International child abduction: Cassation judgment no. 26382 of 2024
The Court of Cassation, with judgment no. 26382 of 2024, ruled on a case of international child abduction, analysing the conditions for the exercise of custody rights and the definition of habitual residence. The decision of the Juvenile Court of Bari, confirmed by the Court, offers food for thought on the protection of minors in complex family contexts and on parental rights.
Context of the judgment
The case involved A.A., an American father, and B.B., the Italian mother, who had transferred their four children to Italy, where they were retained against the father's will. The central issue was whether the transfer was considered unlawful under the Hague Convention. The Court ruled that, despite the father having formal custody rights, he had not exercised these rights in a concrete and continuous manner.
The judge must verify the actual exercise of custody rights at the time of the transfer, an abstract assessment not being sufficient.
Custody rights and habitual residence
The Court clarified that custody rights must be exercised continuously and not episodically. In this case, the father, while formally having the right, had not demonstrated that he could guarantee the daily presence and care of the children, as he had transferred his residence for work reasons. Furthermore, the Court considered the habitual residence of the minors, establishing that their lives were rooted in Italy, where they had access to family relationships and educational opportunities.
- Habitual residence: assessment of social and family ties.
- Custody rights: necessity of effective and continuous exercise.
- Implications for family relationships: maintaining significant contact despite distance.
Conclusions
Cassation judgment no. 26382 of 2024 represents an important step in Italian jurisprudence concerning international child abduction. It underlines the importance of a concrete assessment of custody rights and habitual residence, placing the best interests of the child at the centre. In a global context where families may be divided between different states, it is essential to ensure that the rights of minors are always respected and protected.
