Buscador de jurisprudencia

The parents married in 2014. They had a child in 2017 who was an Italian citizen and had lived in Italy all of his life. 

Around 2018 the parents’ relationship deteriorated and became extremely acrimonious and hostile. Due to the high level of conflict and concerns about the child’s welfare, a court order of July 2023 placed the child in the care of the Social Services of Naples, suspending parental responsibility of each parent.

It was agreed that the child would live with the Father between July 2023 and January 2024. In December 2023 a psychologist’s report stated that the child was being psychologically conditioned against the Mother and her family. In January 2024 a further court order stated that the child was to live with his maternal aunt and uncle. 

On 30 January 2024, the Father removed the child from Italy. 

In May 2024 the Social Services of Naples filed an application under the 1980 Hague Abduction Convention for the return of the child to Italy.

The Father argued that the removal or retention was not wrongful within the meaning of Article 3, that the child was settled in the UK within the meaning of Article 12, that the child was now habitually resident in the UK, and that there was a grave risk of harm/intolerability on return to Italy under Article 13(1)(b).

Return ordered. The Social Services of Naples had rights of custody and removal of the child from Italy was wrongful. 

Rights of Custody - Art. 3

The Social Services of Naples had rights of custody over the child. Therefore the Father’s rights of custody were irrelevant to the decision as to whether removing the child was wrongful as the Father had done so unilaterally, without the consent of the Social Services of Naples. In doing so, the Father was in breach of the Social Services of Naples's rights of custody under the Convention and removal was wrongful.

Settlement of the Child - Art. 12(2)

Proceedings commenced within a few months of the date of wrongful removal (a period significantly less than one year), and therefore there was no exception to a summary return on the basis of settlement.

Habitual Residence - Art. 3

Prior to January 2024, the child had never been to the UK. Whilst it was possible in principle for a child to acquire habitual residence in a single day, in the present case there was no evidence of the requisite degree of integration.

Grave Risk - Art. 13(1)(b)

The Father argued that a return to Italy whereby the child was placed with his maternal relatives would expose him to a grave risk of psychological harm and/or an  intolerable situation. The Father also alleged that placing a child in a community or children’s home can give rise to institutional psychological/emotional harm.

The Court found that, even with these allegations taken at their highest, there was no grave risk of harm within the meaning of Article 13(1)(b). Furthermore, even if there were such a risk, the Social Services of Naples had put in place appropriate protective measures.