Case Title: CA (CPA) Application No: 162/2022
Court: Court of Appeal of the Democratic Socialist Republic of Sri Lanka
High Court Case No: HC/SPL/20/2018
Date of Decision: 03.03.2025
Presiding Judges: S. U. B. Karalliyadde, J., Mayadunne Corea, J.

Introduction

This judicial review provides an in-depth analysis of the revision application filed against the order dated 08.12.2022 of the Provincial High Court of Western Province, Colombo, regarding the wrongful removal and retention of two minor children under the Civil Aspects of International Child Abduction Act No. 10 of 2001 (hereinafter “the Act”) and the Hague Convention on the Civil Aspects of International Child Abduction of 1980.

Background of the Case

The Petitioner and the 1st Respondent, married in 2009 and migrated to Italy in 2010, are parents of two children born in Italy in 2011 and 2014, respectively. The couple traveled to Sri Lanka in 2014, intending to build a home. However, their marriage deteriorated, leading to the Petitioner (mother) initiating divorce proceedings in Sri Lanka in 2015. Following domestic violence incidents, Italian courts granted legal custody of the children to the Municipality of Lecco, with the Petitioner having physical custody. In 2017, the Petitioner was granted temporary permission to visit Sri Lanka with the children but did not return, prompting the 1st Respondent to request their return through legal channels.

Key Legal Issues and Analysis

1. Habitual Residence of the Children:
   • The High Court concluded that the children’s habitual residence was in Italy based on factors such as their Italian citizenship, education, and integration in Italian society.
   • Reference was made to international jurisprudence, particularly A v. A and another (Children: Habitual Residence) [2013] UKSC 60, where habitual residence is determined by factual integration rather than mere legal definitions.
   • In Miller v. Miller 240 F.3d 392 (4th Cir. 2001), it was reiterated that habitual residence is a question of fact requiring a case-specific inquiry.
2. Wrongful Removal and Retention:
   • Section 3 of the Act defines wrongful removal as a breach of custody rights under the law of the child’s habitual residence.
   • The High Court established that the Petitioner had wrongfully retained the children in Sri Lanka beyond the permitted period, contravening a 2017 Italian court order.
3. Exceptions Under Section 11 of the Act:
   • The Petitioner invoked Section 11(1)(b), claiming grave psychological harm if the children were returned.
   • A psychological assessment report (2වා28) was presented but was found to be incomplete and lacked expert validation in court.
   • The argument regarding the 1st Respondent’s potential forfeiture of parental responsibility under 1R7(a) was dismissed as speculative. The Italian court maintained that the father had a stable relationship with the children and had not lost parental rights.
4. Impact of Sri Lankan Custody Order:
   • The Petitioner cited a Sri Lankan custody ruling (WP/HHCA/MT/73/2019/F-A and B), suggesting that the return request was conditional on her accompanying the children.
   • Section 11(4) of the Act prevents Sri Lankan courts from refusing return based solely on local custody rulings, emphasizing that the primary consideration is the Hague Convention’s provisions.
   • Section 20 of the Act bars Sri Lankan courts from making custody determinations until a return application under the Hague Convention is resolved.

Judgment and Conclusion

The Court of Appeal affirmed the High Court’s ruling, concluding that:

• The children’s habitual residence was in Italy.
• Their removal and retention in Sri Lanka were wrongful under the Act.
• No compelling evidence was presented to justify exceptions under Section 11.
• The High Court’s legal reasoning was sound, warranting the children’s return.

Consequently, the revision application was dismissed, and the order for the children’s return to Italy was upheld. No costs were awarded.

Critical Insights and Implications

• Judicial Consistency with International Law: This case underscores Sri Lanka’s adherence to the Hague Convention by prioritizing the child’s habitual residence over competing jurisdictional claims.
• Parental Rights vs. Child Welfare: While allegations of domestic violence were acknowledged, the courts emphasized that child custody and visitation arrangements must be determined by Italian authorities, not through unilateral relocation.
• Burden of Proof in Psychological Harm Claims: The rejection of an unsubstantiated psychological report highlights the necessity of rigorous evidentiary standards when invoking exceptions under Section 11.
• Custody vs. Abduction Proceedings: The ruling clarifies that return orders under the Hague Convention do not determine custody but rather restore the status quo for appropriate jurisdictional adjudication.

Citations

1. A v. A and another (Children: Habitual Residence) [2013] UKSC 60.
2. Miller v. Miller, 240 F.3d 392 (4th Cir. 2001).
3. Friedrich v. Friedrich, 983 F.2d at 1401.
4. Proceedings brought by A [2010] Fam 42.

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