Jurisdiction in matters concerning minors: commentary on Cass. civ., Ord. no. 663/2023

The recent order of the Court of Cassation, no. 663 of January 12, 2023, offers important food for thought on jurisdiction in matters concerning minors, particularly when they have dual citizenship. The Court confirmed the principle that the habitual residence of the minor is the determining criterion for establishing jurisdiction, overriding any agreements between the parties in this regard.

The case under review

The dispute arose from the separation between A.A. and B.B., parents of two minors, E.E. and F.F., born and residing in the United States. The Court of Velletri declared the Italian State's lack of jurisdiction in favor of the United States regarding custody and maintenance issues. However, the Court of Appeal of Rome, in a subsequent appeal, held that it had jurisdiction, arguing that the defendant had accepted such jurisdiction, despite the minors' residence in the United States.

Legal principles applied

The Court of Cassation reiterated that, in matters concerning minors, the criterion of habitual residence must prevail, as provided for by art. 42 of Law no. 218 of 1995 and the Hague Convention of 1961. Therefore, the consent of a parent regarding jurisdiction is not sufficient, as the protection of minors must be considered a paramount interest.

Jurisdiction in matters concerning minors must be assessed in relation to their habitual residence, thus ensuring the continuity of their emotional relationships.

In particular, the Court highlighted that the lack of jurisdiction could not be raised ex officio by the Court, as this approach conflicts with the provisions of Italian law. The Court upheld the grounds for appeal presented by A.A., declaring Italian jurisdiction inadequate for resolving the dispute, as the minors resided permanently in the United States.

Implications of the ruling

• Clarification on the prevalence of habitual residence in determining jurisdiction.
• Recognition of the dual citizenship of minors and its legal implications.
• Affirmation of the principle that a parent's consent cannot override the criterion of child protection.

This ruling represents a step forward in protecting the rights of minors and underscores the importance of considering their well-being in the context of jurisdiction. Jurisdiction decisions must always take into account the habitual residence of minors, ensuring that their emotional and relational needs are respected.

Conclusions

In conclusion, ruling no. 663/2023 of the Court of Cassation reaffirms the centrality of habitual residence in determining jurisdiction in matters concerning minors. This principle is crucial for ensuring the best interests of the children involved and for avoiding legal conflicts between different jurisdictions. Lawyers and legal professionals must bear these provisions in mind to provide correct advice to their clients, especially in cases of international separation and custody.