International Child Abduction

The phenomenon of international child abduction is one of the most traumatic and psychologically devastating events for a parent, who literally sees their child torn away by an ex-partner and taken to a country far from their own.

This is the best-case scenario, because in some instances it is not even possible to identify the exact address where the child has been taken, and all contact is completely lost, including by phone, leaving the parent without any news of the child for long periods of time.

These situations generally arise from highly conflictual separations and divorces, particularly with regard to custody of minor children, where—believing they are harming the former partner—one parent decides to take the couple’s minor child with them.

It is precisely within this climate of tension and intense hostility that one of the parents, usually the custodial parent of foreign origin, decides to take the child away, furtively removing the child from the other parent or doing so without their consent.

This is a rapidly growing phenomenon, directly linked to the increased number of mixed couples, driven by migration from poorer countries to more economically developed ones, as well as by the greater freedom of movement afforded to individuals.

The most dramatic cases are undoubtedly those in which the child is taken to non-European Union countries, for example to North African states that have not adhered to the Hague Convention, such as Egypt, Tunisia, Morocco, and Algeria, where cultural, religious, and linguistic differences also represent obstacles to communication.

However, in such cases, international cooperation between states—particularly those adhering to the 1990 Hague Convention on the protection of minors—provides assistance.

A Growing Phenomenon According to ISTAT

According to the most recent statistical surveys on international child abduction, a worrying figure emerges. Every year in Italy approximately 25,000 new marriages are formed between Italians and foreign nationals, and a similarly high number concerns de facto couples.

Children are very often born from these unions and become the object of dispute as soon as the relationship enters into crisis.

Indeed, according to estimates, a very high percentage of these unions—around 70%—break down within a short period of time.

As a result, the foreign parent, deciding to return to their country of origin, takes the child of that union with them, often unlawfully, thereby engaging in conduct that constitutes a criminal offence punishable under the Italian legal system.

Not only the removal of the child, but also the retention of the child without the other parent’s consent constitutes a criminal offence, as it prevents the parent from exercising their rights of care and education with respect to the child unlawfully kept abroad.

The Offence of Removal and Retention Abroad in Protection of the Family Interest

International child abduction occurs when a child who is habitually resident in one state is taken to another state against the wishes of the parent exercising parental authority—now more accurately defined as parental responsibility.

This does not merely involve the loss of physical contact, but also entails a compromise and reduction of the other parent’s prerogative to care for their child.

Article 574-bis of the Italian Criminal Code punishes the conduct of anyone who removes a minor from the parent exercising parental authority or from the guardian by taking or retaining the child abroad against that person’s will, thereby preventing them, in whole or in part, from exercising parental responsibility.

This is clearly an offence against the family, as it infringes not only the rights of the parent deprived of the exercise of parental authority, but also the child’s right to continue living and growing according to the values and guidance of both parents.

Punishable conduct includes not only the removal of the child taken abroad without the express or tacit consent of the other parent, but also the retention of the child in a foreign state beyond the agreed period and, in any event, against the will of the other parent residing in a different state.

The offence therefore primarily aims to safeguard the best interests of the child, as well as the broader social interest in ensuring a balanced exercise of parental prerogatives.

It is a continuing offence, as the obstruction of parental authority must persist for a significant period of time.

The subjective element required is general intent, consisting in the awareness and will of one parent to remove or retain the child abroad against the will of the other parent. The offender must be aware that their conduct is unlawful and intended to maintain exclusive control over the child against the wishes of the other parent.

As for penalties, the offence of removal and retention of a minor abroad is punishable by imprisonment from one to four years.

The Psychological Element of the Offence and the State of Necessity

From a defence perspective, once charged with the removal and retention of a minor abroad, a criminal defence lawyer may first focus on the absence of the subjective element on the part of the alleged offender of foreign nationality, coming from a state with a legal system very different from the Italian one.

The defence may highlight the defendant’s personal circumstances, including ignorance of the Italian custody system.

For example, there have been cases in which a minor was placed in a residential community. In such situations, defence counsel may demonstrate that their client had no interaction with either the guardian or social services and had never been informed of the decision to place the child in a community.

As a result, the defendant did not fully understand the role of these entities and was unaware that taking the child with them constituted unlawful conduct.

In the more frequent case where two foreign parents separate and the children are taken by the foreign parent and brought abroad to the custodial parent’s home, the defence may still show that the offender’s intention was not to deprive the other parent of parental authority, but rather to care for the children as best as possible, with the conduct aimed at ensuring family reunification, often with the mother.

Thus, the psychological element of the offence is entirely lacking, as the offender was not driven by the will or awareness to deny the other parent the exercise of parental authority or to prevent them from caring for the child.

A second defence argument that may be raised during the investigative phase or at trial concerns the necessity for the foreign parent to take the minor child with them due to violent or harassing behavior by the other parent, requiring expatriation for reasons of force majeure, determined by the need to safeguard the child’s safety and well-being.

Maintaining Contact Between Parent and Child

It may also occur that the foreign parent, despite having taken the child to their country of origin, did not prevent the other parent from exercising parental authority. The defence may show that return visits were regularly organized to allow the other parent to see the child, that the parent was never kept in the dark about matters concerning the child’s life, and that continuous contact was facilitated through phone calls or video calls.

The Italian parent was therefore immediately informed of the residence or contact details of the child taken abroad, confirming full freedom of visitation whenever the child and the parent remaining in Italy wished to meet again.

When International Child Abduction Occurs

From a jurisprudential standpoint, reference is made to a recent judgment of the Italian Supreme Court of Cassation, Sixth Criminal Section, no. 12037/14, which held that a European arrest warrant issued by a judicial authority of a Member State against a parent deemed responsible for abducting minor children and who arrived in Italy could not be executed by Italian judicial authorities, as part of the unlawful conduct had been committed in Italy.

In another ruling by the Supreme Court of Cassation, Sixth Criminal Section, judgment no. 17679 of 28 April 2016, it was held that the offence of international child abduction is committed by a parent who decides to move to a foreign state without allowing the other parent to visit, regardless of the fact that the foreign parent later obtained sole custody.

With regard to grounds of justification, reference is made to Supreme Court of Cassation, Sixth Criminal Section, judgment no. 51050 of 29 December 2015, which found a Romanian mother criminally liable for international child abduction after taking her two minor daughters—temporarily placed in a community facility—abroad, despite claiming necessity to prevent abuse by the father. In that case, the justification put forward by the defendant was not upheld.

Furthermore, in a more recent ruling, the Supreme Court, Sixth Criminal Section, judgment no. 10953 of 7 March 2017, clarified that the crisis of an unmarried parental couple (a de facto couple) does not lead to the cessation of parental responsibility, which rests with both parents. In this case, the mother who removed the minor child from the father by taking him to Ukraine without his consent was found guilty, even though the father had signed consent for the child’s registration in the mother’s passport.

Procedure for the Child’s Return

When one parent suspects that the other has taken the minor child to a foreign state against their will, the procedure established by the Ministry of Justice is activated to prevent or remedy such conduct. This includes, first and foremost, refusing or revoking authorization for the issuance of travel documents for the minor.

In such cases, the foreign parent may immediately contest the alleged removal of the child from the supervision of the other parent, who was fully aware of the transfer of residence by their former partner.