Cass. Civ., Ord. n. 4222/2021: Reflections on International Child Abduction

The judgment of February 17, 2021, of the Court of Cassation, no. 4222, offers an important analysis on the issue of international child abduction, addressing crucial questions concerning the best interests of the child and the definition of "habitual residence". This specific case involves C. R., the father of a minor, C. G. E., who had filed an application for the child's repatriation to Spain, after the mother, I. V., had taken her to Italy. The Court reiterated the principles established by the Hague Convention of 1980 and Regulation (EC) No 2201/2003.

Context of the Judgment

The Juvenile Court of Piedmont had already denied the request for the minor's return, motivating the decision with an assessment of the context in which the child found herself. In particular, the Court had highlighted the mother's lack of employment and housing in Spain, contrasted with a strong family and professional connection in Italy.

• The concept of "habitual residence" is crucial for determining the child's place of life.
• The Court recalled the importance of the child's best interests, as established by case law.
• The assessment of the risk of physical or psychological dangers is fundamental in the repatriation decision.

Fundamental Principles on International Abduction

The regulation on international abduction aims to protect the child against the harmful effects of their unlawful transfer or failure to return to the place where they habitually live.

The judgment reiterates that the judge must consider not only the immediate well-being of the child but also their integration into the new environment. The Court clarified that, in cases where the minor has already established emotional and social ties in Italy, it is essential to consider these factors in the final decision.

In particular, the Court held that the child's return to Spain must not be ordered if there is a well-founded risk of danger to her safety and well-being. This principle is enshrined in Article 13 of the Hague Convention, which states that the return cannot be ordered if there are reasons that could expose the child to intolerable situations.

Conclusions

In conclusion, ordinance no. 4222 of 2021 of the Court of Cassation represents a significant reference point in Italian jurisprudence concerning international child abduction. It reaffirms the importance of assessing the best interests of the child, taking into account their habitual residence and living conditions. The decision not to admit the father's appeal is supported by solid reasoning that places the child's protection and well-being at the center. The case offers useful insights for legal debate and for the practice of legal professionals dealing with family and juvenile law matters.