Child Abduction: Commentary on Judgment Cass. Civ. No. 14792 of 2014
Judgment No. 14792 of 2014 of the Court of Cassation deals with a very sensitive issue: child abduction and respect for parental authority in international contexts. In this case, the Juvenile Court of Marche upheld the request for the repatriation of a child to Greece, after the father, D.Y., had taken the minor to Italy without the consent of the mother, L.E.E.
Facts of the Case
The case began with the family's move to Greece, followed by a trip to Italy to visit the paternal grandparents. However, the father then decided to keep the child in Italy, violating the initial agreements. The Court therefore established that the child's habitual residence was in Greece and ordered his return, highlighting the absence of maternal consent for the definitive transfer.
The Court emphasized that custody of the minor, prior to the trip to Italy, was jointly exercised by the parents and that any modification required the consent of both.
Underlying Legal Principles
The Court's decision is based on the Hague Convention of 1980, which aims to protect children from wrongful removals. In particular, the Court reiterated that the child's return must take place in compliance with his habitual residence, which is defined as the place where the child has the center of his emotional ties. This principle is essential to ensure stability and continuity in the child's life.
- Habitual residence must be established based on objective criteria, such as the duration of stay and the presence of a family environment.
- The consent of both parents is fundamental for any transfer of the child.
- The living conditions in case of return cannot be assessed unless they reach the degree of physical or psychological danger for the child.
Conclusions
Judgment No. 14792 of 2014 offers important food for thought for lawyers and families involved in situations of international child abduction. It is crucial for parents to respect custody agreements and for any transfers to always be accompanied by mutual consent. The protection of children's rights must remain at the center of every decision, as reiterated by the Court.
