10582/96 temporary order of the Hon. Judge of the Court of First Instance of Thessaloniki, which was drawn according to the first petition, it was forbidden to the mother temporarily, to take away the minor children from the house in which they were residing in Perea of Thessaloniki, from the Elementary School, where they are attending, up to the issuance of the decision of the first petition. That, she, despite the above prohibition for which she was duly notified, proceeded to the act of taking away the children who are admitted as guests at the Consulate of the U.S.A. here, with the purpose to drive them abroad. He requests to be permitted to him to communicate even for a little time with his minor children. The petitions with these grounds and prayers, are legal and lawful. They are grounded on the prescriptions of the articles 1510, 1512, 1513, 1536, 1520 1 C.C. as they are in force after their amendment by the Law 1329/83, which are applied here as per the last common citizenship and last common usual residence of father and children (18 Pa. 1 and 2 CC) 731, 735 C.C. Procedure, as the last is in force after its amendment by the above law (1329/83) and the Greek Courts do have international jurisdiction according to the once mentioned in the first part of major thought, since the petitioner is a Creek citizen, and the Court is absolutely competent as per the locality of the execution of the decree (17 & 68 1 and 3 C.C.P.). Consequently those which are opposed by the mother about the insufficiency of international jurisdiction of the Greek Courts and as per the locality of competency of this Court, because she does not have a residence in Greece, must be rejected as our of grounds. After that, the petitions must be examined from the main issue during the present procedure of the safety Measures. II 004 In No 13942/96 petition, the Greek State, legally represented, acting in the present case according to the prescriptions of the International Convention of Hague of 25 Oct 1980. Per the civil issues of the international children's kidnapping, which was duly certified by the Law 2102/92 and has increased typical force according to the article 28 1 of the Greek Constitution, on account of the USA citizen: Lizabeth Ann Meredith, after reporting with details all those are stated in the first petitions about the marriage and divorce of both parties, granting the parental custody exclusively to the mother, and further states that the father on 13 Mar 1994, under the excuse that he wishes to communicate with his children, he took them and brought them in Greece without permission, settling in Thessaloniki, permanently, violating thus the above decisions of the Court of Alaska, and he keeps them illegally. She requests, that the father should give back to her, their children. And this petition is lawful. It is grounded to the prescriptions of the Articles 1, 2, 3 and the articles 3 and 12 of the Law 2102/92, and it is competently entered before this Court, during the present appropriate procedure of safety measures (see article 11 11 2102/92 in combination to 3  2 Int. NKCP and 696 cp.K.C.P.) Therefore it must be examined from the main issue along with the first two petitions. 005 According to the article 12 L.2102/92, in case a child was transferred or kept illegally within the meaning of the article 3, and from the time of his transfer to the time of the petition filing before the Judicial or Administrative authority of the contracting state, where the child is staying, a time period less than one year has passed, the competent (undertaking) authority orders the direct return of the child. 006 Even if the Court authority which undertook the case after the termination of the period of one year, provided in the previous paragraph, is obliged as well to order the return of the child, unless the child has already been adjusted to his new environment. 007 In case the court or administrative authority of the State to which is addressed the petition, has reasons to believe that the child has been transferred to another country, may postpone the procedure or reject the petition of returning the child. According to the prescriptions of Article 13 of same law. 008 Despite the prescriptions of the previous article, the court or administrative authority of the country to which the petition is placed, is no engaged to order the returning of the child since the physical or legal person or organization which is opposing to the returning of the child proves: a) That the physical or legal person or organization which had the care of the child was not exercising substantially the right of custody during the time of transferring or unlawful keeping or it had consented to the transferring or keeping, or it had given its approval afterwards. b) That there exists a very serious danger, the returning of the child to dispose it to a mental or physical hardship or by any other way to derive it to an unbearable condition. 009 The court or administrative authority may also deny to order the returning of the child, if it finds out that the child does not want to return and has already the age and maturity which they dictate to a consider the child's opinion. 010 As for the estimation of circumstances mentioned in this article, the court or administrative authorities should and must consider the records (information) as per the social state of the child which are coming from the central authority or other competent service-agency of the country of th child's usual residence. Besides with the meaning of the prescriptions of the article 1511 C.C., as it already is in force, when the court is called to decide with regard to the granting of the parental custody of a minor child to one of the parents, must have as exclusive guide of its court judgment, the benefit and only the benefit of the child without any other factor which may influence the decision taking from those different ones, beyond the sex, basic factors which accompany the person of each one of the parents, like race, language, religion, social background, financial state, etc. (Law 1968/88 No B 371044 EA 1002/91 Cr.J.34,1624). 011 In the present case, according to the witnesses' testimonies, in open court, witnesses of both parties (to wit: Christos Papaohristos - James Gordon) the documents which are filed, some of them are mentioned below, the personal communication with the minor children, the allegations of both parties which were stated in words and written in their minutes by the attorneys and from all in general the whole procedure, the following have been presented as probable: 012 Both parties have been legally married on 23 Nov 1985 at Anchorage of Alaska, USA, having the bride become Christian Orthodox, before the marriage. From this marriage, they had two daughters, to wit: Marianthi - Cassandra and Meredith - Eleni, who were born there (Anchorage) of 30 Jul 1987 and 18 Apr 1989 accordingly. The marriage of both parties was irrevocably dissolved by No 3AN/90/4991/CIVIL/14 Aug 1991 Decree of the Superior Court of the State of Alaska, USA. With the same decree the legal custody (parental custody according to Greek law) of the above children, was granted to both parents, while the physical custody (custody in Greek law) was given to the minors' mother, at the same time, the time and terms of communication (visiting) of the minors with their father, was duly settled. On 13 Mar 1994 their father, pretending communication with his children, took them away, violating the terms of the settlement, on the basis of which their taking away from Alaska, was forbidden, without mother's consent, and he left for Greece, where they settled in. The mother, after the children had disappeared, proceeded to various actions in order to find them. 013 First, she request that the legal custody be granted to her. On the petition No. 3AN/90/4991 Civil 01 Apr 94 decision of the above Court was issued, by which the first decision was amended and the legal custody was granted exclusively to the mother. She made notification for this missing to the National Center for Missing and Exploited Children, (see attached translation into the Greek of the above association) and she passed to the Central Authority of the Greek State (Ministry of Justice), and at the same time she published to a newspaper of Anchorage, their missing. 014 The father, when he arrived in Greece, for a period of some time which as not proved, he resided in Oreokastron of Thessaloniki. The minor children, now 9 and 7 years old, correspondingly, have both the Greek and the American Citizenship, they speak the Greek language fluently, which they have learned from their father while their stay in Alaska, as well as the English language. 015 They have been registered in the Family Records of Vlasti, Kozani, where their father is coming from. They are two cute little creatures, mature for their age, very intelligent and very polite. 016 The children, during the school year 1994-1995 (September 1994 to Jun 1995) attended, Marianthi the first grade at the public Elementary School of Oreokastron, from where she finished the 1st grade and was promoted to the second grade, while Meredith the kindergarten school (see attached title of progress of the 2nd Public Elementary School of Oreokastron, and "Souvenir" of the Kindergarten of Oreokastron). 017 Presently, they are residing (father and children) in Perea, a costal suburb of Thessaloniki, and during the current school year, the first is attending lessons of the second grade while the second one, is attending the first grade of the Elementary School. They are registered in the First Public Elementary School of Perea, with student's record No 1306 and 1305 correspondingly, with full data of their identity and without change their last name, as groundlessly invokes the mother (see No. 70/ 01 Apr 94 certificate of school record of the above School with the complete identification data of the minors). 018 Their progress was outstanding, and their attitude and relations toward the teachers and classmates, are excellent. They participate with success to the school working groups. They speak always with very good words for their father and they expressed their last wish and desire to remain in Greece near their father, of whom they are especially found and who is taking care with the best manner (see school record and comments by the school teachers from their grades). They are very healthy and sound and they do not show any mental disturb during the period of the last two years (See Medical record by Dr. Ioannig Helivatis, Pediatrician from 19 Feb 1996). The children have been fully adjusted to the environment in which they are living during the last two years, they are extremely happy enthusiastic because they are stay here, they have good friends, and a warm social and family environment, their father takes care of them who loves them extremely with a special affection and love and who takes care of everything in order not to miss even a small thing, with the help of his mother with whom they live together, she is 67 years old, sound and healthy and very full of energy. 019 The Children are expressing themselves with the best words for their father and their grandmother and they do not want to leave them. They love both parents, even though however they have lived with their mother 25 days before the communication with her, they keep a special mental (heart) bond with their father. 020 On 02 Apr 1996 the mother, executing the decisions of the Foreign Court, which were declared enforceable in Greece by No 4842/94 Decree of the Court of First Instance of Athens, she went to Perea in order to remove the children from the father. The father, presented to the Court Bailiff who was appointed to serve this act, in photostatic copy, the first petition and the order written below it No. 10582/96 temporary order, by which the transfer of the children from their residence in Perea, was forbidden, and ordered the continuation of their attendance to the Public Elementary School of Perea, until the issuance of a decision on the petition. The mother, even though was informed about this order (See No. 290/02 Apr 1996 report of children's violent removal by the Court Bailiff, Ioannis M. Mouratidis, Court of First Instance of Thessaloniki), took away the children and brought them to the United States Consulate in Thessaloniki. Later she brought them to Athens, with the purpose to leave with them for Alaska, despite the above mentioned forbidden order. On 03 Apr 1996, at the Airport "ELLINIKON" the mother was impeded to leave with the children aboard, since in the meantime the supplementary forbidding order has been issued, below the second petition of the father. Finally, the children, after deliberations and interventions by third persons, are remaining in Athens under the custody of the mother. 021 Further, the following have been presumed, which are related to the granting of the parental custody, to one of the parents. 022 The father is 43 years old, he is working as a Hotel Business Executive Councellor at "MAKEDONIA PALLACE HOTEL", which is one of the two best in Thessaloniki. His income is very sufficient so that it offers to him and his children a very comfortable living and breeding. 023 The father, during the term of the marriage, used to show a special care and love and affection for their children, educating them with the best manner, teaching them at the same time both English and Greek languages. 024 At Anchorage, Alaska, he was working for about 10 years at the Hotel "Captain Cook". The hotel executive is expressing with the best comments about the father, who was exceptionally punctual and responsible during his duties, very skillful in his job, and they trusted him at their homes without any reservation (see translation Greek Mr. Helen Adwoo's report of 21 Mar 1991). 025 Moreover, according to Mr. Alvin H. Fleetwood's certificate, who is the manager of the Commercial Chamber of Anchorage, the father was completely attached with his family. 026 He was always speaking with tenderness and love for his family, with great pride for his daughters for whom he is feeling a special love and wants what is best for their benefit (see Greek translation dated 22 May 1991 of the above certificate by the affiant). 027 The father accuses the mother of maltreatment of the children. For this reason on 19 Dec 1991 he called in the Children's Clinic of Anchorage, for Meredith's maltreatment by the mother, who had the children the three previous days. There at the hospital, it was found out that the child had bruises at the right part of thigh (leg). It appears, on examination, that it was caused mechanically (belt). The child was very pleased with her father's presence (see attached translation in Greek of 19 Dec 1991 examination on Meredith at the above Children's hospital). 028 The father addressed to the Family and Youth Services of Anchorage, and that Service after a through study, addressed to the mother a document dated 15 Aug 1991 with which suggests to her among others, to turn to the Intervention Service (?) as one temporary relief from her parental duties (see the above document in translation in Greek). 029 The mother is 32 years old. During their marital like, it was not presumed that she was working anywhere. From 16 Nov 1992 she is working to AWAIC, of Anchorage. 030 It was not proved whether she had a family (parents, sisters, brothers, etc.). 031 The mother states that the father was charged in Anchorage for tax evasion and that he filed for bankruptcy, that he did not pay the alimony etc., etc., however none of those has been proved (no document was filed). Also, she says that on the telephone he threatened her if she will be intercepted in her children. (See attached in translation affidavits hers and her friends). But, she does not charge him at all about his treatment toward their children. 032 The father imputes the mother due to neurasthenic crises, for maltreatment of children, thing which did not prove (No document or medical certificate is filed). 033 The witness for the father, having his own knowledge because he was living at Anchorage also, fully aware and clearly, stated about the love, affection and good care which the father offered to his children. 034 The witness for the mother, here attorney there, in the present matter, stated for the father that he had a bad behaviour (treatment) toward the mother, not paying the alimony, etc. 035 From all the above stated, the Court rules considering only the benefit of the children, that they should remain near their father, since they are adjusted completely already to the environment in which they are now living, since two years and that the parental custody must be granted to him. 036 In case the children will be taken by the mother in Alaska (Anchorage), this will have a very unpleasant psychological influence upon them. The new and stranger, after so many years, environment with completely different habits, way of living mentality of social customs and ethics, will have very bad influence in their psychosomatic development considering their special love toward their father. Of course, undoubtedly, both the father and the mother show love and great interest in their children with whom both parents equally, wish, as it was proved, to live together with them. However, from our personal communication with the children, it was clearly proved that they have been fully adjusted to their new environment of the Father, whom they do not show, by all means, to intend to leave him, and the feelings expressed for him and their grandmother, lead us to consider that in case of their moving will create bitterness and psychical wounds, and those feelings must be avoided due to the tender childhood. And it is true also, the father's behaviour, that is to take away the children without mother's consent, is not legal, and is against the America and Greek Criminal law. However, that fact cannot cause reason of excluding the granting of parental custody to him, once the children's welfare, is over all. The Mother, who is represented by the Greek State, with her motions is stating that in this case the prescription of the article 12 1 of the Convention of Hague, is applied, and that, because the petition was filed within one year for the kidnapping, the children must be given, immediately. But this allegation is not legal. With the Convention of Hague, the child is protected internationally, against the harmful consequences of an illegal moving or keeping, (the child). More specifically according to the Article 12, if to Court or Administrative Authority a petition is filed within one year from the illegal keeping, the authority is obliged to give back the children, immediately. However, if it undertakes after the year, it is obliged equally to order the returning of the child, except when it is proved that the child has already been adjusted to the new environment. And this, of course, was decreed for unexplained reasons. Because within a year from the child's keeping, a child has not been adjusted to the new environment, neither has it alienated from the environment which used to live before. While, if a year has passed, there is a possibility, to have been used and been adjusted to the new environment and that is why the exception was made "in case" 2. Thus, in the present matter, 2 of the article 12 is applied, since the Court Authority, took the case after the termination of one year and more specifically after two years, of their illegal moving. On the basis of all the above, and due to the very urgent and necessity for the children to continue their schools (which have been interrupted on 02 Apr 1996 see No 78/ 25 Ap 96 certificate of the Public Elementary School of Perea) must be accepted the prayer of the first petition as per the main issue, the second petition be rejected as without objective and the one of the Greek State as groundless on main issue. Court fees are not charged due to lack of such a request by the winning father. FOR THE REASONS THEREIN STATED The Court Orders that No 10582/96, 11908/96 and 13942/96 petitions have to be jointly tried. It tries the legal arguments of both parties. It rejects No 11908/96 and 13942/96 petitions. It accepts No 10582/96 petition It grants, temporarily, the legal and physical custody of the minor children of both spouses, to wit: Marianthi Cassanra and Meredith Eleni, 8 and 7 years old correspondingly, to the petitioner father Mr. Grigoris Basdaras ADJUDICATED, DECIDED AND PUBLISHED in the public session, during and exceptional assembly in hassaloniki on 20 May 1996 with the presence of Mrs. Nikoleta Karatheologou, Clerk of the Court. THE PRESIDENT THE CLERK A TRUE TRANSCRIPT Thessaloniki, 21 May 1996 THE COURT CLERK ss: nikoleta karatheologou Official seal Stamps and Fees ----------------------- WMH Comment: 037 This case is an application of the exception for return in Art. 12. The facts show that the mother had been awarded custody by a divorce decree in Alaska and the father visitation. On or about 13 Mar 1994 the father removed the children from Alaska and took them to Greece. An action under The Convention was filed by the mother on 22 Mar 1996, just over two (2) years from the removal. 038 While one could argue concealment (and thus tolling of the one year period of Art. 12), this dones not appear to have been viable and indeed, from the text of the case, the mother seems to have known where the children were. 039 The Greek Court finds that the removal was wrongful and that, had the children been in Greece for less than one year, they would have had to been returned to Alaska. 040 The Greek Court, after ruling that the children had been in Greece for over one year than determined, using a best interest type of test, that the children were ". . . now settled in [their] new environment. . ." Art. 12. 041 While perhaps it would have been better if the Greek Court had exercised its discretion and returned the children regardless of the "well settled" finding, the decision is within the reasonable expectactions of The Convention.