Analysis of Judgment Cass. pen., Sec. VI, no. 10905 of 2023: Wilful Failure to Comply with Judicial Orders

Judgment no. 10905 of March 14, 2023, by the Supreme Court of Cassation offers important clarifications on the crime referred to in art. 388, paragraph 2, of the Italian Criminal Code, concerning the wilful failure to comply with judicial orders in matters of child custody and visitation rights. This ruling is of particular relevance to parents involved in separation and custody proceedings, as it outlines the limits of criminal liability in cases of non-compliance.

The Case: Refusal of Contact Between Parents and Children

In the specific case, the defendant A.A. had been convicted for preventing the father B.B. from meeting his daughter, thus evading a civil court order. The Court of Appeal had held that the mere refusal to comply with the judge's order constituted the crime referred to in art. 388, paragraph 2, of the Italian Criminal Code. However, the Court of Cassation examined the issue, establishing that evasive conduct requires a 'quid pluris' beyond simple non-compliance.

The criminally relevant conduct is not constituted in itself by a single and occasional violation of orders concerning child custody, but requires an evasive attitude which, over an appreciable period of time, is capable of preventing the correct implementation of the arrangements for the non-custodial parent's relationship with the child.

Distinction Between Non-Compliance and Evasive Conduct

The Court reiterated that the crime referred to in art. 388, paragraph 2, of the Italian Criminal Code cannot be established in cases of simple non-compliance, but requires the custodial parent to implement fraudulent or pretexts. It is essential that the refusal to allow meetings between the non-custodial parent and the child is not occasional, but rather part of a systematic behaviour aimed at obstructing visits.

• The crime of failure to comply is constituted only by conduct that significantly obstructs the right of visitation.
• A single violation is not sufficient in itself to constitute criminally relevant conduct.
• Evasive conduct must be systematic and not sporadic.

Conclusions: Practical Implications of the Judgment

Judgment no. 10905 of 2023 represents a step forward in jurisprudence concerning the rights of minors and the obligation of cooperation between parents in situations of separation. It clarifies that criminal liability for non-compliance with a judicial order should not be applied automatically, but must consider the context and nature of the conduct. This ruling offers greater protection for parents who, for legitimate reasons, may not be able to comply punctually with provisions regarding visitation rights, without incurring criminal sanctions.