The novelties of the Family and Minors process, the reform introduced with Law 206/2021

The news of the  process of the Family and Minors,  the reform introduced with Law 206/2021

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The reform of civil procedure, the so-called Cartabia Reform (Law No. 206 of November 26, 2021), finally places due emphasis on family law and includes a series of provisions that will come into force on June 22, 2022.

The changes introduced by the new legislation will be implemented in three phases, the first of which will start on June 22 and will apply to proceedings initiated with appeals filed after June 22, 2022.

The first phase (from 22.06.2022)

Article 1, paragraph 37 of Law 206/2011 expressly provides that 180 days after the law comes into force, therefore from 22 June 2022, the following changes will apply immediately :

The Special Curator of the Minor

The reform addressed the provisions of Articles 78 and 80 of the Code of Civil Procedure, refining and expanding the legislation on the Special Curator by incorporating the most recent case law.

The reform clarified when a minor must be recognized as a party to the proceedings and established the cases in which a representative, such as a special curator, must be appointed.

While maintaining, as previously, the need to appoint a special guardian in the event of a conflict of interest between the minor and his or her parent, the reform has established the other situations in which the judicial authority is required to appoint a special guardian for the minor, distinguishing those in which such appointment is mandatory under penalty of nullity:

• forfeiture of parental responsibility
• confirmation of family removal pursuant to art. 403 cc; 
• alternative foster care;
• procedures for the declaration of the state of abandonment of the minor; 
• situation of prejudice to the minor such as to preclude adequate legal representation 
• request of the child over fourteen.

The appointment is optional in the event of temporary inadequacy of the parents for serious reasons to represent the interests of the minor.

Provision has also been made for the revocation of the special curator , in the event of serious breaches or the cessation of the conditions for his appointment.

Another consequence of the reform is the substantial powers of the Curator , and the obligation for the Curator to listen to the minor and allows the minor himself who has reached the age of 14, his parents, his guardian and the Public Prosecutor, to request, with a reasoned request, the revocation of the curator.

In this way, the separate original figures of the curator and the defender of the minor come to be concentrated in the new Curator.

News on the subject of assisted negotiation 

With the reform, the possibility of resorting to assisted negotiation is extended, which was envisaged only for separation, divorce and related amendments.

It has now also been extended to the protection of the children of unmarried couples, making it possible to resort to assisted negotiation to protect cases of minor children born out of wedlock , cases of maintenance for non-economically self-sufficient adult children born out of wedlock, and for the modification of conditions already determined.

Assisted negotiation, with the new formulation, may also be used to reach a consensual solution for determining the maintenance requested from parents by a non-self-sufficient adult child and for determining maintenance payments pursuant to Article 433 of the Civil Code and, in all cases, for modifying such agreements.

Failure to comply with family measures 

Very often, provisions regarding parenting time are not respected, and this behavior was already subject to censure. The new wording of Article 709-ter of the Code of Civil Procedure now provides that the judge may issue a provision specifying the daily amount due for each day of violation and/or non-compliance with the provision.

Technical consultants 

The new reform provides for specialization for technical consultants in family matters and the creation of a register of specialized technical consultants. They will be required, as is already the case for many professionals, including lawyers, to undergo specific ongoing training.

A specific single register is created from which magistrates and defence lawyers will be able to draw consultants.

Competences of the Ordinary Court 

The reform amends Article 38 of the implementing provisions of the Civil Code, regarding the jurisdiction of the Juvenile Court and those of the ordinary court.

The jurisdiction of the ordinary court prevails even in the case in which the proceedings before the ordinary court are introduced after the proceedings before the juvenile court are pending, the rule of prevention no longer being valid.

The only limit is represented by art. 709-ter cpc which, if referred to the implementation of measures issued by the court for minors, must necessarily be introduced before the latter, while where it is introduced autonomously and is proposed before the Ordinary Court, a transfer of the procedure is necessary before the first judicial authority. 

Removal of minors - new writing of art. 403 cc 

The article in its previous, completely outdated version was introduced during the Fascist era and provided for emergency removals by decision and carried out by the Public Authority without the provision of immediate review by a judge.

The article contained expressions that were certainly not in line with current sensibilities, such as "a minor raised in unhealthy or dangerous environments" or "people who, due to immorality or ignorance, are incapable of providing for his education."

The article has been completely rewritten and expressly provides for the Court's oversight of the child's removal proceedings. The conditions for such serious intervention concern cases in which the child is exposed to serious harm and danger to his or her psychological and physical safety.

The law now provides for detailed jurisdictional oversight of the actions of the Public Authority by the Public Prosecutor and the Juvenile Court , and for the parties and the minor to be heard.

Furthermore, adequate timeframes have been set for the verification process, which, by its very nature, must be rapid.

Second phase 

Within one year of the law's publication, therefore by the end of 2023, the Government is required to issue one or more legislative decrees to:

1) the creation of a single judicial procedure , a single procedure, for all disputes concerning persons, minors, and families, for all proceedings relating to the status of persons, minors, and families under the jurisdiction of the ordinary court and the juvenile court, with the exception of proceedings for the declaration of adoptability, the adoption of minors, and immigration matters.

2) introduce measures regarding assisted family negotiation : agreements reached following assisted negotiation may also contain binding real estate transfer agreements. The fairness assessment may be conducted by the defense attorneys with certification of the parties' agreement, and the agreements, provided with a permit or authorization, will be retained in original in a special archive held by the Bar Association.

Third stage

Also within one year of the publication of the law, the Government is delegated to adopt one or more legislative decrees for the establishment of the Court for Persons, Minors and Families , the so-called Family Court.

The Court will be divided into district and district sections and will replace the Juvenile Court.

The District Sections will decide as a single judge and will have jurisdiction over all proceedings de potestate, until now assigned to the TM on the basis of the provisions of art. 38 of the implementing provisions of the Civil Code, over provisions pursuant to art. 403 of the Civil Code and over alternative family custody pursuant to Law 184 of 1983; over proceedings relating to state actions (excluding, however, those relating to citizenship, immigration and international protection), those on the capacity of persons and over all disputes concerning civil unions, common-law cohabitation, minors, proceedings under the jurisdiction of the guardianship judge and compensation for damages within the family.

The District Sections , however, will make decisions as a collegiate body and will be assigned jurisdiction over civil, administrative, criminal, and supervisory matters, as well as matters relating to adoptability and adoption, currently vested in the Juvenile Court. Finally, they will also be competent to hear appeals against provisional or final decisions issued by the District Sections.

 

Armando Cecatiello Lawyer Milan Lugano family rights adoptions.