Summary
Pursuant to Article 2(9) and (11) of Regulation (EC) No 2201/2003, both parents have the right to participate to any decision concerning the place of residence of the children even if they temporarily do not live together, provided that they both have parental responsibility and jointly exercise the rights of custody by operation of law, agreement or judgment. Any change of the habitual residence of the children from Germany to Italy that is unilaterally made by the parent who is exercising the rights of joint custody and by whom the children are located pursuant to Italian and German law, to an agreement between the spouses (who are de facto separated) and to a judgment of German courts, constitutes a wrongful removal of the children in light of the aforesaid Regulation. With regard to the procedure for the hearing of the children, only the statements rendered in proceedings before judicial authorities can be considered. The use of statements made by the children and recorded by one of the parents on an audiovisual support (CD/DVD) constitutes a manifest violation of the provisions of Conventions regulating the hearing of children, and particularly of Article 12 of the New York Convention of 20 November 1989 and of Article 10 of the Strasbourg Convention of 25 January 1996 on the Exercise of Children’s Rights, since there is no guarantee whatsoever as to the manner in which said statements have been obtained and there are serious doubts as to their genuineness. Moreover, as said statements have not been integrated with the testimony of third parties pursuant to Article 2702 of the Civil Code, they do not constitute written testimony allowed by Law No 69/2009 and, in any case, no evidence has been given that the father has given his consent to the same.
Pursuant to Article 20 of Regulation (EC) No 2201/2003, Italian courts, which are requested to adopt provisional measures aimed at allowing the return of the children in Germany to occur in the most appropriate manner (as it will be determined by the public prosecutor and the Central authority) may order that the children are placed in an appropriate educational community, that immediate psychological support is made available to them and that the parents visiting rights are determined on equal footing.