The Court of Cassation: What Are The Prerequisites for International Child Abduction?

The Supreme Court emphasized that the obligation to return the minor to the State of habitual residence is preliminary to any ruling on custody.

The Court of Cassation, with ruling no. 3924/2024, addressed the issue of international child abduction, specifying that the obligation to return the minor to the State of habitual residence is preliminary to any ruling on custody to one parent or the other.

The issue concerns an Italian mother who had brought her son, born in Denmark with a Danish father, to Italy. Subsequently, at the request of the Milan court, the mother had taken him back to Denmark where the minor had been exclusively given to her by the Danish court.

From this, the declaration of cessation of the subject matter of the dispute followed.

The Court has established that there is no longer a need for the mother to challenge a decision she did not agree with (issued by the Court of Milan which ordered the immediate return to Denmark), given that in the meantime the conditions of custody of the minor have changed, “because the Danish judge has assigned the child to her, who therefore has the power not to take him to Denmark anymore, being able to legally reside with the minor in Italy, in her full custody, thus the minor judge has rendered the order ineffective, which the Italian judge of the merits of the Hague Convention had instead adhered to, that order having become ineffective in the current situation.”

The Hague Convention of October 25, 1980, is aimed at safeguarding the minor against the harmful consequences resulting from their unlawful transfer or failure to return, in the place where they carry out their usual daily life, on the assumption of protecting their superior interest in maintaining interpersonal relationships that are part of their world and constitute their identity.

Therefore, it ignores the existence of a legal custody title, which serves only to protect custody as a factual situation, and reinstates custody upon the minor’s immediate return to their country of habitual residence. This is done on the assumption that the minor’s best interests coincide with their being left in their current location and not being taken away from it.

Based on these principles, “it must be considered that the matter has become moot regarding the execution of the ‘order to transfer the minor back to the place of habitual residence from which they were taken’, so much so that the minor has now been returned to the mother, the exclusive custodian of the minor by virtue of a ruling by the Danish judge, which became final in April 2022, and the minor has returned to Italy again with the mother, since December 2022.”

In the context of the procedure for international child abduction, dictated by the Hague Convention of 1980, the – urgent – measure to be issued is solely aimed at ensuring the immediate return of the abducted child to the parent who was actually exercising custody rights and the child’s return to the State of their habitual residence, with the sole purpose of restoring the factual situation.

The determination of the unlawfulness of the abduction is therefore solely preliminary and instrumental to the return order and cannot have any independent significance.

Finally, the illegitimacy of the mother’s behavior could not affect the provisions regarding custody and guardianship, as those have now become definitive.

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