International Child Abduction: Analysis of the Cass. civ. n. 22022/2023 Ruling

The ruling n. 22022 of July 24, 2023, by the Court of Cassation fits into a delicate and highly significant legal context: international child abduction. This case, involving a father and a mother in conflict over custody of their child, leads to profound reflections on parental rights and the definition of the child's habitual residence.

The Case and the Ruling of the Court of Cassation

The case originated from a request by the father, who reported the abduction of the child by the mother, which occurred through an unlawful transfer to Italy. The Court had to determine whether the child had a habitual residence in the United Kingdom, as claimed by the father, or whether he could be considered resident in Italy due to the transfer. The Court clarified that the habitual residence must be determined based on objective criteria and not on the subjective considerations of the parties.

The habitual residence lies in the place that denotes a certain integration of the child into a social and family environment.

The Court emphasized that joint legal custody, exercised by the parents until the transfer, conferred the United Kingdom the title of the child’s habitual residence, despite the movements from one home to another. This principle reflects what is established by the Hague Convention and European jurisprudence, highlighting that habitual residence is a concept linked to the stability and continuity of the child's life.

Fundamental Legal Principles

• Hague Convention: Establishes the regulations for the protection of minors and the resolution of disputes related to their custody.
• Italian and European Jurisprudence: Emphasizes the importance of considering not only custody rights but also the well-being of the child.
• Best Interest of the Child: This is the guiding principle in all decisions related to custody and the transfer of minors.

The ruling also reiterated that any risks to the child, in the event of a return, must be concrete and not merely hypothetical. The Court rejected the mother's appeal, stating that there was insufficient evidence to demonstrate a real danger to the child in the event of his return to the United Kingdom.

Conclusions

The ruling n. 22022/2023 of the Court of Cassation represents an important reference point for issues related to international child abduction. It underscores how the identification of habitual residence must be based on objective criteria and careful consideration of the factual circumstances. This case also highlights the importance of protecting the child's right to grow up in a stable and safe environment, while respecting the rights of both parents.