Monday, July 07, 2014
The Hague Abduction Convention in Cyprus
The following are excerpts, without footnotes, of an articles published in the Judges’ Newsletter on International Child Protection Vol. XX, Summer – Autumn 2013.
The full article is available on the website of the Hague Conference on Private International Law.
Concentration of Jurisdiction under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: Cyprus
By The Honourable Justice George A. SERGHIDES, President of the Family Court of Nicosia-Kyrenia
Cyprus became a member of the European Union on the 1st May 2004. It ratiﬁed the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter the 1980 Child Abduction Convention) by Law 11(III)/1994 and the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and
Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (hereinafter the 1996 Child Protection Convention) by Law 24(III)/2004.
Concentration of jurisdiction in children matters is a very important matter for Cyprus, since Cyprus is perhaps one of the very few countries in Europe which had ratiﬁed the 1996 Child
Protection Convention, where there had ﬂourished and are still, to a lesser degree, operating interpersonal conﬂict of laws rules regarding jurisdiction and applicable law in regard to family disputes. The plurality of diﬀerent courts and systems of laws in a country is a phenomenon diﬀerent from the concentration of jurisdiction. It is a kind of fragmentation. That was the situation in Cyprus in the past, where they had been operating religious courts, communal courts and secular courts. Despite its long history of internal conﬂict of laws, Cyprus has managed eventually to achieve concentration of jurisdiction as to children cases.
Concentration of jurisdiction in Cyprus before and after the ratiﬁcation of the 1980 Hague Child Abduction Convention
In Cyprus, not only after but also before the ratiﬁcation of the 1980 Child Abduction Convention in 1994, there was concentration of jurisdiction in children matters. In 1989, a reform was eﬀected in Cyprus family law. In 1983, a lawmaking Committee for the modernization of theCyprus family law had been appointed by the then Minister of Justice, presided by a member of the Supreme Court. After completing its task, in January 1987, the Committee presented to the Council of Ministers a report with suggestions for reforming the family system of law in Cyprus. What followed since 1989, was the amendment of the relevant article of the Constitution (art. 111), the abolition of the ecclesiastical courts and the establishment of the Family Court and later on the Family Courts of three religious groups, the Maronite, the Latin and the Armenian. The substantial family law was completely reformed and is still receiving amendments, based
on modern principles and criteria, being a child-centred law.
A specialized Family Court has been established since the 1st of June 1990. However, over the years and due to the rapid increase of the number of the family cases, the number of the Family Courts has increased. To-day, there are operating three Family Courts in Cyprus: the Family Court of Nicosia- Kyrenia, the Family Court of Limassol-Paphos and the Family Court of Larnaca-Famagusta, each of them having local and international jurisdiction, including child abduction cases.
Unlike divorce cases, where a Family Court is composed of three Judges presided by the President, a single Family Judge (not excluding the President of the Court) may hear any of the other family disputes, including the abduction of children cases. Until 1998, the Family Courts had jurisdiction only in regard to family matters of Cypriot citizens who were members of the Greek Community and also members of the Greek Orthodox Church. Until that year, apart from the Family Courts, there had been operating in Cyprus the Family Court of the Maronite religious group, the Family Court of the Roman Catholic (Latin) religious group and the Family Court of the Armenian religious group.
However, in 1998, the jurisdiction of the Family Courts of the religious groups was confined by virtue of Law 26(I)/1998 and Law 22(I)/1998 only to petitions of divorce and for the use of the matrimonial home. All the rest of their family jurisdiction including children cases, and of course abduction cases, was transferred to the Family Courts. Also, by Law 26(I)/1998, the family jurisdiction of the District Courts over mixed marriages (i.e., parties of different religions or different nationalities) was transferred to the Family Courts. This Law, promoted the concentration of jurisdiction in children’s cases. The case law, also, played an important role in the development of concentration, as the relevant sections of the amendment Law were interpreted so as to leave no doubt as to the transfer of the jurisdiction of the Family Courts of the religious groups as well as of the District Courts to the Family Courts. (Vide, Christodoulidou v. Toumaian, (2007) 1(B) CLR 1024, a judgment of the plenary of the Supreme Court (in Greek), Damtsa v. Damtsas, (2006) 1 CLR 1389, a judgment of the Family Court of second instance (in Greek), and Toumaian v. Christodoulidou, (2009) 1(B) CLR 881, a judgment of the Family Court of second instance (in Greek)).
Especially due to the above law reform, as rightly put it by the Family Court of second instance in Niazi Siougrou v. Ulrich, App. No. 27/09, 10/3/11 (not reported in CLR - in Greek), following the views on the matter of Law Professor, Nikitas Hadjimichael (see Lysias, “Comments on Christodoulidou v. Toumaian” (in Greek), Jul.-Dec., 2008, year 1st, issue no. 1st (new series), p. 43 et seq., 47), the Family Courts in Cyprus are “Courts” and not “Tribunals”. The Family Courts were further described in Niazi Siougrou by the Family Court of second instance, as “superior (or general) courts of limited (or specific) jurisdiction”, as opposed to the District Courts, which are “general courts of general jurisdiction”. In Toumaian, the Supreme Court confirmed that the Cyprus Family Courts were transformed eventually from “Greek Communal Courts” to “general courts of specific jurisdiction” (see also Hadjimichael, op. cit. p. 47 and Niazi Siougrou, op. cit.).
The only children cases which ratione personae fall under the jurisdiction of the Presidents of the Districts Courts which superseded temporarily, by the Law of Necessity, the Turkish Communal Courts, are the cases where both parties are members of the Turkish Community and citizens of the Republic (Law 120(I)/2003). However, so far, there have been no cases where there was an alleged abduction of a child born by parents belonging to the Turkish Community with ordinary residence in the south part of Cyprus (i.e., the non-occupied by the Turkish military forces part). Under article 7(a) of the Cyprus Constitution, “a married woman shall belong to the Community to which her husband belongs”. So, a Turkish woman who marries a Greek man and either of them abducts their child, falls within the jurisdiction of the Family Courts.
The number of all the Family Court Judges, including the three Presidents, is ten, a number relatively small, comparing it with the much bigger number of District Court Judges which currently is seventy. The Family Judges are specialized Judges and they are handling only family cases and not any other civil cases, or any criminal cases, except quasi criminal cases, concerning contempt of court orders, issued on various family disputes. The abduction of children, as a criminal offence, is within the jurisdiction of the District Courts and not the Family Courts. By the new section 245A of the Cyprus Criminal Code, Cap. 154, as amended by Law 70(I)/2008, the abduction of a child by one of its parents outside the Republic of Cyprus, is considered an offence. An appeal from a Family Court of first instance is to the Family Court of second instance, which is composed of three Judges of the Supreme Court, sitting in this jurisdiction by rotation, every two years.
The Judges of the Supreme Court are appointed by the President of the Republic of Cyprus almost invariably in practice, following the recommendation of the Supreme Court, on seniority, from the body of the District Courts Judges, and never from the body of the Family Court Judges, who are the only Judges specialized on family law. Law 33/1964 does not place any restrictions for the appointment of the Supreme Court Judges other than the requirement of practice for twelve years as a lawyer or as a judge and being of a high standard. Since the Law does not distinguish between generalist and specialist judges and between generalist and specialist advocates, there is no reason for Judges of the Supreme Court to be appointed only from the body of the District Court Judges and not also from the body of Family Court Judges, so as to enable specialist Judges to sit eventually in the Family Court of the second instance. This approach is in line with article 53 of the Opinion (2012) No. 15 of the Consultative Council of European Judges on the Specialisation of Judges, which provides that: “The guiding principle should be to treat specialist judges with respect to their status in no way differently from generalist judges. Laws and rules governing appointment, tenure, promotion, irremovability and discipline should therefore be the same for the specialist as for the generalist judges”. If a country, in this instance Cyprus, considers it important to have specialized family courts, the whole logic of specialisation and consistency of case law on a specialised field of law would be defeated, if expertise would not cover all judicial tiers.
The Cyprus Central Authority dealing with abduction cases is the Ministry of Justice and Public Order, which is represented by a specialised senior counsel of the Attorney General’s Office. Cyprus, participates in the judicial network established under the 1980 Child Abduction Convention, by having since the 19th of May 2000 an International Hague Network Judge with the duty, inter alia, of exchanging information on domestic law with Liaison Judges of other countries.
Domestic procedure to expedite Hague child abduction applications’ hearings
Since 2002, there has been in Cyprus an expeditious procedure regarding child abduction applications. This procedure which is applicable by the Family Courts has been enacted to meet the needs of the immediate return of a child under the 1980 Child Abduction Convention. It is regulated by Regulation 7A of the Family Courts Procedural Regulation of 1990 (PR 2/1990), which was effected by an addition made to the basic Procedural Regulation 2/1990 on the 2nd of May 2002 by the Procedural (Amendment) Regulation 23/2002. Regulation 7A was made after my suggestion as a Liaison Judge of Cyprus in Child Abduction Cases to the Supreme Court.
According to para. (2) of the said Regulation 7A, the time for filing an objection to the application is seven days from the day of service. According to para. (4) of the Regulation 7A, the hearing of the application is limited to the facts mentioned in affidavits supporting the pleadings, including supplementary affidavits if allowed by the Court for good reason (para. 3). Though they can offer no oral evidence, the parties have the right to cross-examine the deponents of the other side (para. (4)). Paragraph (5) foresees the possibility of an appeal which must be filed within 14 days from the day of the pronouncement of the decision. Before Regulation 7A, the procedure followed for child abduction cases was similar to any other civil case, thus permitting oral evidence and with extended periods of filing defence (15 days) and an appeal (42 days).
The benefits resulting from concentration of jurisdiction
In my experience, as a Judge and President of the Family Court in Cyprus for the last 23 years (since the establishment of the Family Court) and as a Liaison Judge for Cyprus for the last 13 years, concentration of jurisdiction, especially for Hague Convention child abduction cases, has significant benefits. First of all, concentration of jurisdiction furthers certainty and is a shield against confusion. Certainty as to which is the competent court and which is the law applicable, internally, is of the utmost importance in dealing with family and especially children cases. Concentration enables the Court to consider child abduction cases urgent or as an emergency, something which is needed by their nature for the protection of children.
It enables specialisation and expertise to be built through experience. Handling more cases leads to more expertise, and more expertise leads to a more speedy trial as well as a more child-friendly justice. Furthermore, experience and expertise lead to a better understanding of the human nature and the needs and interests of the children. Lastly, concentration of jurisdiction and expertise provide consistency in the case law and give people greater confidence in trusting justice and its institutions.