Cass. civ., Sez. I, Ord. n. 13214/2021: The Complexity of International Child Abduction

The ruling n. 13214 of 2021 by the Court of Cassation addresses a topic of great relevance in family law: international child abduction. In this article, we will analyze the key points of the decision, highlighting the legal implications and the European and international regulations involved, with particular attention to the Hague Convention.

The Case Under Review

The father of the minor M.L.T.H. filed an appeal after the Juvenile Court of Florence excluded the existence of international abduction, considering that the minor did not have a habitual residence in (OMISSIS) prior to the transfer. The mother, M.C., had moved the minor to Italy without the father's consent, justifying this act with alleged violent behavior from her partner. The central issue was whether the minor actually had a habitual residence in (OMISSIS) at the time of abduction.

The violation of the obligations imposed by parental responsibility must be assessed in the ordinary proceedings related to family disputes.

Relevant Regulations

The Court referred to Article 3 of the Hague Convention, which defines the wrongful transfer of a minor as that which occurs in violation of custody rights. It is therefore essential to establish what the minor's habitual residence is in order to determine the competent jurisdiction. The Juvenile Court deemed it impossible to identify a habitual residence due to the minor's frequent relocations, but the Court challenged this assessment, emphasizing that the habitual residence must be determined based on objective and factual criteria.

Implications of the Ruling

The decision of the Cassation establishes that the determination of habitual residence cannot be conducted superficially. The Court underscored that parental responsibility must be effectively exercised and that the habitual residence should be assessed considering the stability of the minor's family life. It is crucial that decisions regarding custody and relocation are always oriented towards the best interest of the minor.

• Recognition of co-parenting and equality of parental rights.
• Need for a rigorous determination of the minor's habitual residence.
• Evaluation of unilateral decisions regarding the minor's relocation.

Conclusions

The ruling n. 13214/2021 of the Court of Cassation represents an important milestone in the recognition and protection of minors' rights in situations of international abduction. It reaffirms the importance of a rigorous and careful legal approach, which centers on the stability and well-being of the minor, preventing unilateral transfers from compromising their emotional and relational life.