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International child abduction

International child abduction is a serious violation of the child’s rights, as well as of parental responsibility in relation to the other parent. Italian legislation and international conventions provide tools to allow the return of the minor to the country of habitual residence. It is important to act quickly to protect the well-being of the minor.

International child abduction is a phenomenon that profoundly affects transnational family relations, increasingly common in a globalised world. In many situations, parents come from different countries and, during a family crisis, conflicts may arise that involve the children. Unfortunately, one of the parents may decide to transfer the minor to another State without the consent of the other, breaching custody agreements or legal decisions. These situations highlight not only the emotional and practical difficulties that children face, but also the legal challenges posed by the different rules of the countries involved.

Imagine the case of a mother who, following the separation from her husband, decides to take her child to her country of origin without the consent of the father. The father, remaining in the country of habitual residence of the minor, suddenly finds himself deprived of regular contact with his child and must face an intricate international legal system to bring him back. This scenario is, unfortunately, a reality for many families.

An important question is the impact that unlawful transfer has on the minor themselves. The separation from the parent remaining in the country of origin, the loss of the socio-cultural context and emotional tensions represent a huge burden for a child. Precisely to protect minors from these traumas, the Convenzione dell’Aja insists on the principle of immediate return to the country of habitual residence. However, the actual application of this principle can vary from country to country, further complicating the situation. No less crucial is the right of the minor to maintain relations with both parents, enshrined in the Convenzione sui Diritti dell’Infanzia del 1989.

Boschetti Studio Legale intervenes to simplify this path, offering personalised advice that takes into account the regulations of both States involved. Thanks to our experience in private international law, we are able to address even the most complex cases, such as those involving countries that are not signatories to the Convention.

The Convenzione dell’Aja del 1980

The Convenzione dell’Aja del 1980 represents the principal tool to address cases of international child abduction, establishing rules for the rapid return of the minor and to avoid prolonged emotional and social damage. However, not all countries have ratified this Convention, making a personalised legal approach necessary. Here Boschetti Studio Legale comes into play, offering highly qualified legal assistance in international family law. Our team supports parents in all phases of the process, from the location of the minor to the negotiation with local authorities, ensuring effective management respectful of the superior interest of the child.

For the return of abducted minors, the Convenzione dell’Aja is activated when three fundamental conditions exist:

  • the minor must be under 16 years of age, with interruption of the procedure upon reaching this age even during the proceeding;
  • the States involved (that of original residence and that of destination) must have ratified the Convention and mutually accepted the respective accessions;
  • the applicant must be the actual holder of parental responsibility according to the laws of the country of habitual residence of the minor before the abduction.

In the Italian context, parental responsibility is shared between the parents, who together decide on the habitual residence of the minor according to articolo 316 del Codice Civile. This principle persists even after separation (articolo 337 ter), save for different provisions of the judge. In particular cases, social services or a guardian may be authorised to request the return of the minor.

Based on the Convenzione dell’Aja, the time elapsed from the abduction significantly influences the outcome of the return procedure. If the application is submitted within one year, the judge must order the return of the minor, save for specific exceptions provided by article 13.

After one year, instead, the judge of the State of refuge has the power to deny the return if they find that the minor has integrated into the new environment. For this reason, it is inadvisable to prolong informal mediation attempts, especially after previous failures, since the passing of time could definitively compromise the possibility of obtaining the return of the minor.

Central authorities, appointed by each State adhering to the Convenzione dell’Aja del 1980, are administrative bodies that collaborate to ensure the return of abducted minors. In Italy, the central authority is the Dipartimento per la giustizia minorile e di comunità in Rome, contactable by email, PEC or telephone.

The authorities deal with the location of the minor, facilitate amicable resolution, share information, provide legal support and ensure a safe return. The process can be initiated through the central authority of the country of habitual residence of the minor or, alternatively, the applicant can turn directly to the judicial authorities of the State where the minor is located, as provided by article 29 of the Convention.

Each State independently establishes the specific operational methods of its central authority for the fulfilment of these tasks.

We can sort out your family law matters.

Criminal aspects of international child abduction

International child abduction is not only an act that disrupts family balances, but also represents a violation of legal rules that, in many countries, has criminal relevance. The central element of this offence is the unlawful transfer or retention of a minor in a country other than that of habitual residence, against the will of the parent holding custody rights. Criminal justice comes into play to sanction such conduct and protect the fundamental rights of the child.

Let us imagine a specific case: a father, without the mother’s consent, decides to transfer his child to a foreign country after a legal dispute over custody. This act, in addition to representing a violation of family agreements and national laws, can integrate offences such as abduction of an incapacitated person or kidnapping of a minor, depending on the regulations in force in the country of origin and that of destination. The involvement of criminal justice aims not only at punishing the perpetrator of the offence, but also at ensuring the return of the minor to their habitual context.

International and national rules play a crucial role in these cases. In Italy, for example, the conduct of a parent who removes their minor child from the other parent without their consent, like an incapacitated person, integrates the offence provided by art. 574 del codice penale. Art. 574 bis, more specific to the case at hand, punishes anyone who takes or retains a minor abroad against the will of the parent or guardian, hindering the exercise of parental responsibility, with imprisonment from 1 to 4 years. The penalty is reduced (6 months-3 years) if the minor is over 14 years and consents. If the perpetrator is a parent, the conviction entails the suspension of parental responsibility.

In Italy, therefore, the abduction — including international — of minors is severely punished. Not all countries however apply the same rigour. The disparity in legislation and methods of application represents a significant obstacle to the pursuit of justice. Precisely for this reason, cooperation between States, mediated by tools such as the Convenzione dell’Aja del 1980, becomes fundamental. However, although the mutual recognition of judicial decisions is a cardinal principle in the legal systems that adhere to the Convenzione dell’Aja, the actual enforcement of judgments may encounter difficulties, especially in countries that are not signatories to the Convention.

Another aspect that makes the criminal management of international child abduction complex is the possibility that the perpetrator of the abduction justify themselves with motivations linked to the well-being of the child. For example, in some cases, a parent might argue that the transfer occurred to protect the minor from situations of danger, such as domestic violence.

What is certain is the risk, following a criminal complaint, of suffering retaliations or an escalation of the conflict between the parents. Filing criminal charges against a parent can worsen the situation and negatively affect the well-being of the child. For this reason, Boschetti Studio Legale adopts a balanced approach, that considers both the legal and the emotional needs of the families involved. In cases in which an amicable agreement is possible, we work to facilitate a mediation that respects the rights of all parties, with the primary objective of protecting the superior interest of the minor.

Through our experience and competence, we are committed to providing not only high-level legal assistance, but also human and personalised support to help families to overcome these difficult moments. Contacting our firm means having access to comprehensive advice, that covers every aspect of the problem, from legal management to emotional support, with one single objective: to ensure the protection and well-being of the minor.

Procedure for the return of the minor

The procedure for the return of the abducted minor is the operational heart of the Convenzione dell’Aja del 1980, which obviously applies only to the States that have adhered, namely:

Albania, Andorra, Argentina, Armenia, Australia, Austria, Bahamas, Belarus, Belgium, Belize, Bosnia and Herzegovina, Brazil, Bulgaria, Burkina Faso, Canada, Chile, China (only Hong Kong and Macao), Cyprus, Colombia, South Korea, Costa Rica, Croatia, Denmark, Ecuador, El Salvador, Estonia, Russian Federation, Fiji, Finland, France, Georgia, Germany, Japan, Greece, Guatemala, Honduras, Ireland, Iceland, Israel, Kazakhstan, Latvia, Lithuania, Luxembourg, Macedonia, Malta, Morocco, Mauritius, Mexico, Monaco, Montenegro, Nicaragua, Norway, New Zealand, Netherlands, Panama, Paraguay, Peru, Poland, Portugal, United Kingdom, Czech Republic, Dominican Republic, Republic of Moldova, Romania, San Marino, Saint Kitts and Nevis, Serbia, Seychelles, Singapore, Slovakia, Slovenia, Spain, Sri Lanka, South Africa, Sweden, Switzerland, Thailand, Trinidad and Tobago, Turkey, Turkmenistan, Ukraine, Hungary, Uruguay, U.S.A., Uzbekistan, Venezuela, Zimbabwe.

The Convenzione dell’Aja del 1980 allows the urgent repatriation of minors under 16 unlawfully transferred abroad. Parents, guardians or entities holding custody rights can request the return of the minor through the Central Authorities, which provide free assistance, or turn directly to the courts of the country where the minor is located.

For the applicability of the Convention, it is necessary that both countries involved (that of habitual residence and that of refuge) are members of the EU or have adhered to the Convention with mutual recognition. In Italy, return applications are handled by the territorially competent Tribunali per i minorenni, which must decide within six weeks. The right of appeal depends on the legislation of the State where the case is dealt with and may provide for different phases (appeal, Cassation).

If the application is submitted within one year of the abduction, the judge must generally order the return of the minor, but only after ascertaining:

  • that the minor is under 16 years of age;
  • that the minor habitually resided in the requesting State before the abduction;
  • that the person requesting the return is the holder and effectively exercised parental responsibility, including the right to decide where the minor must live;
  • that the abduction occurred without the consent of such person;
  • that the time elapsed from the abduction is less than one year, with the obligation to verify, if longer, the degree of integration of the minor in the new environment.

If the return order is not respected, it can be enforced forcibly in the foreign country.

The duration of the procedures for international child abduction varies between States, depending on the adoption of special rules or the application of ordinary procedural rules. Although the Convention and Regolamento CE 2201/2003 provide for a term of six weeks for the first instance, this limit is often exceeded. The overall procedure can be further extended in case of appeal, even when the first instance decision was issued within the prescribed terms. In addition, the duration also depends on the presence or otherwise of special procedural rules for cases of abduction.

When a minor is unlawfully transferred to a State that is not a party to the Convenzione dell’Aja del 1980, or whose accession has not been accepted by Italy, it is not possible to use the cooperation tools provided by the Convention. In these cases, the parent must initiate ordinary proceedings in the country of habitual residence of the minor and subsequently request the recognition of the decision before the foreign authorities. In addition, they must autonomously activate themselves in the State where the minor is located, instructing a local lawyer to start the administrative or judicial procedures provided by that State. This procedure proves significantly longer and more expensive than that provided by the Convention.

The Italian Central Authority offers free assistance for return procedures. Applications, accompanied by the necessary documentation translated into Italian, can also be sent in electronic format. Detailed information is available on the website of the Ministero della Giustizia or by directly contacting the Central Authority by email. Central authorities cannot interfere with judicial decisions or accelerate procedural times.

A critical aspect is to demonstrate what is the State of habitual residence of the minor. This concept, which will be discussed in the following paragraph, although central, is not clearly defined in the Convention and requires the presentation of evidence such as school certificates, medical documents or testimonies that show a stable bond with the place of origin.

The opinion of the minor is another crucial element. The Convention provides that, if the child has reached a certain maturity, their wish must be heard. This can influence the result, especially if the minor expresses the wish to remain in the new country. In these cases, it is fundamental to build a legal strategy that takes into account such preferences, without losing sight of the general well-being of the child.

Even after a decision favourable to the return, the enforcement can represent a problem. Often, the abducting parent attempts to obstruct the process, delaying the implementation of the return order. Boschetti Studio Legale also offers assistance in this phase, collaborating with local authorities to ensure that the judgment is enforced rapidly.

Relying on Boschetti Studio Legale means having at one’s side an experienced team, that addresses every phase of the process with competence and humanity, placing the well-being of the child at the centre.

The habitual residence of the minor

International child abduction represents one of the most traumatic experiences that a child and their family can face. In an increasingly globalised world, where mixed marriages are continuously increasing, this phenomenon requires particular attention and specific competences.

When an international couple faces a crisis, the risk of abduction of children significantly increases. Prevention becomes crucial precisely in this delicate phase, where emotions can cloud the judgment of the parents.

Boschetti Studio Legale offers targeted preventive intervention through:

  • Negotiation of detailed agreements on the habitual residence of the minor
  • Preparation of legal guarantees for travel abroad
  • Implementation of communication protocols between parents
  • Clear definition of cross-border visiting rights
  • Assistance in international family mediation

In addition, it is recalled that in Italy one can request a judicial measure to prohibit the expatriation of the minor without the consent of both parents: the judge can issue an expatriation prohibition for the minor or order the withdrawal of the passport when there is a concrete danger of abduction of the minor by one of the parents. This measure can be requested in the context of separation, divorce or proceedings relating to custody of the children.

Our experience teaches us that timeliness is fundamental. Intervening preventively during the crisis allows avoiding impulsive decisions harmful to the minor, keeping dialogue between the parents open, so as to ensure the continuity of family relations and to protect the superior interest of the child. It is therefore fundamental not to wait for the situation to degenerate. Rely on the competence of Boschetti Studio Legale to protect your children through concrete and personalised legal solutions.

We can sort out your family law matters.

Exceptions to the return of the minor

Although the Convenzione dell’Aja del 1980 establishes the general principle of the immediate return of the minor, there are specific situations in which the return is not ordered. These exceptions are designed to ensure that the superior interest of the minor is always protected, avoiding that the return may cause greater damage than the abduction itself.

An emblematic case concerns a child abducted and taken to another country by a parent who claims to have acted to protect them from a violent domestic environment. In these cases, the Convention provides that the return can be refused if there is a well-founded risk that the minor, once returned, is exposed to serious physical or psychological dangers or finds themselves in an intolerable situation (article 13, letter b). This exception is among the most used in courts, but requires solid evidence from the parent who opposes the return. Therefore, if concrete evidence emerges that the return to the State of habitual residence would expose the minor to significant physical or psychological risks, or would put them in an intolerable situation, the judge can refuse the return. This includes cases of documented mistreatment or other circumstances that could seriously compromise the well-being of the minor. The assessment of these risks must be based on objective and verifiable elements.

Another common scenario concerns the integration of the minor in the new environment. If the return is requested beyond one year from the abduction, and the child has adapted to the new social and family reality, the judge can decide not to proceed with the return. For example, a minor who has regularly attended school, built stable friendships and developed cultural ties in the country of transfer can be considered too rooted to face uprooting again. It must however be specified that the judge assesses the degree of integration of the minor in the new environment only if the return is requested beyond one year from the abduction.

A further obstacle reason is the express or implicit consent of the parent remaining in the country of origin. If it is demonstrated that the latter initially accepted the transfer or acted in such a way as to make it appear consenting, the return of the minor could be denied. This consent invalidates the unlawful nature of the abduction.

It is important to underline that these exceptions must be interpreted restrictively so as not to nullify the purpose of the Convention, which aims to discourage international child abductions and to ensure the rapid return of the minor to their habitual environment. The judge must carefully balance these factors with the superior interest of the minor, fundamental principle in matters of juvenile law.

The decision of the judge must be taken considering all the circumstances of the specific case, assessing the evidence presented by both parties and, if necessary, acquiring the opinion of qualified experts, especially when it comes to assessing the risks for the well-being of the minor or the maturity necessary to consider their opposition to the return.

The opinion of the minor is another crucial variable. If the child has reached sufficient age and maturity, the judge must hear their opinion. Let us imagine a 13-year-old adolescent who, after spending a significant period in another country, opposes the return. In these cases, the will of the minor can affect the final decision, provided that the judge considers that such opposition is authentic and well-motivated. If the minor expresses clear opposition to the return, the judge must assess their maturity and capacity to understand the situation. A simple preference is not sufficient: the opposition must be motivated and consistent with the degree of psychological development of the minor. The weight given to the opinion of the minor increases proportionally to their age and maturity.

Boschetti Studio Legale helps parents to overcome these complexities, offering effective representation in court and gathering the necessary evidence to address the exceptions. Our experience allows us to anticipate the difficulties and prepare targeted strategies to ensure the best possible result, always respecting the superior interest of the minor. It is fundamental to clarify, before undertaking any initiative whatsoever, all the circumstances and to document every action taken during the abduction, to avoid the parent who suffered the transfer being accused of having consented.

Prevention of international child abduction

In 2017, an emblematic case highlighted the complexity of the concept of habitual residence of the minor in the international context. An Italian-Greek couple had agreed that the wife would give birth in Athens, with the understanding of returning subsequently to Italy. However, after the birth of the child in February 2016, the mother decided to remain in Greece. The father, having filed an application for divorce in Italy, was denied jurisdiction on parental responsibility matters since the minor had always lived in Hellenic territory. This case highlights how habitual residence represents a fundamental element in the resolution of international disputes regarding minors.

The definition of habitual residence has undergone significant evolution over time. Initially, neither the Convenzione de L’Aja del 1980 nor EU regulation n. 2201/2003 provided a precise definition of this concept. It was only in 2009 that the Court of Justice of the European Communities, with judgment C-523/07, outlined the first concrete interpretative criteria.

The approach to habitual residence has developed along two main lines: quantitative and qualitative. The quantitative elements include the duration and continuity of stay in a given territory, while the qualitative ones consider the integration of the minor in the social environment, their school path and family relations. In the case of newborns or very young children, as established by the most recent case law, the family environment becomes the predominant element, being determined mainly by the reference figures who care for the minor.

International case law has applied these principles in different ways. In Australia, a significant case concerned a child who had lived between several continents in their first years of life. The Australian court had to consider periods of residence in Turkey, South Africa and Australia, concluding that the determining element was the constant presence of the mother as a reference point for the minor. In the United Kingdom, the Supreme Court emphasised the importance of social integration over the initial intentions of the parents, as demonstrated in a case of two children who had moved from France to Scotland.

Jurisprudential evolution has led to considering habitual residence as an autonomous concept of EU law, interpreted in light of the superior interest of the minor and the principle of proximity. The Italian Corte di Cassazione has embraced this interpretation, defining habitual residence as the place where the minor finds the centre of their affective ties through stable and continuous stay.

Despite these developments, concerns remain regarding the risk of divergent interpretations between the various Member States, that could favour forum shopping. Some scholars suggest establishing a closed list of indicators, a proposal however expressly rejected by the Court of Justice which prefers to maintain a certain interpretative flexibility to adapt to the peculiarities of each individual case.

In this complex context, an international law firm specialised in family law such as Boschetti Studio Legale can provide fundamental support in identifying the habitual residence of the minor. Our team can conduct in-depth analysis gathering documentary evidence relating to the integration of the minor (school certificates, enrolments in extracurricular activities, medical documentation), interviewing key witnesses such as teachers or neighbours, and documenting in detail the daily routine of the child. In addition, our lawyers can analyse the specific case law of the country in question, identifying relevant precedents that could influence the interpretation of habitual residence in the specific case. This professional assistance proves particularly valuable in cases involving multiple jurisdictions, where multilingual competence and in-depth knowledge of the different legal systems can make the difference in the outcome of the proceeding.

Typical scenarios / Case studies

The typical scenarios have been developed by combining the most significant family law cases that the firm routinely handles, with the aim of creating a structured and complex case study to help readers navigate the handling of their own personal cases. The case studies, on the other hand, illustrate individual cases that have actually been handled by the firm, with data and details anonymised to ensure client confidentiality.

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    Legal advice on international child abduction

    Boschetti Studio Legale offers complete support in cases of international child abduction, starting from preventive advice for international couples up to the management of return procedures. In cases falling within the Convenzione dell’Aja, we guide clients through every phase of the process, from the preparation of the necessary documentation to the interaction with the Central Authorities. For countries not adhering to the Convention, we activate our network of international professionals to ensure effective protection of our clients’ rights.

    The experience of our team of lawyers in international family law allows us to provide specific advice on crucial questions such as the determination of habitual residence, exceptions to the return and cross-border visiting rights. In case of criminal proceedings linked to the abduction, we carefully assess with the client the opportunity to file charges, through the criminal lawyers of our team, considering first of all the impact on the well-being of the minor.

    Our approach gives priority, when possible, to international family mediation to reach amicable agreements that protect the superior interest of the minor. Timeliness is fundamental: an immediate and professional intervention can make the difference in the outcome of the matter. Contact us for personalised advice that takes into account the specifics of your case and the jurisdictions involved.

    Do not hesitate to contact Boschetti Studio Legale to receive the right information on how to adopt a child in Italy, what are the requirements to adopt a child in Italy and how to start the procedure to adopt a child. Adoptions, both national and international, are a path of great responsibility and love, that requires the right legal support.

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      Location

      Via dei Gracchi, 151
      00192 Rome – Italy

      Contact

      info@familylawboschetti.com
      Phone: + 39 – 06 889 21971

      Opening hours

      By appointment only
      Days: Monday – Friday
      Opening hours: 9.00–13.00 / 16.00–20.00

      When is the offence of international child abduction committed?

      The offence of international child abduction is committed when a parent takes or retains their child abroad without the consent of the other parent, preventing them from exercising their right to parental responsibility. In Italy, this offence is punished with imprisonment from one to four years according to articolo 574-bis del codice penale. The penalty is reduced if the minor is over 14 years of age and has given their consent.

      What is meant by minors?

      In general, minors are those who have not reached 18 years of age. For international abduction, instead, those under 16 years of age are considered minors. This limit is established by the Convenzione dell'Aja del 1980, which deals specifically with these cases. It is important to note that if during the return procedure the minor reaches 16 years of age, the proceeding is automatically interrupted since the Convention is no longer applicable.

      What is meant by central authority?

      The central authority is the government office that handles cases of international child abduction. In Italy it is the Dipartimento per la giustizia minorile of the Ministero della Giustizia in Rome. This office helps free of charge to locate abducted minors, facilitates agreements between parents and coordinates return procedures with the authorities of other countries.

      What should I do if my child has been taken abroad?

      If your child has been taken abroad without your consent, you must immediately contact the Italian central authority at the Ministero della Giustizia and consult a lawyer specialised in international family law. You can also file a complaint with the police, but thinking carefully about the consequences on family balances and on the minor. If the country where the child is located has signed the Convenzione dell'Aja, the central authority will help you free of charge to activate the procedures for their return.