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International child abduction and parental consent

The Juvenile Court of L'Aquila denied the order for the immediate repatriation of the two minors to their last place of habitual residence, stating that the transfer and subsequent stay of the minors in Italy with their mother could not be considered illegal pursuant to art. . 3 of the Hague Convention of 25 October 1980 because they had been the subject of an agreement resulting from an explicit authorization issued by the father.
However, for the Court of Cassation, the assessment of paternal consent, reported in the contested sentence, does not comply with the assessment criteria implicit and inferable from the articles of the Convention.
In fact, he believes that the discipline on international abduction aims to protect the minor against the negative effects of his illicit transfer or non-return to the place where he carries out his usual daily life. Except in exceptional circumstances, the unjust transfer or retention of a child across international borders is not in the best interests of the child. In fact, he sees the jurisdiction of the judge of his habitual residence to decide on the fundamental questions concerning his personal life affected. Therefore, the provision of an ad hoc procedure aimed at verifying the conditions for the return of the minor to his place of habitual residence protects the right of the child to have contact with both parents and favors the stability of the minor's life, ensuring that any decision relating to custody or visitation rights is taken by the competent court.
In the present case, the parental couple was not yet legally separated, at the time of the mother's transfer to Italy with the two children, and the minors were entrusted to both spouses. The father, therefore, fully exercised the right of custody.
For the Court of Cassation, any consensual modification of the regime of custody and placement of minors should have been formalized within a separation or divorce proceeding before the judge with territorial jurisdiction, i.e. that of the minors' habitual residence.
In the case in question, the Juvenile Court, by attributing an absolute and unequivocal value to the written authorization for the departure of the minors issued by the father, in consideration of the failure to provide a return date, failed to evaluate a series of factual profiles relevant to the purposes of verifying the agreement of the spouses to transfer the children to Italy. In fact, the purpose of issuing a written authorization was not assessed, nor was the strict cadence of the temporal succession that characterized the decisive facts of the judgement. The circumstance of the family custom linked to spending the summer holidays in Italy with the maternal family was not even evaluated. Finally, the existence of an ongoing crisis between the spouses was not assessed without a separation or divorce proceeding having been instituted up to the moment of departure. On the contrary, the Juvenile Court, in assessing only how the minors had experienced the transfer and school placement, drew a positive consideration from it which contributed to the decision to reject the return application. For the judges of legitimacy, therefore, an evaluation reserved to the judge competent to rule on the custody and placement of minors was consequently superimposed on the specific object of the dispute.
For these reasons, the Court of Cassation ruled that for the purposes of assessing the legitimacy of the not merely temporary transfer of the habitual residence of a minor, in the event that the legitimacy of the transfer is deduced because it implements a prior parental agreement, it is necessary that rigorous and unambiguous proof of the agreement be given by whoever deduces it. This becomes even more necessary in the event that the transfer takes place in a situation of crisis in the relationship between the parents which has not given rise to the initiation of a separation or divorce proceeding before the judge competent on the basis of the habitual residence of the minor and the separation or divorce proceedings are initiated immediately after the transfer before the judge of the place to which the minor was transferred.
Lawyer Armando Cecatiello Familiar Milan and Lugano