Child Abduction: Analysis of the Judgment of the Supreme Court, Section I, Order No. 4792/2020
The judgment of the Supreme Court No. 4792 of 2020 represents an important precedent in the matter of international child abduction. In this case, the Court examined the issues related to the repatriation of a minor, S.E., from her residence in Italy to Germany, her country of origin and habitual residence, establishing principles of fundamental importance for the protection of children's rights.
The Case at Hand
The appeal was filed by D.L.M.E., the mother of the minor, against the decision of the Juvenile Court of Florence, which accepted the request of the father, S.H.V.B., to order the repatriation of their daughter to Germany. The Court highlighted that the minor's habitual residence should be identified in Germany, the place where she was born and where the family's emotional and social ties were established. This is a crucial point, as the definition of habitual residence is decisive for the repatriation decision under Article 12 of the Hague Convention and EU Regulation 2201/2003.
The Court's Rationale
The ruling clarifies that a minor's habitual residence is the place where the center of their emotional ties is located, not merely the place of legal residence.
The Court reiterated that the best interest of the child must be paramount, and in the absence of evidence of a well-founded risk to the minor in the event of repatriation, the judge cannot impose a subjective assessment of living conditions in Germany. Furthermore, it was emphasized that the registration of the minor in an Italian school did not justify her stay in Italy, as this situation was the result of an unlawful abduction.
Relevant Legal Principles
The ruling is based on established legal principles, including:
- Article 12 of the Hague Convention: repatriation is mandatory if the transfer occurred unlawfully and less than a year has passed since the transfer.
- Article 13 of the same convention: the judge may refuse repatriation only in the presence of well-founded risks for the minor.
- Article 11 of EU Regulation 2201/2003: the minor must be heard if they have reached an appropriate age and maturity.
In this case, the Court determined that the minor did not present any psychological or physical risk in the event of repatriation, as the father was able to ensure her protection. Additionally, the necessity of appointing a special guardian for the minor was excluded, as the regulations do not provide for this figure in such proceedings.
Conclusions
The decision of the Supreme Court No. 4792/2020 is fundamental in clarifying how a minor's habitual residence should be determined and what rights and protections are reserved for them in the case of international abduction. It underscores the importance of an objective and documented assessment of the living conditions of the minor and their family, always anchored to the principle of the best interest of the child.
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