Summary
Pursuant to Article 10 of Regulation (EC) No 2201/2003, in case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction on questions regarding the custody of the child until the child has acquired a habitual residence in another Member State. Based on Recital No 12 of Regulation (EC) No 2201/2003, which sets out the prevailing importance of the best interests of the child, in particular of the criterion of proximity, the concept of habitual residence does not necessarily imply a particular intention (animus) of the child, since it directly refers to a question of fact and therefore to the country where the child, based on a constant and enduring stay, has the centre of his affective relationships, including, but not limited to, the relationship with his parents, as they arise from his everyday life in said place.
Article 20 of Regulation (EC) No 2201/2003 allows the courts of a Member State to take a provisional and urgent measure in matters of parental responsibility aimed at granting to one of the parents the custody of the child who is in the territory of said State if the courts of another Member State, which have jurisdiction to hear the substance of the dispute on custody rights pursuant to said EC Regulation, have already issued a decision that provisionally grants the custody of the child to the other parent and said decision has been declared enforceable in the territory of the first Member State. When the practical means for the exercise of the rights of access have not been exhaustively regulated by the decision issued by the judicial authorities of the Member State having jurisdiction as to the substance of the matter, it is for the Italian probate courts (giudice tutelare) to determine such measures, provided that the essential principles laid down by said decision are complied with.