Summary
As far as decisions on parental responsibility are concerned, the relocation abroad or the failure to procure the return in Italy of the children of a separated couple does not qualify as wrongful removal if it has been carried out by the parent having custody over the children. Accordingly, the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction does not apply.
Pursuant to Article 9 of Regulation (EC) No 2201/2003, Italian courts have jurisdiction over an action concerning the rights of access to the children that has been brought within three months from the lawful removal abroad of said children.
Pursuant to Article 10 of Regulation (EC) No 2201/2003, Italian courts have jurisdiction over matters relating to children who have been brought to Finland by the parent having custody over them, in breach of the separation agreement whereby the spouses excluded that the place of residence of the children – which was agreed to be in Italy – could be changed. Such jurisdiction shall be granted until more than a year has lapsed since the date on which the parent entitled to request the restoration of the rights of access or the return of the children has had knowledge that their residence had been moved abroad and has acted to enforce his/her right.
Pursuant to Article 6 of the Strasbourg Convention of 25 January 1996 on the Exercise of Children’s Rights and to Article 155-sexies of the Civil Code, a child shall be heard in the proceedings concerning his/her custody, unless this would be manifestly contrary to his/her best interests or he/she does not have sufficient understanding. The absence of the latter requirement shall in any case be evaluated and reasoned in order to justify the fact that the child has not been heard.