Koons c. Italie (Requ?te No 68183/01)

INCADAT legal file Hague parental abduction

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The case concerned a child born in the USA in 1992. The parents’ marriage had been troubled very soon. As early as 27 December 1993, when in Rome with his mother, the child was taken to the USA by his father, who immediately applied for divorce and custody there. The mother travelled to New York.
In January 1994, a New York court awarded provisional joint custody to the parents and held that the child would reside in New York. In June, the mother took the child with her to Italy. In December 1994, the New York court ordered a divorce, awarded custody to the father and confirmed that the child should reside in New York. The father applied for the child’s return, claiming that he had taken him to New York because the mother had left him in Rome to take part in an erotic show.
On 6 April 1995, the President of the Rome Court of first instance, upon a petition for divorce and custody from the mother, held that the 1980 Hague Child Abduction Convention was inapplicable since it was not yet in force in Italy, and awarded custody of the child to the mother provisionally, with the father having a right of access exercisable in Italy only. On 3 October 1997, after a quashing by the Supreme Court, the Rome Court of first instance held the mother’s petition to be inadmissible on the grounds that the parties were already divorced by the New York ruling of December 1994.
The Court of Appeal of Rome, to which the father had applied in the meantime for exequatur of the US divorce judgment, dismissed the application in July 1995 on grounds of inconsistency of the judgment with public policy.
The mother once again petitioned for divorce in Italy. On appeal, the Court of Appeal of Rome considered in July 1998 that even though the experts hinted that the father was “best suited to provide the child with a background of relationships in which he might live and grow”, neither parent was blameless and decided that it would be less traumatic for the child to be entrusted to the mother since he had been living with her for several years. The father’s appeal to the Supreme Court was dismissed.
In 1993 and 1994, the father had brought criminal complaints against the mother for breach of the duty of family assistance and abduction. The mother was finally convicted on the charge of abduction.
As the mother denied the father access to the child, in breach of the terms of the order of July 1998, the father initiated criminal proceedings against her in 2002 for deliberate failure to execute a court order – the outcome of those proceedings was unknown to the European Court of Human Rights (ECrtHR). The father also brought proceedings for forfeiture of parental authority owing to the obstacles she raised between his son and him. His claim was dismissed on appeal.
The father, in other proceedings, applied for amendment of the terms of custody. The Court ordered in April 2003 placement of the child with the public agencies, his residence being maintained with his mother. The father appealed and petitioned for the hearing scheduled for February 2004 to be moved forward to September 2003 as the mother continued to impede exercise of his parental authority.
In November, the Court of Appeal of Rome held that the municipality should obtain information concerning the child’s placement, and adjourned the case to February 2004. After a series of postponements due to attempted amicable settlement, the Court of Appeal held on 30 October 2006 that the custody entrusted to the social services had failed “in terms both of monitoring of the child’s development and of the prospect of closer relations with the [father]”.
It added that the atmosphere of perpetual conflict between the parents and their lack of willingness to collaborate caused it to rule out the possibility of shared custody. Having regard to the child’s age and his wish to remain with the mother, the Court regarded it as logical to exclude the child’s placement with the father and added that a further attempt at mediation would be a source of stress for the child.