International Child Abduction: Commentary on the Judgment of the Court of Cassation, Section I, No. 9638/2015
The judgment of the Court of Cassation No. 9638 of 2015 addresses one of the most delicate issues in family law: international child abduction. In this case, the Court had to decide on an appeal regarding the request for the repatriation of a minor to Peru, highlighting the complexities related to family dynamics and the importance of protecting the best interests of the child.
The Context of the Judgment
The case concerned D.T.E.M., a minor involved in a dispute between the parents, C.D.S.R. and D.T.F. The Court of Appeal of Trieste had denied the repatriation of the child to Peru, arguing that a return would pose physical and psychological risks. In particular, the judge emphasized that the minor, after an initial transfer to Italy, had established significant ties and a support network, which are essential for his psychological and emotional development.
The protection of the best interests of the child is fundamental in every judicial decision concerning his life and well-being.
The Reasons of the Court of Cassation
The Court of Cassation accepted the appeal, emphasizing that the lower court's assessment did not take into account the circumstances that could prevent repatriation as outlined in the Hague Convention of 1980. In particular, Article 13, letter b) states that repatriation may be denied if there is a well-founded risk to the minor. The Court then reiterated that the judge must consider not only the current well-being of the child but also the implications of his possible repatriation to the country of origin.
Legal and Practical Implications
This ruling highlights several crucial issues:
- The priority of the child's interests: every decision must be made with consideration of his psychological and physical well-being.
- The role of the Hague Convention: it provides a clear legal framework for addressing international child abductions.
- The necessity of a comprehensive assessment: judges must consider all aspects of the child's life, including emotional ties and social support.
Conclusions
In conclusion, the judgment of the Court of Cassation No. 9638 of 2015 represents an important step forward in the protection of the rights of minors involved in international abduction situations. It reaffirms the centrality of the best interests of the child in family law, drawing attention to how judicial decisions must always take into account the actual living conditions and well-being of the child, rather than being limited to formal assessments.
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