In the Italian Supreme Court of Cassation, Criminal Division, Section VI, 7 May 2026, No. 16457, the Court reinforced the role of international human rights law in the interpretation of Article 574 of the Italian Criminal Code concerning child abduction. 

The case originated from a decision of the Court of Appeals in  Potenza, which had upheld the conviction of a father and the paternal grandmother for preventing two children from returning to their mother despite a judicial custody order. For almost two years, the children were kept away from the mother, repeatedly hidden from the authorities, and prevented from regularly attending school. Before the Court of Cassation, the defence argued that the children wished to remain with the father and that such consent excluded the unlawfulness of the conduct. 

The Court rejected this argument and, in paragraph 5.1 of the judgment, relied explicitly on the Convention on the Rights of the Child (CRC) and the Council of Europe Istanbul Convention as interpretative standards for assessing the legal relevance of minors’ wishes in custody disputes. According to the Court, children’s alleged consent cannot exclude the unlawfulness of the offence under Art. 574 of the penal code Although minors must be heard and their views taken into account, their preferences are not automatically decisive when they conflict with judicial custody arrangements. The Court noted that the children had never been heard in a genuinely protected setting and stressed that their refusal to return to the mother had to be assessed within a broader context marked by isolation from the maternal figure, opposition to judicial and social-service interventions, and prolonged interruption of school attendance. 

The Court based its reasoning on the CRC principle of the “best interests of the child”, distinguishing between the child’s right to be heard and a supposed unrestricted power of self-determination capable of excluding criminal liability. The judgment emphasizes that, particularly in highly conflictual family contexts, children may be exposed to emotional pressure, manipulation, or coercive dynamics. In such a context, particular importance must be given to Article 31 of the Istanbul Convention, stressing that situations involving psychological violence or controlling family dynamics require careful scrutiny of children’s expressed wishes. Their asserted consent, therefore, cannot justify violations of custody orders or parental “self-help” measures.

The judgment also refers to the case-law of the European Court of Human Rights (ECtHR), notably D.M. and N. v. Italy, where the Strasbourg Court clarified that declarations of adoptability and separation from the family environment are permissible only in wholly exceptional circumstances. Drawing on this precedent, the Cassation criticized the domestic handling of the case and highlighted the secondary victimization suffered by the mother.

According to the Court, this victimization was aggravated by the forcible removal of the children from the father and grandmother and their placement in a residential care facility, despite the existence of a custodial mother legally entitled to care for them. The Court therefore rejected the appeals lodged by the father and grandmother and confirmed their criminal liability.

The added value of this ruling lies, therefore, in having dismantled the notion that a minor’s expressed preference can be invoked as an 'excusation' (scriminante) for the violation of court-ordered custody arrangements. The Court clarified that the “best interests of the child” cannot be reduced to the child’s immediate wishes, especially in situations marked by pressure and psychological conditioning, reaffirming the role of international human rights law in limiting unilateral parental conduct.