International child abduction: analysis of Cass. civ., Section I, Ord. no. 23315 of 2021

The recent order of the Court of Cassation, Section I, no. 23315 of 2021, represents an important reference point for Italian jurisprudence on international child abduction. This specific case highlighted how the child's right to maintain family ties and their social integration are absolute priorities over the mere issue of repatriation.

The specific case

The Juvenile Court of Florence, by decree of June 5, 2019, had rejected the Public Prosecutor's request to return the minor P.K.P. to (OMISSIS), who had been transferred to Italy by his mother, D.K., against the will of his father, P.B. The Court held that the child's habitual residence was to be considered linked to the maternal context in Italy, where he had found stability and social integration.

The repatriation of the child, according to the Court, would have been contrary to his superior interest, exposing him to psychological risks and depriving him of established affections.

Legal principles applied

The Court relied on principles established by the Hague Convention of 1980 and European regulations, particularly Regulation (EC) No 2201/2003. In particular, Article 13 of the Hague Convention establishes that the judicial authority may refuse repatriation if the child objects to the return and if there are risks to his safety and well-being.

• The superior interest of the child as a priority principle.
• Recognition of the child's maturity in decisions concerning them.
• Importance of the continuity of emotional and social relationships.

The Court highlighted that the transfer to Italy had occurred due to economic necessity and not out of spite towards the father, and that the child was doing well in the new environment, also demonstrating a desire to continue living in Italy.

Conclusions

The Cassation ruling no. 23315 of 2021 reaffirms the importance of considering the superior interest of the child in all cases of international abduction. It is essential that judges take into account not only the legality of the transfer but also the practical and psychological consequences that repatriation might entail. This case underscores how decisions concerning children must always be guided by their emotional stability and established family relationships, to ensure a serene and integrated future.