ITALY Law and Practice Contributed by: Romualdo Richichi, Studio Zanetti Vitali
Convention will be strengthened by the additional rules set out in Articles 23–29 of Council regulation (EU) 2019/1111 of 25 June 2019 “on jurisdiction, the recognition and enforcement of decisions in matrimo - nial matters and the matters of parental responsibility, and on international child abduction”. These rules are aimed at further acceleration of the treatment of a return application, and at ensuring that the courts of the member state where the child was habitually resident, and from which the child has been illegally abducted, retain their international com - petence on matters regarding parental responsibility (which also cover decisions concerning habitual resi - dence), notwithstanding the denial of a return appli - cation, whenever the related decision is grounded solely on the reasons set out in Article 13 of the Hague Convention (ie, when the child is found to have been abducted from the country where they were habitu - ally resident but the parent left behind was not actu - ally exercising custody rights, or when a return would expose the child to serious risk). This means that, according to the EU Regulation sys - tem, the final decision concerning the return of the child is taken by the judicial authority of the country from which the child has been abducted, because even if the authorities of the country of destination were to deny the return application made under the provisions of the Hague Convention, a subsequent order of return issued by the courts of the country of origin, which retain their jurisdiction, would be fully enforceable. If, conversely, the child has been taken to a country that is not a signatory of the Hague Convention lack - ing any bilateral agreement, the only effective way to pursue their return would be to obtain an order to that effect from the authorities of the same country. 3.3 Hague Convention on the Civil Aspects of International Child Abduction As stated, Italy is a signatory of the Hague Conven - tion; therefore, if an abducted child is taken within its jurisdiction, the provisions concerning their return will be fully applied.
The intervention of the Italian Central Authority is free of charge, and judicial proceedings related to an application for the return of a child do not require the active participation of the applicant – who, therefore, is not obliged to instruct a lawyer. However, any legal assistance (which is not essential but may be strongly recommended) should be paid according to the terms agreed between client and attorney. Furthermore, in several Hague Convention signatory countries, in order to apply for the return of a child it may be necessary to appoint a lawyer who must be paid according to the rules in place in the same country. Official data concerning numbers of Hague Convention cases processed in Italy can be found on the website of the Italian Ministry of Justice. While official data does not contain information on the outcome of Hague Convention applications for return processed by the Italian authorities, the treatment of the related proceedings within the Italian jurisdiction is mostly unbiased and respectful of the principles underlying the Convention, with fairness shown to the positions of the parties applying for immediate return as well as to the parties opposing the application, and with the best interests of the children involved gener - ally the only factor considered. According to Article 7 of Law No 64 of 15 January 1994 implementing the Hague Convention provisions within the Italian jurisdiction, applications for the return of children abducted to Italy must be treated as follows. • Any request for the return of the child from abroad is processed by the Italian Central Authority, which will usually entrust an office of the police special - ised in treating juvenile cases with an initial assess - ment of the situation. This generally entails sum - moning the parent who has the child in order to confirm the presence of the latter; see if the former is willing to spontaneously return the child; and, if this is not the case, gather any additional informa - tion. • If the abducting parent does not agree to return the child to their country of habitual residence, an application must immediately be transmitted to the public prosecutor’s office attached to the relevant
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