Child Abduction: Commentary on Judgment Cass. civ., Sec. I, Ord. no. 15254/2019

The recent ordinance of the Court of Cassation, no. 15254 of June 4, 2019, raises crucial questions regarding the repatriation procedures for abducted minors, especially in international contexts. The case in question involves a complex situation of abduction by the mother, which led to the decision to deny the minor's repatriation, despite evidence of unlawful conduct by the mother. The judgment prompts us to reflect on the importance of considering the best interests of the child, as established by the Hague Convention and Italian legislation.

The case and its development

The appellant, T.H.A., the minor's father, challenged the decree of the Juvenile Court of Bologna, which denied the request for his daughter's repatriation, arguing that her return could pose a serious risk to the minor. The mother, Z.Y.D.R., had abducted her daughter without the father's knowledge and had falsified the minor's passport, making the situation even more delicate.

In proceedings for the international abduction of a minor, hearing the child is a necessary requirement for the lawfulness of the repatriation decree.

The importance of hearing the child

A central element of the Cassation Court's decision is the obligation to hear the minor involved. The Court emphasized that the absence of a formal hearing of the minor by the Court constituted a violation of her rights, as only a direct hearing could ensure an impartial assessment of her wishes and psychological condition. This principle is in line with Article 12 of the UN Convention on the Rights of the Child, which establishes the child's right to be heard in all matters concerning them.

Legal implications and conclusions

Judgment Cass. no. 15254/2019 highlights some fundamental aspects of Italian and international legislation on child abduction. Among the most significant legal implications, we can list:

• Necessity of a formal hearing of the minor in court.
• Assessment of the minor's level of maturity and their wishes.
• Consideration of pre-existing emotional relationships and the impact of repatriation.

In conclusion, the Court of Cassation annulled the challenged decree, highlighting the need for a complete review of the case, which takes into account not only legal aspects but also the minor's psychological well-being. This judgment represents an important step in the protection of children's rights, emphasizing that every decision must be guided by the best interests of the child themselves.