The Italian Supreme Court on International Child Abduction and Habitual Residence of an Infant

Last week (2 November 2022), the Italian Supreme Court (Corte di Cassazione) delivered the judgment No 32194/2022. The case in dispute raised mainly two questions: (i) whether there had been, under the 1980 Hague Convention on the Civil Aspects of International Child Abduction and Regulation (EU) No 2201/2003, a wrongful removal of an infant born in Spain in August 2021 and transferred to Italy by the mother three months later; and (ii) where was the infant’s habitual residence at the time at which the Italian authorities had been seised.

The first instance territorial Court (Tribunale per i minorenni di Sassari) ruled in favour of the infant’s father and found that there had been a wrongful removal, on the ground that the infant was born in Spain and that he/she lived in Spain for the first three months of hir/her life with the mother, while having regular contact with the father.

In overturning the decision of the territorial Court, the Supreme Court underlines the importance of the infant’s young age (less than eight months old, at the time at which the application was made) and of the intention and social connections of the caring parent (the mother) in ascertaining his/her habitual residence. The Supreme Court points out that the links of the infant and his/her mother might have been weaker that those relating to Italy: she arrived in Spain as Erasmus student; she never worked in Spain and didn’t make any significant social connection there, other than her relationship with the infant’s father; the infant was born preterm in Spain even if she was followed by an Italian gynaecologist; she lived with the father only for one month after the infant’s birth; she lived alone with her child for the following two months in a rented apartment, until, when the infant was three months old, she and her child relocate to Italy, where she currently works and live, close to her family.

Moreover, in delivering the judgment, the Court declared the following law principle: “in matters of international child abduction, when an infant, who does not attend school, during the first months of his or her life… is actually taken into the care by the mother, in a Member State other than that in which the father habitually resides, for the purposes of identifying the infant’s ʻhabitual residenceʼ, a constitutive element of abduction, reference must be made to the infant’s social and family environment and to the circle of persons on whom the infant is dependent and with whom he/she necessarily lives… For the purposes of determining that habitual residence, account must be taken, on the one hand, of the regularity, conditions and reasons for the parent’s previous residence in the territory of the first Member State and, on the other, of the family and social relations actually entertained by her and the infant, cohabiting with her, in that Member State, by ascertaining whether, at the time the court was seised the mother and the infant, dependent on her, were present on a stable basis in the territory of that State and whether, having regard to its duration, continuity, conditions and reasons, that residence denotes appreciable integration of that parent into a social environment, thus shared with the child…”.

The text of the judgment is available here.

On the topics addressed by the judgment, the readers of RDIPP may refer to:

Gabriella Carella, 1994, No 4, 777 ff.;
Marco Mellone, 2010, No 3, 685 ff.;
Sara Tonolo, 2011, No 1, 81 ff.;
Laura Carpaneto, 2011, No 2, 361 ff.;
Costanza Honorati, 2013, No 1, 5 ff.;
Laura Carpaneto, 2014, No 4, 931 ff.;
Costanza Honorati, 2015, 2, 275 ff.;
Costanza Honorati, 2020, 4, 796 ff.;
Curzio Fossati, 2022, No 2, 283 ff.

Moreover, see, in our Book Series:

Maria Caterina Baruffi, Book No 62;
Stefania Bariatti, Ilaria Viarengo, Francesca C. Villata (eds.), Book No 81.