The Italian Court of Cassation on international child abduction
According to the Italian Supreme Court, the parent who does not exercise effectively the rights of custody can not ask for the return of the child.
The Supreme Court of Italy has recently ruled on a case of international abduction, affirming that the national judge can not order the return of the child to the country of habitual residence if the parent who requests the repatriation, does not exercise concretly the right of custody on the child.
The 1980 Hague Convention on the Civil Aspects of International Abduction, is very clear on the point. Indeed, pursuant to art. 3 of the Convention, the removal or retention of a child is wrongful if it is breach of rights of custody, provided that those rights are actually exercised, either jointly or alone, at the time of removal or retention, or would have been so exercised if there were not such circumstances.
Also art. 13 of the Convention, listing the cases in which the court is not bound to order the return of the child, states that the return may be refused if the person, institution or other body which opposes its return can prove that the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention.
These principles were reaffirmed by the judgment of the Italian Supreme Court, which also added that it is sufficient to non-exercise of rights of custody, regardless of the cause or the reasons for not exercising.
If you need legal help for international child abduction in Italy, don't hesitate to contact us (click here).
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Published on 21 April 2015
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