Summary
The parties to the dispute were an English mother and a Greek father. The parents married in England in 1995; they had three children (two of them were within the scope of these proceedings).
In 2003, the father relocated his professional life to Greece. Mother and children moved to County Durham. It was intended for the family to re-unite. The reunion did not work as smoothly as planned, so that mother and children returned back to England.
The father made an application under the Hague Convention for the return of two of the three children.
The proceedings were initiated in February 2007.
On 3rd April 2007, the father’s application was dismissed by Kirkwood J. The High Court judge exercised his discretion to refuse the return of the children “because of the likelihood of psychological harm.” (Quoted by Lord Justice Thorpe [19] of the Court of Appeal judgment.)
The High Court’s judgment was affirmed by the Court of Appeal. In this context, Lord Justice Thorpe made the following observations:
“24 Before I leave the case, I would just like to add the development reported by Mr Scott this morning, namely the issue on 20 April of proceedings before the Court of First Instance of Athens of a petition for emergency measures in relation to the custody of the two children by the father. On the face of the document as translated he seeks, in the first instance, what we would call a residence order in respect of the two children. In the alternative, he seeks an order for their return to be cared for by their mother in independent accommodation. Within the pleading are some pretty extreme assertions that may be simply characteristic of the style of pleadings in the Athens courts. But its relevance rests in the provisions of Article 11(7) and (8) of the Regulations, the effect of which is to empower the court of habitual residence to make a return order notwithstanding the failure of the application before the court of the other Member State. If the court of habitual residence does make such a return order then that is enforceable by the automatic procedures provided in Section 4 of Chapter 3 of the Regulation.
25 I can only express the hope that the judge in the Court of First Instance of Athens, before arriving at any discretionary conclusion as to the welfare of these children, will pay due regard to the written report and the oral evidence of Mrs Demery, and the assessment of that evidence by a judge with the enormous experience and the high specialist expertise of Kirkwood J.” [24-25].