Civil Cassation n. 18845/2024: Return of the Minor and Habitual Residence

The ruling n. 18845/2024 of the Court of Cassation fits into a highly relevant legal context concerning the international abduction of minors. In this case, the Court had to decide on the legitimacy of the repatriation of a minor, C.C., from the mother, A.A., to Spain, the country of habitual residence, against the will of the father, B.B. The Court's decision highlights the importance of considering not only the legal aspect of custody but also the emotional and social context in which the minor lives.

Case Summary

The Juvenile Court of Milan had accepted B.B.'s request for the minor's return to Spain, arguing that the child's habitual residence was in that country, despite the forced transfer to Italy by the mother. This decision was challenged by the mother, who pointed out that the minor had now integrated into the Italian context, with stable emotional and social ties.

The Court of Cassation accepted the appeal, emphasizing the importance of examining the concept of "habitual residence" in light of the best interests of the minor.

Analysis of the Ruling

The Court recalled the principle that a minor's habitual residence cannot be determined solely on the basis of their birth or the first years of life. It is necessary to consider the context in which the minor currently lives, the emotional ties, and the stability of their daily life. In the case of C.C., the Court highlighted that the child, although born in Spain, had developed significant ties in Italy.

• The minor has been living in Italy for more than a year, in a stable family environment.
• The mother has exclusively provided for his maintenance and education.
• The father did not exercise effective custody prior to the transfer.

Furthermore, the Court questioned the assertion of the Milan Court regarding the effective exercise of custody rights by the father, emphasizing that this must be demonstrated with concrete evidence and not based on mere presumptions.

Conclusions

The ruling n. 18845/2024 represents a landmark in Italian jurisprudence concerning the protection of minors in situations of international abduction. It clarifies that, in cases of very young minors, the assessment of their habitual residence must take into account the stability of their current environment and emotional ties, rather than being limited to formal criteria. This approach aims to ensure respect for the principle of the best interests of the minor, a cornerstone in every legal decision regarding children.