Colli v Colli (Italy 1996) Turin Juvenile Court, 28 Dec 1996 ================================================================== TURIN JUVENILE COURT The Court, in Chambers in person of the following Judges: Dr. Camillo Losana, President Dr. Daniela Bacchetta, Judge Dr. Maria Pai Cornaglia, Honourary Judge Dr. Roberto Maurizio, Honourary Judge. Having read the request of enforcement, filed by Mrs. Margareth Catherine Colli and supported by the Public Prosecutor, of the order dated 24 Jun 1996 issued by Judge Tynas of the English High Court, relating to the minors Jessica and Sean Colli, born in Novara on 3 December 1991 and 24 Jul 1990 respectively, of said Francesca Margareth and Paolo Colli hereby notes The investigating Judge, as requested by the applicable law, convoked the father of the minors, Mr.. Paolo Colli, who declared: -- to be aware that the order dated Jun 24, 1996 giving him summer visitation rights over the minors, also provided that said minor were to be returned to the mother on August 30, 1996, as the mother has full custody over said children pursuant to an order of the English Court dated November 30, 1995, such order having been enforced by the Turin Juvenile Court pursuant to the Bruxelles Convention. -- to have no intention to comply with such order as the children were living in poor conditions with their mother, who uses drugs and cohabits with a man condemned for commerce of drugs. -- to have tried to comply with such English order and to have been stopped by the children who appear traumatized by the sole idea of returning to England. -- to have requested to the English Judge that the custody order be reversed in his favor. Considering the above serious statements, the Italian Judge waited to be informed of any further decisions of the English Judge. The mother's lawyer filed with the Court a copy of a decision of the English Court dated October 23, 1996 which rejected the father's request for reversal of custody. Thus the Court believes that the mother must file an original copy of the English Order dated October 23, 1996 proving whether such order is definitive. In case such order can be appealed or modified, there would be no point in letting the children return to England and then return to Italy again. The also believes that the matter should be more thoroughly examined to ascertain how it is that such children were born in Italy, lived in Italy and were then moved to England, to be subsequently returned to Italy. In addition, the Social Services of Novara report that the minors are living in very good conditions with the father and his family. In order to better understand the relationship of the children with the father and the mother it is necessary to run an appraisal. The above is not aimed to re-discuss the merits of the case. This decision is only aimed to verify whether the English Court issued any decision which revokes the custody in favor of the mother. Based on the above The Court suspends the decision regarding the enforcement of the English Order dated June 24, 1996 regarding the minors Jessica and Sean Colli. The mother of the minors is invited to file with the Court, through her lawyer, the original of the English Order dated October 23, 1996 regarding the minors, indicating whether such order is definitive. The mother is also invited to apply for the enforcement of such order in she deems it appropriate. The Court orders that in any event a psychological appraisal be run on the minors to ascertain the nature of their relationship with the father and the Mother. Turin, 28 December 1996. ================================================================= COMMENTS BY Wm. M. Hilton, 31 Jan 1997 In her cover letter transmitting this decision to Hilton House Web Site, Attorney Roberta Ceschini stated the following: "I have filed an appeal to such order on the basis that, according to the Hague Convention, the Juvenile Court of Turin is not entitled to 'suspend' the decision and run an appraisal, i.e., enter into the merits of the case. According to the Italian law which ratified the Hague Convention, the Juvenile Court withn 30 days from request is only entitled to either order the return or deny the request." With all due respect to the Italian Court, this decision does run contra to the express purpose of The Convention, which is to return a child to his or her "Habitual Residence" (Clearly the UK here) and let the Courts of the "Habitual Residence" hear evidence on the merits of the claim. If the Italian Court feels that the safety of the child would be jeopardized in the interim, the Court could request that undertakings be made by the mother to provide this protection. See, e.g., In re M (Minors) (Child abduction: Undertakings) Court of Appeal [The London Times - Law Report - 15 Aug 1994] (Available on Hilton House Web Site as In_re_m_uk.txt) and REPORT ON HAGUE CONVENTION OPERATIONS by the Child Abduction Unit - November, 1995, by The Lord Chancellor's Child Abduction Unit, Central Authority for England & Wales (Available on Hilton House Web Site as Undertaking_rpt.txt). See also Friedrich v Friedrich (6th Cir. 1996) 78 F.3d 1060, which opines that Art. 13(b) type of arguments only apply if the requesting country is in a state of anarchy (Bosnia, for example) or their courts cannot or willnot protect the child. (Available on Hilton House Web Site as Friedrich_3_fed.txt). One should also review the brief on Equal Dignity of courts which argues that, under The Convention, the Courts of one fourm are as capable of the courts of another forum when a decision as to the best interests of the child is to be made. (Available on Hilton House Web Site as Equal_dignity_mem.txt).