WHAT IS INTERNATIONAL CHILD ABDUCTION?
When one of the parents voluntarily decides, unilaterally and without the consent of the other, to steal the child with the intention of hiding him abroad and keeping him permanently with him, there is the International child abduction.
International child abduction occurs even when the child is prevented from returning to the usual state of residence after a transfer that took place for legitimate reasons, as in the case of a holiday, a stay with the grandparents, after which the parent who took the child with him does not in the country of habitual residence.
International child abduction entails not only the child for the child terrible detachment from one of the two parental figures, but also the 'abandonment of the broader context of life in which the child was inserted.
WHAT NORMS PROTECT MINORS?
The Convention on the Rights of the Child signed in New York on November 20 1989 and ratified by Italy with the law 27 May 1991 n. 176 states that the child has the right to maintain a stable relationship with both parents. Article. 9 of the Convention establishes the right of the child, separated from both parents or one of them, to regularly maintain personal relationships and direct contact with both parental figures, unless this is contrary to the child's own interests. Said principle, has been resumed in the Italian legal system, by the law 54 / 2006 and also the Court of Cassation has specified several times that what is most relevant is the interest of the child not to be arbitrarily removed from his living environment.
WHAT RIGHTS ARE PROTECTED?
Our legal system has the right to two-parenting.
The parent, even if legitimate custodian of the minor, he can not arbitrarily deprive the child of the other parental figure of reference but has the obligation to educate and sensitize the minor to have a continuous relationship with the other parent. The transfer of the child from the environment in which he grew up and has always lived, where he built the center of his affections and interests and the first important points of reference in the delicate phase of growth and personality formation, is a real act of violence, which could cause serious harm to the psycho-physical well-being of the child. In cases of subtraction, as in all decisions relating to children, the superior interest of the child must therefore be protected to cultivate a constant and equal relationship with both parents and to preserve the environment in which the child is integrated and cultivate the most significant relationships.
WHAT PROTECTIONS IN THE EVENT OF THE abduction of minors in the territory of the European Union?
When the child, habitually resident in a Member State, is unlawfully conducted or held in another EU Member State, the child's return procedure under the provisions of the Hague Convention on the Civil Aspects of International Child Abduction applies.
DOES AN EMERGENCY PROCEDURE EXIST IN THE CASE OF THE UNLAWFULLY UNDERLY MINOR?
The aim is to ensure timely and effective protection of the minor, acting immediately both to contain the damage caused to the child and to prevent the child from integrating into the State and the environment in which it is found as a result of subtraction, making more traumatic or even inappropriate, the return of the child to the country of habitual residence. The urgent procedure is aimed at ensuring the immediate return of the child to his / her country of habitual residence.
By express provision of law, the authority must act with the utmost speed, using the emergency procedures provided for by the legal system of the requested State and the return order must be issued no later than the deadline of six weeks from receipt of request for repatriation. The six-week deadline can only be exceeded in the presence of exceptional, explicit and motivated circumstances that make it impossible to observe.
The urgent procedure applies to any minor who has his habitual residence in a Contracting State and is not in charge of the 16 year of age.
WHAT ARE THE REQUIREMENTS FOR THE PROCEDURE?
Assumptions for the procedure are the illegality of the transfer or non-return.
The transfer or non-return must have occurred in violation of a right of custody, practiced in practice by the parent who has been subtracted and assigned by the legislation or by a judicial or administrative decision of the State where the child had the habitual residence immediately before of subtraction.
WHO IS COMPETENT TO DECIDE?
Once the request for re-entry has been submitted, or through the Central Authority, or directly pursuant to art. 29 Conv. Aja, the competence to deal with the same is up to the authorities of the State where the child has been transferred or detained.
Article. 12 of the Convention establishes that, if the request for repatriation is presented before the year of the transfer or non return of the minor in the country of habitual residence, the judicial authority before which the repatriation procedure is pending, established the existence of the conditions for the application of the conventional procedure and, first of all, the illegality of the transfer / detention, has the obligation to order the immediate return of the minor.
WHEN CAN THE REPATRIATION APPLICATION BE REFUSED?
The rejection of the request for re-entry is to be considered an exceptional hypothesis.
The refusal to return may be based on evidence that the custodial parent, at the time of subtraction, did not in fact exercise the right to custody or in any case had lent, even afterwards, his consent to the transfer or non-return of the minor.
It is also possible to reject the request for repatriation when the return of the child to habitual residence would determine the underlying risk of being exposed to:
physical hazards psychic dangers intolerable situations.
WHAT ARE THE MOST DEFENSES USED BY THE PARENT RESPONSIBLE FOR THE SUBTRACTION?
Exposure to intolerable situations is the exception most often invoked by the parent who opposes repatriation. It often happens that the parent who transfers or keeps the minor child abroad presents, before the abduction, a complaint for threats or violence against himself or the minor against the other parent.
Too often they are false accusations with the sole purpose of preventing the repatriation of the minor.
The EC Regulation, to prevent such offenses, in addition to the provisions of the 1980 Convention of The Hague, intervened to limit the application of this exception to repatriation, expressly stating that the repatriation judge "can not refuse to order the return of the child "where it is shown that appropriate measures are in place in the State of habitual residence of the child to ensure the protection of the child after his return.
IS LISTENING TO THE CHILD PROVIDED?
The Hague Convention expressly provides that the competent judicial authority may not order the return of the minor if, during the repatriation procedure, he expresses his opposition to the return to his habitual residence.
The EC Regulation prescribes the obligation to listen to the minor during the treatment of the request for re-entry, unless this is inappropriate in relation to the age and degree of maturity achieved by them.
Failure to listen or refusal to listen not properly motivated by the judge on the basis of argument regarding the capacity for discernment reached by the child may constitute grounds for challenging the decision to accept or reject the request for repatriation.
WHAT HAPPENS WHEN THE REPATRIATION APPLICATION IS SUBMITTED AFTER ONE YEAR AFTER THE SUBTRACTION?
The Hague Convention provides that if the request for repatriation is presented one year after the transfer or non-return of the minor, the obligation to order the return ceases if it is demonstrated that the minor has new environment and, therefore, a new further posting would be inappropriate and harmful.
Armando Cecatiello, Lawyer Milan and Rome.
Law Firm Cecatiello, specialized in family law, matrimonial lawyer, divorce lawyer, minor maintenance / custody.