In order to protect a minor who temporarily lacks of a suitable family environment for their proper and safe growth, a procedure can be open at the Juvenile Court. The request can be presented directly by the parents or by the relatives or following a report by Social Services, local authorities, the school system or by the security authorities. The report is aimed at offering proper support to the minor and to the household.
Our Firm offers legal advice and assistance for all procedures pertaining this specific Court. During these procedures, the measures that can be adopted are:
Hetero-Familiar Foster Care is arranged when the family of origin is not suitable for the minor’s proper and safe growth.
However, the main goal of the minor’s placement into a different family from their birth family, meaning the placement into the foster care body with territorial jurisdiction in the child’s residence, is to return to their home of origin. Therefore, the birth family’s troubles must be temporary.
Entering the Foster Care system does not strictly imply placing the minor in a community facility. The Juvenile Court can impose a restriction to parental responsibility, while letting the minor stay with their birth family. However, the family will be subject to monitoring and supervisory by Social Services until the situation of distress and of difficulty lasts.
Minors have the right to grow and be educated as part of their own family according to Art. 1 of Law 184/1983 and as amended by Law 149/2001 of the Italian Civil Code. Only in special cases, when the family is not able to ensure the child’s proper social and cultural growth, and where placement in a foster family is not possible, the Juvenile Court can decide to temporarily place the minor in residential accommodations, in some cases with the parents. The Court has to guarantee the constant relationship between the minor and their family of origin.
Currently, single people and same-sex couple cannot adopt a minor, except in particular cases listed in Art. 44 of Law 184/83. However, they can foster minors that are temporarily without a proper family environment as referred in the Art.2 of Law 183/84.
The removal of parental responsibility is an institution governed by Art. 330 of the Italian Civil Code and should be order when a one or both parents violate or neglect their duties related to their parental responsibility. Moreover, this procedure can be applied if one or both parents abuse the powers linked to their responsibility, resulting in severe damage to the child.
Removal of parental responsibility is an extreme measure to protect the children and a disciplinary action for violations already committed by the parent. When the reasons for the removal cease and when there is no more danger for the minor, parental responsibility can be reinstated to the parent.
The restriction of parental responsibility is the institution ordered by the Court whenever the violations of the duties related to parental responsibility are severe but not enough to determine the need to pronounce the removal of the parental responsibility.
When the situation of distress and difficulty of the minor’s family of origin does not present temporary characteristics and brings severe harm to the child, the Juvenile Court can open a procedure to protect the minor, declaring their state of adoptability.
The national adoption is governed by Law 184/83 which states that in order to declare a minor adoptable, the state of abandonment must be met. The state of abandonment refers to the condition of a minor lacking material and moral assistance from their parents or their relatives that are supposed to provide for it, as long as this situation is not caused by factors with temporary characteristics.
Following a complex and deep investigation on the minor’s household of origin and the extended family, if the Juvenile Court recognizes the state of abandonment, it can declare that from that moment forward the minor is adoptable by a new family.
Through the legitimization of the adoption, the minor acquires towards the adopters all the rights of biological offspring.
Intercountry adoption is the adoption of a foreign child made in their own country in compliance with the legislation in force in that State.
Italian residents wishing to adopt a foreign minor living abroad have to present the declaration of availability for international adoption at the Juvenile Court. The Court, after an appropriate assessment, can issue a decree of suitability, or a decree of unsuitability attesting the absence of the requirements for adoption.
Once obtained the decree of suitability, the couple has to start the adoption process within a year. The adopters must approach one of the entities accredited by the Commission for Intercountry Adoption; the agency will then manage the paperwork required and will forward the documentation relating to the minor and the couple of adopters to the Commission. After checking the accuracy of the documentation and the compliance with the Hague provisions, the Commission can authorize the entry of the adopted child in Italy.
Once the child has entered Italy and the period of pre-adoptive fostering has elapsed, the Juvenile Court will order the civil status authorities to transcribe the adoption decision in the registries.
The institution of adoption in special cases consists in the adoption of a minor in particular situations where the requirements for an ordinary adoption are not met.
The law on adoption is governed by Act No 184/1983 pursuant to Art. 44 and allows adoption in these situations:
- by persons tied to the minor by family ties, up to the sixth degree of kinship, or by a pre-existing stable and durable relationship, that could have developed during an extended foster care, when the minor is orphan of both father and mother;
- by a spouse in the event that the minor was previously adopted by the other spouse;
- when a minor is disabled and orphan of both parents;
if pre-adoptive placement is proved as impossible.
These procedures are governed by Art. 25 of Royal Decree-Law 1404/1934 and subsequent amendments.
The Juvenile Court can receive reports from either the Prosecutor, Social Services, the parents, the legal guardian, the education institutions or from any other institution providing protection and assistance to children and youth. After receiving the reports concerning a minor’s irregular behavior or character, the Court can dispose one of these measures to protect the minor:
- entrusting the minor to the Social Services for Minors;
- placement in a Re-educating Center or in medico-pedagogical institutes.
Representing minors in all civil acts until their age of majority or emancipation is responsibility of both parents together or of the parent exercising the parental responsibility alone. However, when the minor’s property appears to be poorly managed, the Juvenile Court has the authority to set the terms and conditions that the parents must follow; alternatively, in case of conflict of interest or severe damage, the authority can additionally remove one or both parents from the management of the minor’s property and can remove legal usufruct from the parents’ rights. In the event of both parents being removed from the management of the assets, the Juvenile Court will assign it to a curator.
If the offender is younger than 18 years old, the Juvenile Court is the competent body that handles the proceedings against them. The Presidential Decree 22 September 1988 No 448 introduced for the first time in the Italian criminal system the conciliation and reparation model (modello Conciliativo-Riparativo). The goal of the legislator is to bring together the need to provide a response to the crime and the one to protect the minor’s evolutionary process of growth, avoiding as much as possible their entrance within the penal system.
In accordance with the conciliation and reparation model, the Juvenile Justice System provides for not only a set of measures involving detention and confinement, considered the last actions to be chosen (extrema ratio), but also a set of progressive interventions that will enable pro-active purposes also towards the entire society.
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The Tutelary Judge is the judge to whom are assigned the functions concerning the protection of the family, of the persons and especially of the most vulnerable individuals, such as minors and incapacitated individuals, covering both property and the non-property aspects.
The Tutelary Judge is responsible of the proceedings where there are not two or more interested parties at odds, but only incapacitated persons or those who are not fully able to provide on their own to their interests. In their support, the Tutelary Judge will intervene with functions of protection and guarantee.
Furthermore, the Tutelary Judge has a fundamental role: they are the authority which follows the monitoring of the compliance with the final provisions and measures issued within the family by the Ordinary Court or by the Juvenile Court.
The Article 337 of the Italian Civil Code gives the Tutelary Judge the power of monitoring the implementation of the conditions ruled by the Ordinary Court to exercise the parental responsibility. The Tutelary Judge however is not appointed the power of modifying these rulings. The Art. 337 Civil Code states that “the Tutelary Judge must monitor the compliance with the conditions that the Court has decided in order to exercise the parental power (now parental responsibility) and the managing of the assets”. The lack of this modifying power by the Tutelary Judge purely concerns matters related to custody of children, their placement and the quantification of contribution to the minor’s maintenance, without including however secondary or merely implementing issues. Therefore, we can say that the Tutelary Judge holds a power of “active monitoring” on all matters that do not fall within the above-mentioned provisions. This power is hence functional to the concrete application of the procedure intender by the trial judge.
Consequently, if a parent considers the presence of non-compliance by the other parent with the decisions issued by the Ordinary Court, our Firm offers legal advice in order to appeal to this body. Once the presence of non-compliance has been verified, the Ordinary Court can adopt all the necessary measures to ensure the precise implementation of the established provisions.
When the Juvenile Court decides to close an open proceeding to protect the minor, thus recognizing the need to keep monitoring the situation, the case file is forwarded to the Tutelary Judge, who will then have the power to monitor the minor’s condition and the compliance with the provisions set out by the final judgment. The competent Social Service or those who have the parental responsibility are required to constantly update the Tutelary Judge in order to allow him to effectively monitor the situation.
Finally, the Tutelary Judge can, if deemed necessary to issue further interventions for the minor’s situation, send a report to Public Prosecutor’s Office (Procura) to adopt new and different provisions for the benefit of the minor.
Both parents or those who have parental responsibility must represent and manage their children’s property. However, the management of the assets encounters some limitations because the acts of extraordinary administration concerning the children’s property cannot be carried out by the parents neither jointly nor separately without a previous authorization of the Tutelary Judge.
Whenever it appears that the parents or those who have parental responsibility poorly manage the minor’s property, the Tutelary Judge has the authority to set the terms and conditions that the parents must follow; alternatively, in case of conflict of interest or severe damage, the authority can additionally remove one or both parents from the management of the minor’s property and can remove legal usufruct from the parents’ rights. In the event of both parents being removed from the management of the assets, the Court will assign it to a curator.
The Tutelary Judge is the authority that has to be addressed if the other parent does not give their consent at the time of the application for the issuing or renewal of the minor’s identification document valid for expatriation.
To issue this document valid for expatriation (identity card or passport) in fact, the consent of both parents is required. Without this consent, the Tutelary Judge assesses the interest for the minor and issues a provision that authorizes the competent Authority to issue the required document.
Family placement is laid out by local services following expressed agreement by the parents or by those who have parental responsibility. The locally competent Tutelary Judge implements the provision with which the service disposed the placement and makes it enforceable by issuing a decree.
The reasons that made the placement necessary, the means of exercise of the parental responsibility and the length of the placement must be listed in the placement provision.
Social Serviced must monitor the situation and constantly communicate with the competent Tutelary Judge.
The family placement ends with a provision by the same authority that disposed it, after assessing the minor’s interest and when the temporarily troubles of the family of origin that caused the placement have been resolved. Family placement can also stop in case that its continuation might be harmful to the minor.
Until 2013, parents under 16 could not recognize their own child. Since the 1st of January 2013, the Article 250 subparagraph 5 of the Italian Civil Code states that “the recognition of a child cannot be carried out by the parents who have not turned 16 years old yet, unless a judge authorizes them, after assessing the circumstances and in respect of the child’s interest”.
Therefore, the parent under 16 that wishes to recognize their own child must address the locally competent Tutelary Judge and file a request. The Judge, after reading the application and assessing the child’s interest in the specific case, issues a substantiated decision that authorizes or not the parent to carry out the child’s recognition.