ITALY Trends and Developments Contributed by: Romualdo Richichi, Studio Zanetti Vitali
Listening to the Children Hearing children in Italian civil proceedings has been mandatory for a long time according to several provi - sions of law (including the general rules of Articles 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 most 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, adoption or when the parents appear unable to represent the best interests of the child, but also whenever a child of 14 years of age 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 existence of a trend towards a real focus on only the interests of children in any judicial decision concerning a relocation. How - ever, 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 with the most meaningful impact on parental equality and responsibility and affecting child-relocation matters is the legge Carta- bia – the reform of civil procedures or the “Cartabia reform” – implemented from March 2023. While the reform has brought very few undisputed benefits, it is particularly difficult to identify any easy solutions that it provides for disputes concerning mat - ters 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 very simplified judgments, regulated by a single legal 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, which was that, after a single exchange of written defences – an initial 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 on the nature of the case) empowered to issue pro - visional orders. In most cases, this judge was able
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