Jurisdiction in Matters of Minors: Commentary on the Ruling of the Court of Cassation, Order No. 663/2023
The recent ruling of the Court of Cassation, No. 663 of January 12, 2023, provides important insights into jurisdiction in matters concerning minors, particularly when they hold dual citizenship. The Court reaffirmed the principle that the habitual residence of the minor is the determining criterion for establishing jurisdiction, thereby overriding any agreements between the parties regarding the matter.
The Case at Hand
The dispute arose from the separation between A.A. and B.B., parents of two minors, E.E. and F.F., born and residing in the United States. The Court of Velletri declared the lack of jurisdiction of the Italian State in favor of the United States regarding custody and maintenance issues. However, the Court of Appeal of Rome, in a subsequent appeal, held that it had jurisdiction, arguing that the defendant had accepted such jurisdiction, despite the minors' residence in the United States.
Applicable Legal Principles
The Court of Cassation reiterated that, in matters concerning minors, the criterion of habitual residence must prevail, as provided by Article 42 of Law No. 218 of 1995 and the Hague Convention of 1961. Therefore, the consent of one parent regarding jurisdiction is not sufficient, as the protection of minors must be considered a higher interest.
Jurisdiction in matters concerning minors must be assessed in relation to their habitual residence, thus ensuring the continuity of their affective relationships.
In particular, the Court emphasized that the lack of jurisdiction could not be raised ex officio by the Court, as such an approach contradicts the provisions of Italian law. The Court upheld the grounds for appeal presented by A.A., declaring Italian jurisdiction inadequate for resolving the dispute, as the minors were permanently residing in the United States.
Implications of the Ruling
- Clarification on the prevalence of habitual residence in determining jurisdiction.
- Recognition of the dual citizenship of minors and the related legal implications.
- A reaffirmation of the principle that one parent's consent cannot override the criterion for protecting the minor.
This ruling represents a step forward in safeguarding the rights of minors and underscores the importance of considering their well-being within the context of jurisdiction. Jurisdictional decisions must always take into account the habitual residence of minors, ensuring that their emotional and relational needs are respected.
Conclusions
In conclusion, the ruling No. 663/2023 of the Court of Cassation reaffirms the centrality of habitual residence in determining jurisdiction in matters concerning minors. This principle is crucial to ensure the best interests of the children involved and to avoid legal conflicts between different jurisdictions. Lawyers and legal professionals must keep these provisions in mind to provide proper advice to their clients, especially in cases of separation and international custody.
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