What to do if an Italian child, resident in a foreign country, is carried in Italy without the previous express consent
Marzorati Law Firm | Italian Lawyers & Law Firm in Italy | Divorce in Italy
Even if the child (figlio) is an Italian citizen, it may be illicit his/her transfer in Italy in case the minor is usually resident (residente) abroad. When one of the two parents (genitori) proceeds like that, without a previous express consent of the other parent, it is very important to appoint, as soon as possible, an Italian qualified lawyer (Avvocato Italiano) specialized in family law. The mother (madre) or the father (padre) indeed, must be appropriately advised about possible instruments to trigger in order to obtain the repatriation (rimpatrio) of the minor. It shall always be evaluated also the position of the other parent, in order to evaluate the reasons which have caused the unauthorized expatriation. Indeed, it is possible that, pursuant to the law applicable to the concrete case, no case of child abduction has happened but, on the contrary, the parent is duly authorized to carry away abroad the child and therefore is also able to get legal protection. The same proceeding is applicable also in case the child, carried in Italy, has a foreign citizenship and he/she is resident abroad.
How to protect himself/herself by means of the application of foreign law
In this situation, it becomes very important a detailed evaluation concerning the concrete case, with the legal advice of a Professional specialized in family law, also internationally. In particular, the applicable law in full force and effect in the foreign country of destination will have to be examined as well as the possible existence of the international conventions. In this way, it could be possible to choose the strategically best proceeding (procedura strategicamente migliore) also in connection with respective timing and expenses. The country of origin could have not ratified The Hague Convention 1980 (which is usually the applicable convention in these cases) and could have undersigned a bilateral agreement with Italy which may govern this kind of situations. It exists also the possibility that no agreement at all has been entered into by the two countries: when it happens, the central authorities of the country cannot intervene and cannot activate all the instruments of cooperation provided for under International Treaties, therefore who is claiming that there is a child abduction has to proceed by means of appointing an Italian lawyer specialized in family law, who may trigger an ordinary legal proceeding before the competent Court.
In some cases, indeed, the applicable law of the foreign country of destination may provide for a more favourable provision of law regarding child abduction cases, and thanks to this provision of law it may be obtained the repatriation of the child in a quicker and easier way.
How to request the repatriation of the minor by means of The Hague Convention 1980
The more common international civil proceeding, and generally speaking also the more protecting one, to obtain the repatriation of the minor, is the one provided under the international laws and regulations, in particular The Hague Convention dated 25 October 1980, which orders the repatriation of the minor to the country where he/she usually resides.
Also in this case, however, it is recommended to appoint a Professional specialized in International Law, because every signatory country of the Convention provides for a different civil proceeding as well as a different timing.
In case of a foreign minor carried in Italy, the repatriation has to be requested before the competent Central Authority (Autorità Centrale) of the country of residence, or it could be alerted the Central Authority for Italy, located at the Department for the Juvenile Justice and Communities in Rome, as well as directly before the competent Italian Judicial or Administrative Courts. Furthermore, a judicial legal proceeding has to be triggered in Italy with the legal advice of an Italian qualified lawyer specialized in family law.
Is it possible to be legally represented before the competent Court by an Embassy or by a Consulate?
No, because no Embassy (Ambasciata) and no Consulate (Consolato) may legally represent the parent who abducted the child or the other one, who was subjected to this abduction. Embassies and Consulates have roughly a role of support of the citizen.
Marzorati Law Firm is specialised in family law, also internationally, and its lawyers usually deal with separations, divorces, child support and family support, as well as with international child abduction cases. To appoint timely an Italian qualified lawyer, specialized in family law, is essential to activate as soon as possible all the informational channels for finding the child as soon as possible as well as filing the competent authorities to decide about the child’s return. In order to advise all its clients all over Italy and worldwide, Marzorati Law Firm has also developed a network, made also of at least a barrister/solicitor, an attorney-at-law, an abogado, and an avocat à la cour, all qualified in their respective country of practice.
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