Information Note on the Court’s case-law No. 76
June 2005
Koons v. Italy (dec.) - 68183/01
Decision 7.6.2005 [Section IV]
Article 8
Article 8-1
Respect for family life
Applicant who criticises the measures taken after his divorce concerning his son, who was abducted abroad by the mother: admissible
The applicant is a national of the United States who had married a Hungarian national. They had a son, who was born in New York. After their separation a US court provisionally granted parental authority to both parents and fixed New York as the child’s place of residence. The mother, however, took the child with her to Italy. The US court granted a divorce, gave parental authority to the father and confirmed New York as the child’s place of residence. The applicant sought the return of the child pursuant to the Hague Convention of 1980 on the Civil Aspects of International Child Abduction, but his application was rejected on the ground that the Convention was not yet in force in Italy. An Italian court granted interim custody of the child to the mother in Italy, but that decision was subsequently annulled. The US judgment could not be executed in Italy, in particular on the ground that it prevented the mother from exercising her parental rights. At the mother’s request, the Italian courts granted a divorce and decided to give custody of the child to the mother, on the principal ground that, at that time, the child had been living with her for four years (after she had brought him there from the United States). Even though experts had designated the father as being more capable of bringing up the child, the judges decided that it was in the child’s best interest for him to remain in his day-to-day environment. The applicant obtained a right of access, which was to be exercised in Italy. Subsequently the judges refused once again to grant the applicant a right of custody, on the grounds that the child had grown up in Italy, had been living with his mother and had no contact with his father, once again invoking the necessity, in the interest of the child, to avoid any change in his circumstances. A court later ordered, in the interest of the child and further to an expert opinion, that the child should be placed in State care with the maintaining of his place of residence at the mother’s home. In the meantime, an Italian criminal court had found the mother guilty of child abduction.
Admissible under Article 8 of the Convention. Whilst proceedings concerning a request for a change in custody were admittedly pending, the right of custody claimed by the applicant had already been examined by three levels of court in Italy and the condition of the exhaustion of domestic remedies was thus fulfilled.
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This summary by the Registry does not bind the Court.
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