Rochford and Rochford (Italy 1999) Juvenile Court of Rome N. 2450/98 E 1 International Abduction [Italy 1999] =========================================================== Nr. 2450/98 E JUVENILE COURT OF ROME (decree pursuant to art. 7 Law 15.1.94 n. 64 international child abduction) The Juvenile Court in Rome, in Chambers, with the following Judges: Luigi Fadiga Pesident Alessandro Sorge Judge Vittoria D'Agostino Honorary Judge Giovanni Costanzo Honorary Judge issued the following DECREE In the proceeding taken by the: Public Prosecutor of the Juvenile Court in Rome Petition of: Ministry of Justice, as Central Authority for the Hague Convention of 25th of October 1980 on the civil aspects of the international child abduction, ratified on 15.1.1994 with law n. 64, Subject-matter: Declaration of unlawful transfer of the minor Luca Gerald ROCHFORD, son of Nicholas ROCHFORD and of Pasqualina DI VITO ROCHFORD, born in London on 5.8.93. 001 The Court, at the end of the today's hearing in chambers, fixed pursuant to art. 7 of the law 15.1.94 n. 64, where the following persons have been heard: 002 - the minor's mother Mrs Pasqualina Di Vito Rochford with her lawyer, Mr Francesco Mastroianni, of the Court of Rome, who asked for the dismissal of the petition; 003 - the minor's father Mr Nicholas Rochford with his lawyer Mrs Roberta Ceschini, of the Court of Rome, who asked that the transfer be declared unlawful and that an order of immediate return be issued. 004 - the Public Prosecutor, Mr Roberto Polella, asked that the petition be deemed grounded, Observes in fact and law 005 On 19.10.98 the Public Prosecutor, at instance of the Central Authority at the Ministry of Justice, filed a petition in favor of the minor Luca Rochford for the enforcement of the Hague Convention of 25.10.80. The child was born in London on 5 of August 1993, and is the son of the British citizen Nicholas Rochford and of his wife Pasqualina Di Vito (also called Lita Di Vito) Italian-British citizen. They married on May 1991 in England, where Mrs Di Vito had been living for many years and where they have always lived. Currently they are separated: Nicholas Rochford lives in England and Mrs Di Vito lives in Italy. According to what Mr Rochford said to the Central Authority, on 23 of May 1998, during a visit to her son, Mrs Di Vito unlawfully abducted him to Italy where the child currently is. 006 Previously, Mrs. Di Vito, on 3rd of June 1998 filed a complaint asking this Court appropriate remedies to protect the child, complaining about Mr. Rochford's behavior, which was, according to her, very deleterious for her child. She took the latter to Italy with her husband's consent in September 1997. Di Vito's complaint gave rise to the proceeding 1319/98 E, which was adjourned to today's hearing for a possible consolidation of actions. 007 Pursuant to art. 7 of the law 1994 n. 64 the mother was summoned at today's hearing. The father also appeared and asked to be interrogated. The Court has ordered the consolidation of actions between this proceeding and the above mentioned proceeding Nr. 1319/98. 008 The spouses have been previously invited by the President to try a settlement, however with no success. When they have been interrogated, they have persisted in telling respectively their versions of the facts. Mrs Di Vito has declared that she permanently left to Italy with the child and with Mr Rochford's consent on September 1997, and she accused him of having taken her son away on January 1998, when he retained him in England at the end of Christmas holidays. On the contrary, Mr Rochford has denied having agreed to a definitive transfer of his son to Italy and said that they had only agreed for a temporary transfer to Italy. 009 The Court observes that this case must be decided according to the Hague Convention of 25.10.80, implemented in our legal system pursuant to the above mentioned law 15.1.94 n. 64. This means that the Judicial Authority of the requested Country must order the child's return, once it is established that his removal infringed the custody rights allowed by the law of the Country where he usually resided (art. 3 of the Convention). 010 The fact that the child usually resides in England can be proved by the fact that the child, born in that country, has always lived there with his parents until September 1997. It is true that afterwards he has lived in Italy from September until December of the same year, however such a three months period is too short for establishing a new habitual residence. Then, it is irrelevant the fact - indicated but not substantiated by the defender - that the child and his mother would be resident in SS. Cosma e Damiano, in the province of Latina. In fact, according to the Convention, the expression habitual residence does not indicate the registered residence, but the place where the child usually spends most of his time. This place, center of the child's life, is without any doubt, England, where Luca was born and has grown up. In fact, when he arrived in Italy, he did not speak Italian, as indicated in Mrs Minuzzo's psychological report, filed by Mrs Di Vito's lawyer. 010 The merits of the case cannot be examined at this hearing. The return order can only be denied in one of the following cases, pursuant to art. 13 of the Convention: - if the person from whom the child has been taken away did not have the effective parental authority when the removal took place; 011 - if, because of the return, the child runs the risk of having physical or psychological problems or finds himself in an intolerable situation; 012 - if the child does not want to come back and he is old enough to provide for his opinion 013 None of these three cases corresponds to the present cased. In fact Luca Rochford is just five years old, and he is still too young to assess a situation with impartiality or to make choices. 014 With respect to point b) of the same article. Mrs Di Vito has given no evidence of Nicholas Rochford's bad behavior, and there is no reason to fear that Luca's return to his father shall create an intolerable situation for the child. It is not possible to accept the request of Mrs DiVito's lawyer for a psychological report. It is up to the part to prove that the return is intolerable and the inevitable pain consequent to the parents' separation cannot be used as an means to infringe the Convention. 015 Moreover, this is neither the case of refusal indicated in letter a) of art.13. There is no doubt that Rochford and Di Vito are married, and, since the English Family Law (like the Italian one) provides that both parents have the parental authority and they exercise it jointly, on 23 of may 1998 Rochford effectively exercised the parental authority. Moreover, the documents he has filed show that since 28th of January 1998 the English Court had forbidden the removal of the child from England, an injunction pronounced on 19 March and 20 April and served to Mrs Di Vito on 25.4.98. Mrs Di Vito 's statements about the fact that she did not understand the meaning of that measure are unacceptable. Hence, the petition that Mrs Di Vito filed to this Court on 3.6.98, few days after she had come back to Italy with her child, have an instrumental nature. In fact, at that time the English Court had already passed three measures, which forbade Mrs Di Vito to take her child out of England. 016 Mrs DiVito's lawyer has declared - but not substantiated - that a proceeding for separation of spouses is pending before the Court of Latina and he has asked for an adjournment of the hearing, while waiting for that judge's decision. The request cannot be accepted, because, according to art. 16 of the Convention, the present proceedings takes precedence. 017 Hence it is necessary to declare Luca Rochford's removal unlawful, and order his return to his usual residence in England, rejecting Mrs. Di Vito's petition of 3.6.98. FOR THE REASONS ABOVE MENTIONED 018 The Juvenile Court of Rome, rejected every contrary petition, in acceptance of the Public prosecutor 's petition, pursuant to art. 7 of the law 15.1.94 n. 64 and artt. 3 and following of the Hague Convention of 25.10.80 on the civil effects of the international child abduction, states that Luca Rochford's removal to Italy was unlawful and as a consequence the Court orders the child 's return to his habitual residence in England, to his father; 019 This decree is immediately enforceable. 020 The present decree be communicated to the parties and to the Central Authority for the Hague Convention of 25.10.80 in the Central Office for Juvenile Justice the Ministry of Justice in Rome. As decided in Rome, 7th January 1999 The President Deposited on January 13, 1999