International Child Abduction: Analysis of Judgment Cass. civ. no. 14561/2014

The judgment of the Court of Cassation no. 14561 of 2014 represents an important reference point in the field of disputes relating to international child abduction. In this case, the Court was called upon to examine the request for repatriation of a minor, S.R., by her father, S.L., following an unlawful transfer to Italy by the mother, R.G. The Court's decision highlights crucial aspects of current legislation and the 1980 Hague Convention, which governs such situations.

Context of the Judgment

The Juvenile Court of Palermo had granted the father's request, ordering the minor's repatriation to Germany. However, the mother appealed the decree, arguing that her daughter lived stably with her and expressed the desire to remain in Italy. The Court of Cassation, upholding the mother's first ground of appeal, emphasized that the court had not adequately considered the factual situation at the time of the transfer.

The indispensable prerequisite for ordering the repatriation of a minor is that, at the time of the transfer, the right of custody is effectively exercised by the party requesting repatriation.

Legal Principles Under Discussion

The Court referred to Article 13 of the Hague Convention, according to which it is fundamental to verify whether the parent requesting repatriation effectively exercises the right of custody. In this case, the court did not consider that the minor lived with her mother at the time of the transfer. The judgment highlights that mere legal entitlement cannot prevail over the existing factual situation, which must be protected for the child's well-being.

• Importance of the active presence of the custodial parent.
• Assessment of the minor's expressed wishes, in this case confirmed by S.R. herself.
• Need to consider the minor's living context at the time of the dispute.

Conclusions

Judgment Cass. civ. no. 14561/2014 offers a clear interpretation of the rules concerning international child abduction, emphasizing the need to consider the human and relational context in which minors find themselves. The Court reiterated that the child's best interests must prevail and that decisions must be based on concrete evidence, rather than general regulatory assumptions. This principle is fundamental to ensuring that judicial decisions are always oriented towards the well-being of the child involved.