International Child Abduction: Commentary on Judgment Cass. civ., 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 concerning the request for the repatriation of a minor to Peru, highlighting the complexities related to family dynamics and the importance of protecting the child's best interests.

Context of the Judgment

The case concerned D.T.E.M., a minor involved in a dispute between his parents, C.D.S.R. and D.T.F. The Court of Appeal of Trieste had denied the child's repatriation to Peru, arguing that his 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 social support network, crucial for his psychological and emotional development.

The protection of the child's best interests is fundamental in every judicial decision concerning his life and well-being.

Reasons of the Court of Cassation

The Court of Cassation upheld the appeal, emphasizing that the lower court's assessment had not taken into account the obstructive circumstances provided for by the 1980 Hague Convention. In particular, Article 13, letter b) states that repatriation may be refused if there is a well-founded risk to the child. The Court therefore reiterated that the judge must consider not only the child's current well-being but also the implications of his potential repatriation to his country of origin.

Legal and Practical Implications

This judgment highlights several crucial issues:

• The priority of the child's best interests: every decision must be made with his psychophysical well-being in mind.
• The role of the Hague Convention: it provides a clear legal framework for managing international child abductions.
• The need for a global 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 protecting the rights of minors involved in international abduction situations. It reaffirms the centrality of the child's best interests in family law, drawing attention to how judicial decisions must always consider the child's actual living conditions and well-being, rather than being limited to formal assessments.