International Child Abduction: Protection in Italy and Switzerland.
International child abduction is a global issue involving the removal or detention of a child from one country to another in violation of a judicial order, an existing custodial agreement or a de facto situation. The Hague Convention on international child abduction is an international treaty that aims to protect children and ensure their return in the event of abduction.
In Italy, the Hague Convention was ratified in 1991 and the provisions of the convention were incorporated into national legislation through the law n. 149 of 2001. Italy has also acceded to the 1996 Protocol on jurisdiction, competence, recognition, enforcement and cooperation in matters of parental responsibility and the protection of minors. Italian law provides that the Italian judicial authorities have the power to order the return of the child in the event of international abduction and to adopt interim measures to protect the child pending the return.
In Switzerland, another country where Studio Cecatiello operates, the Hague Convention was ratified in 1997 and the provisions of the convention were incorporated into national legislation through the Federal Law on International Child Abduction of 1999. Switzerland has also joined to the 1996 Protocol on Jurisdiction, Jurisdiction, Recognition, Enforcement and Cooperation in Matters of Parental Responsibility and the Protection of Children. Swiss law provides that domestic judicial authorities have the power to order the return of the child in international abduction cases and to take interim measures to protect the child pending return.
In both countries, the relevant authorities work closely with authorities in other countries to locate and return abducted children and to ensure that judicial decisions are respected. In addition, both countries have acceded to the New York Convention on Judicial Cooperation in Civil Matters, which sets out the rules for judicial cooperation between countries in matters of parental responsibility and child protection.
There are many examples of international abduction cases resolved in both Italy and Switzerland. Here are some of them:
• In 2020, an international abduction case was resolved in Italy after a father took his children away from their mother in New York and brought them to Italy. Italian authorities have been working with US authorities to locate the children and order their return to the US.
• In 2019, an international abduction case was resolved in Switzerland after a mother took her children away from their father in France and brought them to Switzerland. Swiss authorities have been working with French authorities to locate the children and order their return to France.
• In 2018, an international abduction case was resolved in Italy after a father took his children away from their mother in Australia and brought them to Italy. Italian authorities have been working with Australian authorities to locate the children and order their return to Australia.
• In 2017, an international abduction case was resolved in Switzerland after a mother took her children away from their father in Germany and brought them to Switzerland. Swiss authorities have been working with German authorities to locate the children and order their return to Germany.
These are just a few examples, there are many other international abduction cases resolved in Italy and Switzerland where relevant authorities have worked together to protect minors and ensure court decisions are respected.
Here are some recent pronouncements of the Courts called to decide on cases of international child abduction.
2/11/2022 - Italian - Private International - Cassation
For the purpose of identifying the "habitual residence" of the minor for the integration of the assumption of international abduction, in the event that the minor in a non-school condition, in the first months of life, is effectively custody by the mother in a State other than the where the father habitually resides, it is necessary to refer to the social and family environment and to the circle of people on whom the minor depends and which he necessarily shares. The "habitual residence" must be ascertained by taking into consideration, on the one hand, the regularity, the conditions and the mo…
Court of Cassation, section I civil, 2 November 2022, n. 32194
12/5/2022 – Italian – Private International – Court of Justice of the European Union
The fact that the court of the Member State to which the minor was removed from one of his parents ordered, in separate proceedings, the return of that minor to the State where he habitually resided with his parents immediately before his removal, it is not sufficient to prevent said minor from acquiring habitual residence in the territory of that Member State for the purpose of determining the law applicable to the maintenance claim (Article 3 of the Hague Protocol). Court of Justice of the European Union, 12 May 2022 , case C-644/20, W.J…
Court of Justice of the European Union, 12 May 2022, case C-644/20, WJ (Changement de résidencehabituelleducréancier d'aliments)
2/2/2022 - Italian - Private International - Cassation
In order for the unlawful abduction of the minor to take place, the following objective conditions are necessary: (a) the removal of the minor from the habitual residence without the consent of the other parent to the transfer or non-return; and (b) the ownership and effective exercise of the right of custody (or custody) by the repatriation applicant at the time of transfer or non-return, since the causes of the non-exercise are not disclosed and an abstract assessment based on the legal regime of exercise of parental responsibility. So far as …
Court of Cassation, section I civil, 2 February 2022, n. 285
26/11/2021 - Italian - Private International - Cassation
In the matter of international child abduction, the decision that ascertains the habitual residence of the minor on the basis of the future and uncertain plans of the parents rather than on his real experience and on the ongoing creation of his relational and emotional network must be annulled with postponement. In fact, the notion of «habitual residence» – implemented by the Hague Convention and by reg. 2201/2003/EC for the purpose of identifying jurisdictional competence – coincides with the place where the minor, thanks also to a lasting and stable stay even if de facto, finds and recognizes the center of gravity of…
Court of Cassation, section I, 26 November 2021, n. 37061
2/8/2021 – European – European Union Law – Court of Justice of the European Union
In the matter of international abduction of minors, it does not constitute an illicit behavior for the purposes of art. 2, point 11, reg. Brussels IIa - and this without it being necessary to verify whether the transfer of the minor took place in violation of the right of custody actually exercised - the fact that the parent holding the right of custody moves to a Member State other than that of the habitual residence of the child in order to comply with an enforceable transfer decision (addressed to both) to the Member State responsible for examining the…
Court of Justice of the European Union, 2 August 2021, case C-262/21, A
17/5/2021 - Italian - Private International - Cassation
In the field of international child abduction, the verification of the child's habitual residence before the transfer must be carried out rigorously and in compliance with the regulatory parameters, as it constitutes the unfailing requirement for the application of the child protection system envisaged by the Convention of The Hague. Violates the art. 3 of the Convention the decision which excludes that the minor can be attributed a habitual residence (and consequently also the configurability of the hypothesis of abduction) only because there has been an internal mobility of the min…
Court of Cassation, section I civil, 17 May 2021, n. 13214
24/3/2021 – European – European Union Law – Court of Justice of the European Union
The jurisdictional competence of the judge who has to rule on parental responsibility must be determined on the basis of international conventions and not pursuant to art. 10 of the "Brussels II bis" regulation (reg. 2201/2003) if the habitual residence of the minor, following an international abduction, is rooted in a non-EU state. In the absence of applicable international conventions, jurisdiction must be determined pursuant to art. 14 of the same regulation. [The case at the basis of the reference for a preliminary ruling concerns a couple of Indian nationals who are parents of a…
Court of Justice of the European Union, judgment 24 March 2021, case C-603/20 PPU, MCP
24/2/2020 – Italian – Civil – Cassation
The legislation governing the procedure for international abduction does not provide for the intervention of the minor as a party and therefore the need to integrate the contradictory also against him, subject to the appointment of a special liquidator, must be excluded. Even taking into account the evolution of the legal system which has led to the expansion of the cases in which the minor can be a part of the judgement, the right to be a part of the process does not derive from the ability to discern and from the provision of the right to be heard, up to when the legislator has not expressly acted…
Court of Cassation, section I civil, 24 February 2020, n. 4792
17/2/2021 - Italian - Private International - Cassation
In the matter of international child abduction, the verification of the existence of the conditions impeding the return pursuant to art. 13, lett. b) of the Hague Convention of 1980 – i.e. the degree of risk of exposing the child to physical and mental dangers or to an intolerable situation – is a factual investigation entrusted to the trial judge which, if based on a flawless motivation logical and juridical, escapes the control of legitimacy. The father's appeal against the decree is therefore inadmissible which, while ascertaining his illicit detention in Italy implemented…
Court of Cassation, section I civil, 17 February 2021, n. 4221
4/6/2019 – Italian – Civil – Cassation
During the proceedings concerning the international abduction of a minor, hearing the latter constitutes a necessary fulfillment for the legitimacy of the repatriation decree pursuant to art. 315-bis of the civil code and articles 3 and 6 of the Strasbourg Convention of 25 January 1996. The purpose of the hearing is in fact, pursuant to art. 13, paragraph 2, of the Hague Convention of 25 October 1980, also to take into consideration the possible opposition of the minor to repatriation and to evaluate the level of integration achieved in the new environment, save for the existence of parts…
Court of Cassation, section I, 4 June 2019, n. 15254.
It is always important to act promptly to protect minors by requesting the immediate intervention of the competent authorities.
Armando Cecatiello Lawyer in Milan and Lugano
