Canetti vs Thorpe (Italy 1999) Milan Court of Appeals 28 International Abduction (Italy 1999) =========================================================== MILAN COURT OF APPEALS SECTION FOR MINORS In Chambers with the following Judges: Dott. Camillo Passerini President Dott. Carlo Maria Garbellotto Judge Dott. Alberto Pezzani Judge Dott. Carla Gaddi Honorary Judge Dott. Franco Martelli Honorary Judge regarding the appeal of the decree of the Milan Juvenile Court dated [date missing] Filed by MIRKO CANETTI represented by Attorney Roberta Ceschini against ANTONELLA ROBUSTELLI represented by attorney Giulia Zambolo issued the following DECREE WHEREAS 001 1) Mirko Canetti is the father of the minor Susheela Canetti, born on March 15, 1989. Mirko Canetti cohabited, without being married, for ten years, with Antonella Thorpe. On January 9, 1999 Mr. Canetti filed a petition with the Milan Juvenile Court seeking issuance of a decree ascertaining that the mother was illegally retaining said minor in London following the August 1998 holidays. 002 2) Such a decree was to be issued pursuant to article 15 of the Hague Convention of 25.10.1980, ratified in Italy with Law 64/94, and had been requested by the London High Court of Justice where Mr. Canetti started a proceedings for the return of Susheela Canetti to Italy. 003 3) On March 24, 1999 the Milan Juvenile Court, after having interrogated the parties, issued a decree stating that the mother was not illegally retaining the minor. 004 4) On May 7, 1999 Mr. Canetti filed an appeal before the Milan Court of Appeals on the following grounds: a) wrongful interpretation of the fact; b) lack of reasoning of the appealed decree; c) wrongful interpretation of article 317 bis of the civil code. 005 5) Mrs. Thorpe filed a defensive brief on July 15, 1999. 006 6) At the hearing of July 22, 1999 the parties have been interrogated by the Court. 007 7) The Public Prosecutor's opinion was that the appeal was to be rejected. REASONING 008 The London High Court of Justice suspended the Hague proceedings and requested that the Italian Court issued "a final and reasoned declaration as to the rights of custody of an unmarried father". 009 Mr. Canetti took immediate action before the Milan Juvenile Court in order to obtain an Article 15 declaration pursuant to the Hague Convention. In his petition Mr. Canetti mentioned art. 317 bis stating that he had sole custody of his daughter Susheela and that Mrs. Thorpe was violating such custody right pursuant to art. 3 of the Hague Convention. The same argument has been reiterated in the appeal. The Court has a different opinion. 010 Article 317 bis is a non-mandatory provision as the parental authority on children of unmarried parents is provided by art. 261 and 316 of the civil code. The provision of art. 317 bis, in order to establish who has parental authority on children of unmarried parents, focalize on the factor of cohabitation with both or one of the parents. However art. 317 bis does not automatically gives parental authority to parents. In fact, second paragraph of article 317 bis provides that the Judge can also exclude parents from parental authority even if cohabiting with the minor. 011 There is no doubt that art. 317 bis generally acknowledges the judicial value of a family with unmarried parents. However the sole and main purpose of art. 317 bis is that of protecting the minor's interest, which is prevailing on the interest of the family to which the minor belongs. Thus, art. 317 bis interpretation must be conditioned upon the interest of the minor, which is to say that the Court in case of conflict between unmarried parents, can differently provide with respect to parental authority. 012 In the present case the Juvenile Court was right in stating that it is positive for Susheela to have joined her sister Aliai, resident in London with the mother, also considering that Susheela has frequently visited the father in Italy. 013 When Susheela was allegedly retained in London (August 1998) the father did not have any exclusive parental authority on Susheela, either by law or by judicial decision. Any conflict on the point between the parents should have been settled before the competent Juvenile Court. 014 In conclusion, since Mrs. Thorpe has not violated art. 3 of the Hague Convention, the appeal is to be rejected. 015 The analyses of the fact leads us to the same conclusions. 016 The chronological events show that Mr. Canetti had agreed that the mother and the children moved to London in June 1997. Otherwise one cannot explain why he did not take any judicial initiative. When Susheela returned to Italy in September 1997 it was for the sole purpose of attending the Steiner school in Milan. Susheela lived in Milan until the end of the school year (15 June 1998) in the apartment of Piazzale Lagosta 10 with the father (officially resident at Via San Gregorio no. 30) and was frequently visited by the mother (owner of the apartment) and by the sister Aliai. The Court believes that Susheela never ceased cohabiting with her mother, intending the term "cohabitation" in the wide meaning of "living with" and not mere physical cohabitation, and that Mr. Canetti accepted it. Mr. Canetti was not entitled to any exclusive cohabitation for the period September 97 - September 98 pursuant to art. 317 bis and therefore was not entitled to exclusive parental authority. In addition, Mr. Canetti himself confirmed that Susheela returned to Italy for the sole purpose of attending the Steiner school in Milan (school year 1997-98) when interrogated by the Juvenile Court on March 23: "I went to London to take the child in September 1997 to allow her to attend the school she attended during the preceding years". 017 For the above reasons the Court, also based on the opinion of the Public Prosecutor, hereby rejects the appeal filed by Mr. Mirko Canetti against the decree of the Milan Juvenile Court dated March 24, 1999. Each part will pay for its legal costs. Milan, in Chambers on July 22, 1999 The Judge Alberto Pezzoni The President Camillo Passerini [stamp of the Milan Court of Appeals] deposited on July 29, 1999