Summary
Pursuant to Art. 10 of Regulation (EC) No 2201/2003 of 27 November 2003, Italian courts have jurisdiction over the action brought under Art. 317-bis of the Italian Civil Code by the father of a 6-month and a 2-year old children seeking the exclusive custody over them and their return in Italy, if at the time of the application a period of less than one year has elapsed from the date of their transfer in Portugal together with their mother for a stay that, as to the parents’ agreement, would had to be temporary, because the “habitual residence” of a child is a fact-based concept corresponding with the place where the child has, by virtue of a stable and permanent presence, even de facto, the centre of the relationships established (not only with relatives) by way of his/her daily social life. The assessment of the habitual residence of a child is to be made by lower courts and may be subject to appeal before the Supreme Court of Cassation only if not supported by fair and logic reasoning (in the case at issue the Supreme Court of Cassation found the judgment of the Court of Appeal fairly and logically reasoned since, having ascertained that the mother took the two children to Portugal without the father’s consent, correctly considered the woman’s subsequent refusal to return the children as international children abduction, thus applying Art. 10 of Regulation (EC) No 2201/2003).