Canetti vs Thorpe (Italy 1999) Milan Juvenile Court No 74/99 27 International Abduction (Italy 1999) =========================================================== [TRANSLATION] MILAN JUVENILE COURT VIA LEOPARDI 18 - 00123 MILAN Proceedings no. 74/99 001 The Milan Juvenile Court, in Chambers, in person of the following Judges: Dr. Mario Zevola President Dr. Ely Marino Judge Dr. Paola Bellotti Honorary Judge Dr. Umberto Mazza Honorary Judge issues the following DECREE regarding the application of Mirko Canetti, represented by Roberta Ceschini of the Rome Court and domiciled at the office of Michele Parise in Milan, Via C. Botta 4. Mr. Canetti is the father of the minor SUSHEELA CANETTI, born in London on 15.03.1989 002 Mr. Canetti asked that the Court issue an article 15 declaration pursuant to the Hague Convention of 25 Oct 1980, providing to the London High Court, Family Division, explanations as to the custody rights of minor children of unmarried and non cohabiting parents, pursuant to art. 317 bis of the civil code. 003 The Court read the defensive brief filed by Mrs. Antonella Maria Robustelli Thorpe, mother of the minor, represented by Giulia Zambolo and domiciled at her offices in Milan, Via Bianca Maria 11. 004 The Court also interrogated both parties and found that: 005 1. In September 1998 Mirko Canetti applied to the London High Court pursuant to the Hague Convention of 25 Oct 1980 asking a return order concerning his natural daughter Susheela Canetti, which he affirmed to be wrongfully retained by the mother in violation of his custody rights. 006 2. The High Court, in order to facilitate the decision regarding the Italian custody rights, issued an order dated 24 Dec 1998 asking that the Italian Court, in the presence of both parties, provided an article 15 declaration pursuant to the Hague Convention attesting whether the minor is being wrongfully retained out of the Italian jurisdiction. 007 3. It has been ascertained that the parents do not cohabit since July 1997, when the mother moved to London with both children (the parties have another daughter, Aliai, born in Milan on 09 Mar 1996), although Mr. Canetti affirms that Mrs. Thorpe was supposed to go to London for an holiday and that only in September she informed him that she intended to definitively stay in London. 008 4. It has been ascertained that Susheela returned to Italy only for the purposes of attending her usual school. 009 5. During the school period Susheela cohabited with the father in the house belonging to the mother in Milan, Piazzale Lagosta 10. The mother affirms that she allowed Mr. Canetti to stay in the house, due to the fact that he did not have a proper house to live with the daughter. In fact, Mr. Canetti is currently resident in Milan, Via San Gregorio 30 together with his parents with whom he manages an hotel having the same address. Mrs. Thorpe left Susheela with the father with the sole purposes to let her attend the Milan Steiner school, since she could not find a place in the London Steiner school, Rudolf Steiner Kings Langley. 010 6. However the mother visited Susheela for long periods, coming to Milan together with the other daughter on the following dates: from 20 Sep 1997 to 15 Oct 1997, from 16 Dec 1997 to 07 Jan 1998; from 13 Mar 1998 to 02 Apr 1998 (the child stayed in London with the mother until 20 Apr 1998), and from 30 May 1998 to 15 Jun 1998. 011 7. From 15 Jun 1998 to 10 Jul 1998 the child stayed in London with the mother and was on holiday with the father and her sister from 10 Jul 1998 to 15 Aug 1998 then returning to London with the mother. 012 8. Since 15 Aug 1998 the minor is in London with the mother where she is attending the school Rudolf Steiner Kings Langley. 013 9. There is no Court decision or agreement according to which it can be deemed that the minor was given to the custody of one or another parent. 014 10. It has been ascertained that, when the cohabitation between the parents finished the father accepted that at least Aliai lived with the mother. In addition, it is clear that the fact that Susheela stayed in Italy, in the mother's home, was only due to the attendance of the Milan school, as there was no reason to keep Susheela separated from her sister. The mother made several visits to Susheela, staying in the house for long periods. 015 Art. 317 bis cannot be applied to the present matter, notwithstanding Mirko Canetti sustains to have custody of Susheela pursuant to such article. In fact the minor was non exclusively cohabiting with the father, but was living with him in the mother's home and the mother was present in the house for five months and a half out of nine. 016 Pursuant to the above the Court states that Susheela is not being wrongfully retained in London pursuant to art. 3 of the Hague Convention of 25 Oct 1980. 017 BASED ON THE ABOVE the Court declares that the minor Susheela Canetti has not been wrongfully retained out of the Italian jurisdiction pursuant to art. 3 of the Hague Convention of 25 Oct 1980. To be served to the parents at the elected domicile and the public Prosecutor Milan March 24, 1999 Signed Filed in March 31, 1999