Key facts of the case:
S.M. moved to Morocco with his wife for work and they decided to take care of an orphan. The Tangeri Tribunal granted them custody of the child under the kafalah system. When they had to return to Italy, the child was refused entry permit by the competent authority in Casablanca. - Immigration - The legal question was to understand whether in case of custody under the kafalah system, family reunion should be granted. Domestic Courts were not of this opinion. In opposition to the lower Tribunal, the Court of Appeal deemed that S.M. wanted to avoid compliance with Italian legislation on international adoption. According to the Court of Cassation, the domestic legislation on family reunion should be interpreted in a way that includes the Islamic child in the notion of family member in order to respect the principle of the best interest of the child, affirmed among others, in the EU Charter of Fundamental Rights. As for the outcome of the case, the Juvenile Tribunal had granted the adoption of the child by the applicant before this judgment was decided, thus obliging the Consulate to issue the entry permit for family reunion. In spite of this development, the Court of Cassation decided to resolve the legal question given that the issue is particularly significant.
... in every situation where the interest of a child is raised, its prevalence on any other conflicting interest must be granted. This principle, explicitly stated in Art. 3 of the New York Convention on the Rights of the Child of 24 November 1989, ratified with Law 27 May 1991, no. 176, (“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”) and reaffirmed in Art. 24 of the EU Charter of Fundamental Rights, 7 December 2000, adopted in Strasbourg on 12 December 2007 that, according to Art. 6 of the Treaty of Lisbon, which entered into force on 1 December 2009, acquired the same legal status of the Treaties ("In all actions relating to children, whether taken by public authorities or private institutions, the child's best interests must be a primary consideration"), but also inferable from articles 2 (that applies also to adult and underage foreign children: Constitutional Court no. 199/1986; no. 203/1997 and no. 376/2000) and 30 of the Constitution, must be applied also in relation to the domestic legislation on immigration.