Giambrone's Family Team Represents Respondent Wife In Complex International Child Abduction Case At English High Court

Giambrone’s Family Team represents the respondent wife in a complex international child abduction case before the English High Court in England which raises a novel point of law concerning the validity of the Assisted Negotiation Agreements introduced in Italian matrimonial proceedings by Law 162/2014 and its interpretation in light of the principles set out in the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

This instant case concerns an Italian father and a Romanian mother, both resident in Italy, who seized the jurisdiction of the Divisional Court in Milan in relation to their divorce and ancillary relief proceedings. Joint custody of their only child, a minor, was agreed. Subsequently, in June 2015 the parties entered into an Assisted Negotiation Agreement, amending the terms of the divorce judgment whereby the mother decided to relocate to England on a permanent basis and agreed to leave the child with the father at the house of the paternal grandparents.

The father unilaterally breached the terms of the Agreement by moving to Belgium with the child without the consent of his mother. Subsequently, the parties came to a verbal agreement that the child could relocate to England, but subsequently changed his mind and denied the existence of such agreement.

Under Italian law, a child is subject to the authority of both parents until majority or emancipation (Article 316, Civil Code). The authority is exercised by both parents by mutual agreement. In the case of separation and/or divorce, if shared custody is granted, both parents exercise parental authority. Therefore, any decision regarding the minor must be made jointly, taking into consideration the best interests of the child.  If the parents are not in agreement, the principles of Italian law regarding the rights and duties of parents require authorisation of the court for moving a minor abroad, both in the case of shared custody and sole custody. It is now undisputed that when parents have shared custody, the decision of moving the child's residence overseas must be agreed on by both parents and, in default of this, by a court (Bologna Juvenile Court, 02/07).

The High Court will now need to determine the effects of an Italian Assisted Negotiation Agreement where both parties subsequently breached its term and whether the best interest of the child would be safeguarded if the case was continued to be heard in England or remitted to the concurrent jurisdictions of Belgium (where father is currently habitual resident) or Italy, which had already been seized of this matter at the outset. It will also need to consider, in particular, the scope of the jurisdiction conferred by article 11 in "all cases of urgency" in a contracting state where a child is present but not habitually resident.

 “The Assisted Negotiation Procedure in Italy - another form of ADR”:https://www.giambronelaw.com/site/library/articles/assisted-negotiation-procedure-in-italy

Editors Notes:

International law firm Giambrone (SLG) is a global law firm with 8 offices and approximately 60 lawyers in offices across Europe and North Africa

Our Family Team acts for clients across the UK and internationally who are embarking on divorce or separation or dissolution of a civil partnership. The firm advises on all areas of family and children's law, including the creation of alternative family structures. We have a specialist children department with specific expertise in all aspects of international children's law.

Media contact: Shama Tipi – Head of Business Development

EMEA – Telephone: +44 (0)20 7183 9482   

Email: shama.tipi@giambronelaw.com