International Child Abduction: Analysis of the Cass. civ., Section I, Ord. No. 23315 of 2021

The recent ruling by the Court of Cassation, Section I, No. 23315 of 2021, represents an important reference point for Italian jurisprudence regarding international child abduction. This specific case highlighted how the child's right to maintain family ties and social integration are absolute priorities over the mere issue of repatriation.

The Specific Case

The Juvenile Court of Florence, with a decree dated June 5, 2019, rejected the request of the Public Prosecutor to return the minor P.K.P. to (OMISSIS), who had been transferred to Italy by his mother, D.K., against the will of his father, P.B. The Court found that the minor's habitual residence should be considered linked to the maternal context in Italy, where he had found stability and social integration.

The repatriation of the minor, according to the Court, would have been contrary to his best interest, exposing him to psychological risks and depriving him of established affections.

Legal Principles Applied

The Court relied on principles established by the Hague Convention of 1980 and European regulations, particularly Regulation EC No. 2201/2003. In particular, Article 13 of the Hague Convention states that the judicial authority may refuse repatriation if the minor opposes the return and if there are risks to his safety and well-being.

  • Best interest of the child as a priority principle.
  • Recognition of the maturity of the minor in decisions affecting him.
  • Importance of continuity in emotional and social relationships.

The Court emphasized that the transfer to Italy had occurred out of economic necessity and not as a retaliation against the father, and that the minor was thriving in the new context, also demonstrating a desire to continue living in Italy.

Conclusions

The ruling of the Cassation No. 23315 of 2021 reaffirms the importance of considering the best interest of the child in every case of international abduction. It is crucial that judges take into account not only the legality of the transfer but also the practical and psychological consequences that repatriation could entail. This case underscores how decisions regarding minors must always be guided by their emotional stability and established family relationships, to ensure a serene and integrated future.

Bianucci Law Firm