Child abduction and suspension of parental responsibility, in light of the Constitutional Court ruling no. 102 (May 29 2020).
With sentence no.102 of 29 May 2020, the Constitutional Court declared the constitutional illegitimacy of art. 574bis, third paragraph, of the penal code, in the part in which it provided that, following a sentence pronounced against the parent who committed the crime of abduction and maintenance of a minor abroad, the suspension of the exercise of parental responsibility should be applied deplano , rather than the possibility of the judge to order this measure after concretely assessing the best interests of the minor.
The Court, in fact, found the sanctioning automatism imposed by the legislator to be unreasonable, placing itself in the wake of two previous decisions, dated 2012 and 2013, on the subject of accessory punishment in crimes of alteration and suppression of state.
In both precedents, the Court stated that the interruption of the relationship between parents and children is justified only as a function of protecting the interests of the latter by declaring the unconstitutionality of art. 569 of the Italian Criminal Code (respectively in relation to Articles 566 and 567 of the Italian Criminal Code) in the part in which it establishes that, in the event of a conviction, the loss of parental authority (today responsibility) will automatically occur.
The Court specifies that the verification of the actual consummation of the case criminis it is worth, in itself, only as a value for measuring the parent's suitability or not.
The Consulta, in this ruling, seems to breathe deeply the renewal air that inspired our legislators to the filiation reform which, in addition to enunciating the rights and duties of minors, has finally replaced the term parental responsibility with that of parental responsibility thus drawing a new conception of the relationship between parents and children.
In motivation, the Court returns to underline the importance of this transformation principle, also recalling the introductory report to Legislative Decree No. 154/2013 or the New York Convention on the Rights of the Child, stating that through this new definition of relationships is attributed "I emphasize the different perspective vision that has developed over the years and is now to be considered a shared heritage: the parents-children relationships must no longer be considered having regard to the parents' point of view, but the superior interest must be highlighted ( best interests) of minor children ".
This principle is good to remember it is also contained in art. 24 of the Charter of Fundamental Rights of the European Union which provides that minors have the right to the protection and care necessary for their well-being; that in all documents concerning the very personal sphere of minors, whether they are carried out by public authorities or private institutions, the best interests of the minor are to be considered paramount or that the minor has the right to regularly maintain significant personal relationships and direct contacts and constant with the two parents, unless this could be harmful to the same.
Therefore, the prevalence of the child's interest over the right of each parent is clearly explained without, however, neglecting this fundamental figure in the family relationship.
Mind you: the negative opinion expressed by the Consulta on the sanctioning automatism is not prevented by the fact that in this case the illegal conduct of the parent is inherent in a particular gravity.
The Court, in fact, takes into account the substantive observations and emphasizes the hatred of this crime, a cause of prejudice for both the parent left behind which of course for the minor.
However, the family relationship, still motivates the Court, is a very complex individual dimension that takes place within different family models and not necessarily based on marriage; in it a sense of personal identity, biological, juridical bonds, feelings, aspirations, rights, duties, competences, ability of self-determination and protection intertwine. Therefore, safeguarding this delicate whole requires different and appropriate measures, characterized by flexibility and also by the timeliness of responses, since the time factor, when it comes to minors, is of fundamental importance.
In fact, the best interest for the minor is not that which responds to abstract parameters, but that which corresponds to the specific needs of the specific case, of that specific minor, and to the identification of which the minor himself must participate to the extent permitted by his ability to discernment.
Concrete example is offered by chance Šneersone and Kampanella c / Italy, which the ECtHR has dealt with for some years, condemning our nation for violation of art. 8 of the Convention.
This case is exemplary because it is an international subtraction.
In the present case, there were no doubts about the criminal liability of the mother, who had brought the child into Latvia, against the wishes of the father who remained in Italy, and acted illegally.
For this reason, the Juvenile Court had issued the return order provided for by the EC Regulation n.2201 / 2203 of 27 November 2003 (Brussels II bis).
Nonetheless, the ECtHR held that "detaching" the child from the mother, after assessing his well-being, constituted a violation of art. 8 in view of the obvious psychological trauma resulting from this sudden and irreversible deprivation.
While considering that the father took on the task of having the minor followed by a psychologist once he returned to Italy, the Court considered that this was not an equivalent alternative to the intrinsic psychological well-being in the strong, stable and peaceful ties between a child and you know mother.
In a few words, the interest of the minor can prevail, in some cases, also on the needs to follow the consequences of the law to the ascertainment of a criminal liability.
The ECtHR then affirms that the well-being of the child includes both the interest of the child in maintaining regular relationships with the parents or that these bonds are inherent in tranquility and serenity offering the child a healthy context in which to fully develop his ongoing personality.
Contact with the family can only be severed if it is particularly unfit.
Finally, it seems necessary to underline the importance of the constant and profitable connection required in these events between the Civil and Criminal Judicial Authorities.
In fact, there is a connection between the two Authorities precisely in order to evaluate which is the primary interest to be protected and the correct ways in which to pursue it.
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