INTRODUCTION

Child participation is experiencing considerable development in Italian family law at the legislative and judicial levels, and is also progressively taking hold in the policy-making field, where some authorities have cautiously started introducing child participation as a form of consultation.

The fragmentation that historically and culturally underlies the Italian system in family law proceedings, and which traditionally divides competence between ordinary and juvenile courts, also concerns the child's right to be heard, enshrined in Article 12 of the UN Convention on the Rights of the Child (UNCRC). The right to be heard, in fact, is not uniformly applied in Italy, as it does not exist as a national (neither procedural nor substantive) rule, which would ordinarily safeguard its effective implementation throughout all types of family law proceedings.

In general, ordinary courts (tribunali ordinari) deal with parental responsibility issues, mainly in the context of separation and divorce proceedings (custody, placement, maintenance), while juvenile courts (tribunali per i minorenni) deal with requests for limitation and loss of parental responsibility (so-called de potestate proceedings). In some circumstances, ordinary courts may ‘ attract ‘ juvenile courts ‘ competence (vis attractiva).

Juvenile judges, ordinary judges and public prosecutors work closely with all key actors involved in the proceedings, such as social and health services, communities, attorneys, and local authorities. They mainly rely on social services and local authorities during proceedings and to have their decisions enforced.

The Italian population, on 1 January 2020 comprised 60,317,000 residents, of whom 9,433,159 were children. In the year ending 31 December 2019, there were 184,088 marriages, 85,349 divorces and 94,474 separations (absolute values); per 1,000 marriages, 53.6% of separations and 40.5% of divorces involved children.

STATUTORY PROVISIONS

Children's participation in family law proceedings has been transformed in the Italian legal system. The hearing of the child was first introduced in 2006, within parental responsibility proceedings, where the new Article 155 sexies of the Italian Civil Code (c.c.) established a new obligation for the judge to hear children aged 12 years or over, or younger if capable of discernment (i.e. of forming their own views). However, the current legal framework is mainly attributable to the reform of 2012 – 2013 when significant changes to substantive and procedural family law were made.

INTRODUCTION

In this chapter, we will explain the role of private international law instruments in seeking to ensure children's right to participation.

Private international law instruments most often do not impose direct duties to hear the child or do not address the opportunity or the methods for child participation in judicial proceedings. This branch of law addresses four issues: which court has jurisdiction to hear disputes linked to two or more legal systems, what the applicable law is, what the conditions for the recognition and enforcement of foreign judgments are, and how authorities can cooperate across borders to solve disputes between individuals. In other words, private international law comprises road signs pointing the way to the legal system within which a certain case should be settled, not detailed traffic rules. Therefore, how children should participate in proceedings is generally a matter for national procedural law.

The fundamental rights of the child must be respected in all actions concerning the child, transnational cases included. This includes children's right to participate in all proceedings concerning them. In this context, the borders between private international law and human rights law are slowly fading, in the sense that the second influences the functioning of the first.

Supranational legislators of private international law are not blind to the importance of child participation, especially when their instruments have as a fundamental objective the protection of the best interests of the child. As will become apparent in this chapter, legislation on private international law more and more frequently makes explicit reference to the protection of the fundamental rights of the child as a primary concern and (at the same time) as a principle inspiring the interpretation and application of its rules.

In this chapter we identify indirect duties and careful nudges by supranational legislators to better respect children's right to participation. This includes explaining the role of private international law instruments like the 1980 Hague Convention on the Civil Aspects of International Child Abduction, the 1996 Hague Child Protection Convention, the Brussels II bis and ter Regulations and maintenance conventions and Regulation.

CHILD PROTECTION

1980 HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION

One of the areas in which the issue of child participation has emerged is international child abduction, a phenomenon that has become one of the most important concerns for public institutions since the second half of the 20th century.