International Child Abduction: Analysis of the Judgment of Cass. civ., Sez. I, n. 32194/2022

The judgment n. 32194 of November 2, 2022, by the Court of Cassation serves as an important reference in the field of international child abduction, addressing sensitive issues related to the habitual residence of the child and the custody rights of the parents. In this article, we analyze the key points of the judgment, providing a clear and understandable framework of the issue.

The Case Under Review

The Juvenile Court of Sassari had ordered the immediate return of the minor C.C. to a foreign country, arguing that the mother's transfer to Italy, A.A., had occurred without the father's consent, B.B. The Court determined that the minor had his habitual residence in the country of origin, even though he lived in Sardinia. However, A.A. appealed the decision, bringing the matter before the Court of Cassation.

  • The minor was born in a foreign country and had lived there until November 2021.
  • The mother had returned to Italy without the father's consent, who exercised custody rights.
  • The Court had deemed there was no risk for the minor in returning to the country of origin.
In matters of international child abduction, when a child is actually in the custody of the mother, it is necessary to refer to the social and family environment and to the circle of people on whom the child depends.

Legal Principles Established by the Court

The Court of Cassation, partially accepting the appeal, highlighted several fundamental legal principles. In particular, it emphasized that:

  • The habitual residence of the minor must be determined based on a comprehensive analysis of living circumstances, not solely based on birthplace or duration of stay.
  • It is essential to consider the emotional and social ties that the minor has with his living environment.
  • The judge must evaluate the stability and integration of the mother and the minor in the new social context.

The Court thus stated that the lower court had not taken into account the young age of the minor and the specific conditions in which he lived. This led to an incorrect assessment of his habitual residence and the father's custody rights.

Conclusions

The judgment n. 32194/2022 of the Court of Cassation represents an important step forward in the protection of children's rights and in defining habitual residence in cases of international abduction. The decision underscores the importance of a holistic and sensitive approach to family dynamics, ensuring that the best interests of the child are always preserved. In a complex legal context such as that of international abduction, it is essential for judges to carefully evaluate all factual elements and specific circumstances of each case to ensure fair and appropriate justice for the most vulnerable.

Bianucci Law Firm