The judgment No. 26382 of 2024 of the Court of Cassation represents an important reference point in the matter of international child abduction. In this case, the Juvenile Court of Bari rejected the request of a father, A.A., for the return of the minor children, taken to Italy by the mother, B.B., in violation of an agreement between the parties. The decision prompted an appeal for cassation, highlighting the complexity of the legal issues involved.
The case developed following a request made by the Public Prosecutor for the return of the minors, who, according to the father, had been unlawfully retained in Italy. The judges examined whether the conditions for international abduction under the 1980 Hague Convention were met. They first established that, although the mother had exercised her custody rights, the father had not effectively exercised his custody rights in the period prior to the transfer.
The judgment clarified that custody rights must be exercised continuously and not sporadically in order to invoke the unlawfulness of a child's transfer.
The Court recalled some fundamental principles of the Hague Convention, which aim to protect children from unlawful transfers and to ensure their return to their habitual residence. Among the most significant points:
The Court confirmed the decision of the Juvenile Court, finding that the unlawfulness of the transfer was not proven. In fact, the father had not demonstrated that he was effectively exercising custody rights, and the habitual residence of the minors had been correctly identified in Italy, where they had developed significant family and social ties. The Court therefore rejected the appeal, emphasizing that the assessment of the risk to the psychological and physical health of the minors must be rigorous and not based on generic considerations.
In conclusion, the judgment No. 26382 of 2024 offers important reflections for all those involved in family law, particularly in international contexts. It highlights the need for a thorough analysis of custody rights and the habitual residence of minors, to ensure their protection in compliance with current legislation. It is essential that parents understand that decisions regarding children must always be made in the best interests of the child, as established by international law.