Decision of the Court of Cassation, I Civil Section, No. 5237 of 5 March 2014

With the judgment, the Court of Cassation decided on a case concerning the abduction by the father of a child resident in the United States in the mother’s custody. Since the child had expressed her wish to stay in Italy, and the competent lower court had recognized that her age and discernment were such to justify the respect for her opinion, the Court of Cassation deemed that there was room to refuse the return of the child in the U.S. This decision is grounded on the principle of hearing the child contained in the UN Convention on the Rights of the Child and the European Convention on the exercise of Children Rights, which is also a principle of the Italian legal order, recently strengthened by law No. 219 of 2012 and new Article 315 bis of the civil code. The Court further noted that, as a general rule, in such circumstances the judiciary may refuse to order the return of a child also in the light of Article 13.2 of the Hague Convention on the Civil Aspects of International Child Abduction.