La prassi italiana sul ritorno del minore sottratto ai sensi dell'art. 11 par.8 del regolamento Bruxelles II-bis

The vast majority of return applications filed with the Italian Central Authority under the 1980 Hague Convention on the civil aspects of international child abduction concern children who are habitually resident in Italy and have been wrongfully removed to a foreign State (so called «outgoing cases»). Therefore, it is not surprising that some of the foreign decisions refusing to return a child on the grounds of Article 13(1)b of the Convention were challenged before Italian courts with the special procedure provided under Article 11(8) of the Brussels IIa Regulation. Indeed, Italy stands out as one of the very few EU States that provide some caselaw on Article 11(8) of the Brussels IIa Regulation. However, it does come as a surprise that in most of these cases Italian courts, after a thorough analysis of the facts, including what was produced in the foreign proceedings, have confirmed the foreign non-return order and dismissed the request for return. In fact, only in a small number of cases the court has found the foreign decision to be ill-founded and has adopted a «trumping» return order. The present article aims at reviewing and analysing both groups of decisions, showing, on one side, how the time factor is often crucial and rightly kept into consideration by the court of habitual residence when deciding for non-return. On the other side, time is of the essence also in cases where the court of habitual residence orders for the children to be returned. When such order is not complied with or enforced in a very short time, it is here assumed that best interest of the child would call for a subsequent review of the decision rendered by the court of the place of the child’s habitual residence.