28 August, 2017

What to do if an Italian child is carried away abroad without the previous express consent – Italian qualified lawyer specialized in family law

Discovering that his/her own child (figlio), Italian and resident (residente) in Italy, has been carried away abroad by the other parent without his/her own previous express consent could be a huge choc for anyone. In these cases, it is very important to appoint, as soon as possible, an Italian qualified lawyer specialized in family law who could be able to advise the client with his/her utmost care, also concerning the best possible legal solutions both from a criminal-law (penale) standpoint and from a civil-law (civile) standpoint. It shall also 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 legal procedures are the same ones even if the child, carried away from Italy, is a foreigner who usually lives in Italy.


How to proceed from a criminal-law standpoint


The parent, who discovers an occurred child abduction, may file a criminal charge (denuncia penale) to the competent Authorities. The international child abduction is, indeed, a felony (reato) pursuant to Italian law.


The Italian Criminal Code (Codice Penale Italiano) provides that, if someone kidnaps a minor without the previous express consent of the parents or of the person who acts like a legal guardian (responsabilità genitoriale), with the special purpose to carry the minor abroad, he/she is punished by means of a term of imprisonment from a minimum of one year to a maximum of four years. If a parent is the person who illicitly carries the minor abroad, he/she is also punished by means of the suspension of his/her exercise of acting like a parent or like a legal guardian (e.g. the old “father power on his child” – patria potestà). The punishment is reduced in case the minor agreed with the parent and the minor was older than 14 years.


It is worth noting that a criminal charge can in some cases be an empty weapon (arma spuntata) as the Italian Authorities will not have the necessary power to act and proceed abroad. The ghost of a criminal punishment, furthermore, could scary the person who keeps the child out of Italy and, consequently, it may make more difficult any attempt to resolve the situation by means of an out-of-Court proceeding.



How to proceed from a civil standpoint to request the repatriation


The best way to proceed requesting the repatriation of the minor is to proceed from a civil standpoint (procedure civili), i.e. filing a request for a civil decision. In this situation, it becomes very important to request a detailed evaluation of the concrete case, with the legal advice of an Italian qualified lawyer specialized in family law, also internationally. In particular, the child will have to be pinpointed (localizzato) and 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. It is possible, indeed, that the applicable law of the foreign country of destination may provide for a more favourable provision of law regarding child abduction cases, therefore it is appropriate to evaluate accordingly all the options.


The civil proceeding, which may seem more protecting, is the one provided for under 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.


For example, in case of an Italian minor carried away abroad, the repatriation must be requested to the competent central authority (Autorità centrale), located in Rome at the department of juvenile justice and of communities (Dipartimento per la Giustizia Minorile e di Comunità). It is also possible to file a request directly to the foreign country of destination of the minor, both via the respective competent central authority and directly to the judicial or administrative authorities. Furthermore, a civil proceeding must be triggered in the foreign country of destination (where the minor has been transferred) before the competent foreign Court.


Is it possible to be legally represented before the competent Court by an Embassy or by a Consulate?


No, because no Embassy and no Consulate 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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