ITALY Trends and Developments Contributed by: Romualdo Richichi, Studio Zanetti Vitali
the move do not really serve the child’s interests but are more motivated by the personal pursuits, however legitimate, of the parent wishing to move. Listening to children Hearing children in Italian civil proceedings has been mandatory for a long time, according to several pro - visions of law (including the general rules of Article 315 bis of the Italian Civil Code and 337 octies con - cerning custody and visiting rights, which also applies to cases of disputed relocation) introduced into the Italian system for alignment with the principles of the New York Convention on the Rights of the Child of 20 November 1989. The above-mentioned provisions, however, were sub - ject to one exception, which allowed judges to entire - ly dispense with a hearing whenever they deemed that it would not be in the best interests of a child, or that it would be redundant; the problem was that this “exception” was treated as the rule and that, in practice, children were heard in court very rarely and mostly reluctantly. All this changed in 2022 following legislative Act 206 of 26 November 2021, which made it obligatory to appoint a guardian ad litem ( curatore speciale ) who would act as an attorney for a child and become an independent party for almost all disputed cases impacting on custody and visiting rights, such as those concerning relocations. According to the new text of Article 78 of the Italian Code of Civil Procedure (now Article 473 bis 8, follow - ing the full implementation of the reform), a guardian must be appointed not only in cases of forfeiture of parental responsibility or adoption, or when the par - ents appear unable to represent the best interests of the child, but also whenever a child aged 14 years so demands, and whenever the judge deems the par - ents to be temporarily unable to represent the child – which, according to interpretation given to the relevant provision by many courts, will be the case whenever the parents disagree on a major issue such an inter - national relocation. The consequences of the new relevance given by the reform of Italian civil procedures to the personal posi -
tion of a child underscores the trend towards a real focus only on the interests of children in any judicial decision concerning relocation. However, while it can be said that adding an independent guardian can allow a more objective evaluation of the position of the child, introducing a third party could add a new layer of complexity and further uncertainty for parents. Impact of the Cartabia Reform The new development affecting child-relocation mat - ters with the most meaningful impact on parental equality and responsibility is the Cartabia Reform (of civil procedures), implemented in March 2023. Among the many undisputed benefits of the reform is that it is fairly difficult to identify any simplifications to the solutions that it provides to disputes concerning matters of child relocation. Previously, when no agree - ment between parents could be reached, many courts were able to handle the issue with simple procedures, which is no longer the case. Before the Cartabia Reform, there was no general procedure in Italy for family cases, and judgments falling outside the procedure of legal separation and divorce cases, such as judgments concerning paren - tal responsibility for children of unmarried couples, were treated as judgments held within the Chamber of Council, meaning trials in closed session – which were highly simplified judgments regulated by a single law provision, Article 738 of Italy’s Code of Civil Proce - dure, according to which the panel of the court, before any decision, had the authority to gather information ( assumere informazioni ). This meant that, in cases related to children, the court could issue orders over fact-finding activities as it saw fit, ranging from none at all (which meant that a decision could be reached in a few weeks) to appointing experts, hearing wit - nesses and anything else (which meant that proceed - ings could span years). However, legal separation, divorce and all other pro - ceedings shared one common feature, namely that after a single exchange of written defences – an ini - tial application and a response, which required only the attachment of basic documentation such as tax statements and public registry certificates – the par - ties appeared before a judge (or a panel, depending
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