PIL instrument(s)

Case number and/or case name

ITF20140331 Tribunal of Milano, decree (BIIa)

Details of the court

Italy, First Instance

Articles referred to by the court

Date of the judgement

30 March 2014

Appeal history

CJEU's case law cited by the court

Summary

The application made, pursuant to Arts. 316 par. 4 and 337-bis of the Italian Civil Code, by an Italian citizen seeking exclusive custody over his daughter retained by his wife in Germany without his consent, her placement at his residence in Italy and limitation of the mother’s right of access (to be exercised only in the Italian territory) is not admissible since it is meant to circumvent the application of the international had hoc rules for international child abduction. On the contrary, jurisdiction over the claim for return of a wrongfully retained child is subject to the rule set by Art. 11 of Regulation (EC) No 2201/2003 of 27 November 2003, which substantially provides for the application of the lex specialis contained in the Hague Convention of 25 October 1980 on the civil aspects of international child abduction to cases of wrongful removal/retention of a child. Hence, an application by the person entitled to rights of custody or rights of access in order to obtain the return of the child shall be made in accordance with Arts. 8-12 of the 1980 Hague Convention. Proceedings under Arts. 316 par. 4 and 337-bis of the Italian Civil Code are admissible only in relation to cases falling outside the scope of application of the abovementioned provisions for the child had been taken to a country which is not party to the 1980 Hague Convention; otherwise, i.e. where the case concerns a State party to such convention, no remedies other than those provided for by Law No 64/1994 (containing the authorisation to ratify and the order to execute the 1980 Hague Convention) are admissible. As to the cases of so called “active abduction” the Italian Central Authority plays a direct role if the child has been taken to a country which is neither party to the 1980 Hague convention nor a EU member State, otherwise retaining only a subsidiary role if the abduction involves States which are either party to the mentioned convention or member of the European Union. In such a situation, child protection is realized through administrative cooperation between Central Authorities and, notably in the case at issue, the German Central Authority by the Federal Ministry of Justice, as Germany has ratified the 1980 Hague Convention.