Supreme Court Rulings

The main issues on which the Italian Supreme Court and the various territorial Courts have ruled over the years are three.

1. Which is the habitual residence of the child.

The Convention mandates return of any child who was “habitually resident” in a contracting nation immediately before an action that constitutes a breach of custody or access rights. The Convention does not define the term “habitual residence,” but it is not intended to be a technical term. Instead, courts should broadly read the term in the context of the Convention’s purpose to discourage unilateral removal of a child from that place in which the child lived when removed or retained, which should generally be understood as the child’s “ordinary residence.”

On this issue, please read: Cass. civ. Sez. I, Sentenza, 23-01-2013, n. 1527, Cass. civ. Sez. I, Sent. 16-06-2011, n. 13241; Cass. civ. Sez. I, Sent. 10-06-2011, n. 12740; Cass. civ. Sez. I, Sent. 21-03-2011, n. 6345; Cass. civ. Sez. I, Sent. 21-03-2011, n. 6319; Cass. civ. Sez. I, Sent. 07-01-2011, n. 277; Cass. civ. Sez. I, Sent. 12-01-2010, n. 252.

2. Interpretation of Article 13b: no return in case of “grave risks””

In certain exceptional cases under Article 13b, the court’s mandatory return obligation is changed to a discretionary obligation, specifically, “the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”
Evidence of this has to be provided by the abductor, and they need to comply to the degree required by the applicable standard of proof (generally determined by the lex fori, i.e. the law of the state where the Court is located).

On this issue: Cass. civ. Sez. VI, Ord., 05-10-2011, n. 20365; Cass. civ. Sez. I, Sent., 16-06-2011, n. 13241; Cass. civ. Sez. I, Sent., 23-01-2009, n. 1741; Cass. civ. Sez. I, 15-02-2008, n. 3798; Cass. civ. Sez. I, 31-10-2007, n. 22962.

3. Who, and when, decides whether child has opportunity to be heard ?

This is a very important issue, because, according to Article 13, section 2, “The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views”.

On this issue: Cass. civ. Sez. I, Sentenza, 23-01-2013, n. 1527, Cass. civ. Sez. I, Sent. 11-08-2011, n. 17201; Cass. civ. Sez. I, Sent., 16-06-2011, n. 13241; Cass. civ. Sez. Unite, Sent., 21-10-2009, n. 22238; Cass. civ. Sez. I, 27-05-2008, n. 13829; Cass. civ. Sez. I, 04-07-2003, n. 10577.