International Child Abduction: Commentary on Judgment Cass. civ., Section I, no. 18846 of 2016

The judgment of the Court of Cassation no. 18846 of 2016 represents an important reference point in matters of international child abduction. In this case, the court had to decide whether the minor L.C.'s return to the United States was legitimate, in light of the concerns expressed by the mother regarding the child's safety and the father's issues.

Context of the Judgment

The case originated from a request by the father, L.P., for the return of his daughter, who was in Italy with her mother, D.P. The juvenile court initially ordered an export ban, but subsequently authorized the minor's return based on various considerations. Among these, the court recognized the shared custody rights between the parents and assessed that the minor was stably integrated into the father's family environment.

The court ruled out the existence of obstacles to the minor's return, considering that the father's issues did not constitute a physical or psychological danger to the daughter.

Psychosocial Issues and Custody Rights

Despite the court's decision, the mother challenged the legitimacy of the proceedings, arguing that the father's issues, including alcohol dependence and inappropriate behavior, could expose the minor to risky situations. The Court of Cassation highlighted the need for a thorough analysis of the minor's living conditions and the effectiveness of the exercise of custody rights.

• Custody rights must be effective and not limited to a mere visitation right.
• The psychosocial issues of the parent must be carefully assessed, also considering the family context.
• The minor's return may be hindered if the parent is unable to guarantee a situation of safety and stability.

Conclusion and Final Reflections

The judgment under review reiterates the importance of considering the minor's opinions and fears, especially when they have reached an age where they can express discernment. The Court upheld the mother's grounds for appeal, emphasizing that, in the absence of an adequate assessment of the reasons for the minor's refusal, the return cannot be considered legitimate. This case underscores the sensitivity of issues related to international child abduction and the need for an approach that protects the rights and well-being of the minor.