Cass. civ., Section I, Order no. 23631/2022: Defence Rights and International Child Abduction

The recent order of the Court of Cassation no. 23631 of July 28, 2022, addresses a sensitive and highly topical issue: international child abduction and the defence rights of the parents involved. In this case, the father appealed against a decree by the Juvenile Court of Turin which denied the repatriation of the minors, alleging a violation of his right to be informed and to participate in the hearing.

The Context of the Ruling

The Juvenile Court had excluded the applicability of international abduction, as the minors had been brought to Italy with the consent of both parents. However, the father, A.M.M., challenged the procedure, highlighting that no hearing had been scheduled for him, thus violating the principle of adversarial proceedings and defence rights.

The Court acknowledged that the right to defence cannot be completely suppressed, emphasizing the importance of communicating hearings to the requesting parent.

Violations Noted by the Court

The Court of Cassation upheld the first ground of appeal, stressing that the law expressly provides for the necessity of scheduling a hearing in chambers and informing the requesting parent of the date of such hearing. Italian and international regulations, particularly the Hague Convention of 1980, require that the right to defence be guaranteed at all stages of the proceedings.

• Violation of the right to defence
• Necessity of scheduling the hearing
• Obligation of information by the Central Authority

Implications of the Ruling

This decision by the Court of Cassation has significant implications for international child abduction proceedings. It reaffirms the centrality of the right to defence and adversarial proceedings, fundamental elements in any legal process. The absence of a hearing and proper information to the requesting parent not only compromises the right to participate in the proceedings but also undermines substantive justice in the handling of international abduction cases.

Conclusions

In conclusion, Order no. 23631/2022 of the Court of Cassation represents a significant step forward in protecting the rights of parents in situations of international child abduction. The Court reiterated the importance of ensuring a fair trial, emphasizing that every parent must have the opportunity to make their voice heard and defend their rights in court. This principle is essential not only for the protection of individual rights but also for the well-being of the children involved.