ITALY – ROCHFORD – 1999 (Return ordered) Rochford v Rochford The mother removed the child from England to Italy. The court ruled that the habitual residence of the child was England and that the removal was unlawful. The court ordered the child returned.


Rochford and Rochford (Italy 1999)Juvenile Court of Rome N. 2450/98 E
1 International Abduction [Italy 1999]

Nr. 2450/98 E

(decree pursuant to art. 7 Law 15.1.94 n. 64
international child abduction)

The Juvenile Court in Rome, in Chambers, with the following

Luigi Fadiga Pesident
Alessandro Sorge Judge
Vittoria D’Agostino Honorary Judge
Giovanni Costanzo Honorary Judge

issued the following


In the proceeding taken by the:

Public Prosecutor of the Juvenile Court in Rome

Petition of:

Ministry of Justice, as Central Authority for the Hague
Convention of 25th of October 1980 on the civil aspects of
the international child abduction, ratified on 15.1.1994
with law n. 64,


Declaration of unlawful transfer of the minor Luca Gerald
ROCHFORD, son of Nicholas ROCHFORD and of Pasqualina DI VITO
ROCHFORD, born in London on 5.8.93.

001 The Court, at the end of the today’s hearing in
chambers, fixed pursuant to art. 7 of the law 15.1.94 n. 64,
where the following persons have been heard:

002 – the minor’s mother Mrs Pasqualina Di Vito Rochford
with her lawyer, Mr Francesco Mastroianni, of the Court of
Rome, who asked for the dismissal of the petition;

003 – the minor’s father Mr Nicholas Rochford with his
lawyer Mrs Roberta Ceschini, of the Court of Rome, who asked
that the transfer be declared unlawful and that an order of
immediate return be issued.

004 – the Public Prosecutor, Mr Roberto Polella, asked
that the petition be deemed grounded,

Observes in fact and law

005 On 19.10.98 the Public Prosecutor, at instance of the
Central Authority at the Ministry of Justice, filed a
petition in favor of the minor Luca Rochford for the
enforcement of the Hague Convention of 25.10.80. The child
was born in London on 5 of August 1993, and is the son of
the British citizen Nicholas Rochford and of his wife
Pasqualina Di Vito (also called Lita Di Vito)
Italian-British citizen. They married on May 1991 in
England, where Mrs Di Vito had been living for many years
and where they have always lived. Currently they are
separated: Nicholas Rochford lives in England and Mrs Di
Vito lives in Italy. According to what Mr Rochford said to
the Central Authority, on 23 of May 1998, during a visit to
her son, Mrs Di Vito unlawfully abducted him to Italy where
the child currently is.

006 Previously, Mrs. Di Vito, on 3rd of June 1998 filed a
complaint asking this Court appropriate remedies to protect
the child, complaining about Mr. Rochford’s behavior, which
was, according to her, very deleterious for her child. She
took the latter to Italy with her husband’s consent in
September 1997. Di Vito’s complaint gave rise to the
proceeding 1319/98 E, which was adjourned to today’s hearing
for a possible consolidation of actions.

007 Pursuant to art. 7 of the law 1994 n. 64 the mother
was summoned at today’s hearing. The father also appeared
and asked to be interrogated. The Court has ordered the
consolidation of actions between this proceeding and the
above mentioned proceeding Nr. 1319/98.

008 The spouses have been previously invited by the
President to try a settlement, however with no success. When
they have been interrogated, they have persisted in telling
respectively their versions of the facts. Mrs Di Vito has
declared that she permanently left to Italy with the child
and with Mr Rochford’s consent on September 1997, and she
accused him of having taken her son away on January 1998,
when he retained him in England at the end of Christmas
holidays. On the contrary, Mr Rochford has denied having
agreed to a definitive transfer of his son to Italy and said
that they had only agreed for a temporary transfer to Italy.

009 The Court observes that this case must be decided
according to the Hague Convention of 25.10.80, implemented
in our legal system pursuant to the above mentioned law
15.1.94 n. 64. This means that the Judicial Authority of the
requested Country must order the child’s return, once it is
established that his removal infringed the custody rights
allowed by the law of the Country where he usually resided
(art. 3 of the Convention).

010 The fact that the child usually resides in England can
be proved by the fact that the child, born in that country,
has always lived there with his parents until September
1997. It is true that afterwards he has lived in Italy from
September until December of the same year, however such a
three months period is too short for establishing a new
habitual residence. Then, it is irrelevant the fact –
indicated but not substantiated by the defender – that the
child and his mother would be resident in SS. Cosma e
Damiano, in the province of Latina. In fact, according to
the Convention, the expression habitual residence does not
indicate the registered residence, but the place where the
child usually spends most of his time. This place, center of
the child’s life, is without any doubt, England, where Luca
was born and has grown up. In fact, when he arrived in
Italy, he did not speak Italian, as indicated in Mrs
Minuzzo’s psychological report, filed by Mrs Di Vito’s

010 The merits of the case cannot be examined at this
hearing. The return order can only be denied in one of
the following cases, pursuant to art. 13 of the Convention:

– if the person from whom the child has been taken away did
not have the effective parental authority when the removal
took place;

011 – if, because of the return, the child runs the risk
of having physical or psychological problems or finds
himself in an intolerable situation;

012 – if the child does not want to come back and he is
old enough to provide for his opinion

013 None of these three cases corresponds to the present
cased. In fact Luca Rochford is just five years old, and he
is still too young to assess a situation with impartiality
or to make choices.

014 With respect to point b) of the same article. Mrs Di
Vito has given no evidence of Nicholas Rochford’s bad
behavior, and there is no reason to fear that Luca’s return
to his father shall create an intolerable situation for the
child. It is not possible to accept the request of Mrs
DiVito’s lawyer for a psychological report. It is up to the
part to prove that the return is intolerable and the
inevitable pain consequent to the parents’ separation cannot
be used as an means to infringe the Convention.

015 Moreover, this is neither the case of refusal
indicated in letter a) of art.13. There is no doubt that
Rochford and Di Vito are married, and, since the English
Family Law (like the Italian one) provides that both parents
have the parental authority and they exercise it jointly, on
23 of may 1998 Rochford effectively exercised the parental
authority. Moreover, the documents he has filed show that
since 28th of January 1998 the English Court had forbidden
the removal of the child from England, an injunction
pronounced on 19 March and 20 April and served to Mrs Di
Vito on 25.4.98. Mrs Di Vito ‘s statements about the fact
that she did not understand the meaning of that measure are
unacceptable. Hence, the petition that Mrs Di Vito filed
to this Court on 3.6.98, few days after she had come back to
Italy with her child, have an instrumental nature. In fact,
at that time the English Court had already passed three
measures, which forbade Mrs Di Vito to take her child out of

016 Mrs DiVito’s lawyer has declared – but not
substantiated – that a proceeding for separation of spouses
is pending before the Court of Latina and he has asked for
an adjournment of the hearing, while waiting for that
judge’s decision. The request cannot be accepted, because,
according to art. 16 of the Convention, the present
proceedings takes precedence.

017 Hence it is necessary to declare Luca Rochford’s
removal unlawful, and order his return to his usual
residence in England, rejecting Mrs. Di Vito’s petition of


018 The Juvenile Court of Rome, rejected every contrary
petition, in acceptance of the Public prosecutor ‘s
petition, pursuant to art. 7 of the law 15.1.94 n. 64 and
artt. 3 and following of the Hague Convention of 25.10.80 on
the civil effects of the international child abduction,
states that Luca Rochford’s removal to Italy was unlawful
and as a consequence the Court orders the child ‘s return to
his habitual residence in England, to his father;

019 This decree is immediately enforceable.

020 The present decree be communicated to the parties and
to the Central Authority for the Hague Convention of
25.10.80 in the Central Office for Juvenile Justice the
Ministry of Justice in Rome.

As decided in Rome, 7th January 1999
The President

Deposited on January 13, 1999