Parental Authority and International Child Abduction: Commentary on Cass. Civ., Ord. No. 30123 of 2017
The ruling No. 30123 of 2017 by the Court of Cassation provides important insights into the issue of international child abduction and the definition of habitual residence. This case involved a father, G.R.C., who contested the mother, G.E., transferring their child to Italy without his consent. The Court reiterated that the habitual residence of the minor must be determined by considering their factual situation and the emotional ties that connect them to a specific place.
The Concept of Habitual Residence
The Court clarified that habitual residence cannot be defined based on simple future plans of the parents, but must reflect a concrete situation. It is essential to consider where the minor has spent most of their time and what relationships they have developed. In this case, the child had lived most of their life in Italy, and the mother had effective custody rights.
Habitual residence should be understood as the place where the minor has the center of their emotional ties.
Relevant Legislation
The ruling is based on important regulations, including the 1980 Hague Convention and EC Regulation No. 2201/2003. These legal instruments clearly establish that, in cases of international abduction, the concept of habitual residence must be interpreted in light of the best interests of the minor. In particular, Article 12 of the Convention states that the application for return must be filed within twelve months of the abduction, but the Court emphasized that compliance with this deadline does not preclude a substantive assessment.
Conclusions
In conclusion, the ruling of the Cassation highlights the importance of protecting the rights of the minor and considering their best interests in all decisions affecting them. The definition of habitual residence is crucial in these cases, and judges must pay particular attention to the minor's emotional ties and their concrete situation. Ruling No. 30123 of 2017 is part of a jurisprudential trend aimed at ensuring adequate protection for minors involved in conflicts between parents.
