Parental Authority and International Child Abduction: Commentary on Cass. civ., Ord. no. 30123 of 2017

Judgment no. 30123 of 2017 by the Court of Cassation offers important insights into the issue of international child abduction and the definition of habitual residence. This case involved a father, G.R.C., who challenged the mother's, G.E.'s, transfer of their son to Italy without his consent. The Court reiterated that the child's habitual residence must be determined by considering their de facto 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 mere future plans of the parents, but must reflect a concrete situation. It is essential to consider where the child 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 must be understood as the place where the child has the center of their emotional ties.

Reference Legislation

The judgment is based on important regulations, including the Hague Convention of 1980 and Regulation (EC) 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 child's best interests. In particular, Article 12 of the Convention states that the action for repatriation must be brought 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 Cassation judgment highlights the importance of protecting the child's rights and considering their best interests in all decisions concerning them. The definition of habitual residence is crucial in these cases, and judges must pay particular attention to the child's emotional ties and their concrete situation. Judgment no. 30123 of 2017 is part of a line of case law aimed at ensuring adequate protection for children involved in parental conflicts.