Summary
The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction requires, even with respect to cases where the rights of custody over a child were jointly conferred to the parents, that the rights falling within the definition of ‘rights of custody’, i.e. the rights relating to the care of the child and, in particular, the right to determine the child’s place of residence, were actually exercised at the time of removal or retention, or would have been so exercised but for the removal or retention. The court shall therefore verify whether the parent alleging the breach of his/her rights of custody was actually exercising such rights, even in case of joint rights. On the other hand, the hearing of the child, which was already provided for by Article 12 of the New York Convention of 24 November 1989 on the Rights of the Child, has become a mandatory requirement in judicial proceedings concerning a child pursuant to Article 6 of the Strasbourg Convention of 25 January 1996 on the Exercise of Children’s Rights. As a consequence, even if the hearing is not required in proceedings for wrongful retention because said proceedings are by their own nature urgent and aimed at restoring the pre-existing situation, such a hearing is generally deemed appropriate – as specifically contemplated by Article 11(2) of Regulation (EC) No 2201/2003 – in order to evaluate the possible objection of the child to his return pursuant to Article 13(2) of the 1980 Hague Convention, unless this appears inappropriate having regard to the age or degree of maturity of the child or, all the more, if it would cause harm to the child.