Supreme Court Civil Ruling no. 18845/2024: Return of the Minor and Habitual Residence

Ruling no. 18845/2024 of the Court of Cassation falls within a legally significant context concerning the international abduction of minors. In this case, the Court had to decide on the lawfulness of the repatriation of a minor, C.C., from his mother, A.A., to Spain, the country of habitual residence, against the wishes of the father, B.B. The Court's decision highlights the importance of considering not only the legal aspect of custody but also the emotional and social context in which the minor lives.

The Case in Brief

The Juvenile Court of Milan had granted B.B.'s request for the minor's return to Spain, arguing that the child's habitual residence was in that country, despite the mother's forced transfer to Italy. This decision was appealed by the mother, who pointed out that the minor was now integrated into the Italian context, with stable emotional and social ties.

The Court of Cassation upheld the appeal, emphasizing the importance of examining the concept of "habitual residence" in light of the minor's best interests.

Analysis of the Ruling

The Court recalled the principle that a minor's habitual residence cannot be determined solely on the basis of their birth or the first years of life. It is necessary to consider the context in which the minor currently lives, their emotional ties, and the stability of their daily life. In the case of C.C., the Court highlighted that the child, despite being born in Spain, had developed significant ties in Italy.

• The minor has been living in Italy for over a year, in a stable family environment.
• The mother has solely provided for his maintenance and education.
• The father did not exercise effective custody in the period preceding the transfer.

Furthermore, the Court questioned the Milan Court's assertion regarding the father's effective exercise of custody rights, emphasizing that this must be proven with concrete evidence and not based on mere presumptions.

Conclusions

Ruling no. 18845/2024 represents a milestone in Italian jurisprudence concerning the protection of minors in situations of international abduction. It clarifies that, in cases of young children, the assessment of their habitual residence must take into account the stability of their current environment and their emotional ties, rather than being limited to formal criteria. This approach aims to ensure respect for the principle of the minor's best interests, a cornerstone in all legal decisions concerning children.