International Child Abduction: Analysis of the Cass. Civ. No. 14561/2014 Ruling
The ruling of the Court of Cassation No. 14561 of 2014 represents an important reference point in the field of disputes related to international child abduction. In this case, the Court was called to examine the request for the return of a minor, S.R., by her father, S.L., following an illegal transfer to Italy carried out by her mother, R.G. The Court's decision highlights crucial aspects of the current legislation and the 1980 Hague Convention, which governs such situations.
The Context of the Ruling
The Juvenile Court of Palermo had granted the father's request, ordering the return of the minor to Germany. However, the mother appealed the decree, arguing that the daughter was living permanently with her and expressed the desire to remain in Italy. The Court of Cassation, accepting the first ground of the mother's appeal, emphasized that the court had not adequately considered the factual situation at the time of the transfer.
An essential prerequisite for ordering the return of the minor is that, at the time of the transfer, the right of custody is effectively exercised by the applicant for the return.
The Legal Principles at Stake
The Court referred to Article 13 of the Hague Convention, which states that it is crucial to verify whether the parent requesting the return is effectively exercising the right of custody. In this case, the court did not consider that the minor was living with her mother at the time of the transfer. The ruling emphasizes that mere legal custody cannot prevail over the existing factual situation, which must be protected for the best interest of the minor.
- Importance of the active presence of the custodial parent.
- Assessment of the expressed wishes of the minor, in this case confirmed by S.R. herself.
- Need to consider the living context of the minor at the time of the dispute.
Conclusions
The ruling Cass. Civ. No. 14561/2014 provides a clear interpretation of the norms related to international child abduction, emphasizing the need to consider the human and relational context in which minors find themselves. The Court reiterated that the best interest of the minor must prevail and that decisions must be based on concrete evidence rather than general normative assumptions. This principle is fundamental to ensuring that judicial decisions are always oriented towards the well-being of the minor involved.
