Child Abduction: Analysis of Judgment Cass. civ., Section I, No. 26382 of 2024

Judgment No. 26382 of 2024 by the Court of Cassation represents an important reference point in matters of international child abduction. In this case, the Juvenile Court of Bari rejected the request of a father, A.A., for the return of his minor children, who had been brought to Italy by their mother, B.B., in violation of an agreement between the parties. The decision led to an appeal to the Court of Cassation, highlighting the complexity of the legal issues involved.

Context of the Judgment

The case arose from a request filed by the Public Prosecutor's Office for the return of the minors, who, according to the father, had been unlawfully retained in Italy. The judges examined whether the conditions for international abduction under the 1980 Hague Convention were met. They first ascertained that, although the mother had exercised custody rights, the father had not actually exercised his custody rights in the period preceding the transfer.

The judgment clarified that custody rights must be exercised continuously and not episodically in order to invoke the unlawfulness of a child's transfer.

Fundamental Principles of the Hague Convention

The Court recalled some fundamental principles of the Hague Convention, which aim to protect children from unlawful transfers and ensure their return to their habitual residence. Among the most significant points:

• The transfer is considered unlawful when it occurs in violation of custody rights.
• Habitual residence must take into account the child's social and family integration.
• The judge must consider whether the requesting parent had effectively exercised custody rights at the time of the transfer.

Decision of the Court of Cassation

The Court upheld the decision of the Juvenile Court, finding that the unlawfulness of the transfer had not been proven. In fact, the father had not demonstrated that he was concretely exercising his custody rights, and the minors' habitual residence had been correctly identified in Italy, where they had developed significant family and social ties. The Court therefore rejected the appeal, emphasizing that the assessment of risk to the children's psycho-physical health must be rigorous and not based on general considerations.

Conclusions

In conclusion, judgment No. 26382 of 2024 offers important food for thought for all those involved in family law, particularly in international contexts. It highlights the need for a thorough analysis of custody rights and the habitual residence of minors, to ensure their protection in compliance with current legislation. It is essential for parents to understand that decisions concerning children must always be made in the best interests of the child, as established by international law.