Group of Specialists (CJ-S-CH)
Introduction to the Guidelines
Text of the Guidelines
Related texts and documents
Databases, Materials and Links
Strasbourg, 30 June 2008 CDCJ (2008) 27 rev
[cdcj/cdcj et comités subordonnés/83e réunion plénière du CDCJ/ documents de travail/CDCJ (2008) 27 rev e]
EUROPEAN COMMITTEE ON LEGAL CO-OPERATION
“CROSSING BOUNDARIES IN THE ADMINISTRATION OF
The opinions expressed in this work are the responsibility of the author(s) and do not necessarily reflect the official policy of the Council of Europe.
During the Warsaw Summit of the Council of Europe (2005) a decision was made to initiate the programme “Building Europe for and with children”, whose objective was the definitive formulation of guidelines in Europe for the access to justice and place in judicial proceedings of children.
In Lanzarote (October 2007) the 28th Conference of European Ministers of Justice was held, when Resolution No 2 on child-friendly justice was adopted.
Such a provision assigned the task of preparing European Guidelines on child-friendly justice to the following specialist commissions:
The European Committee on Legal Co-operation (CDCJ),
The European Committee on Crime Problems (CDPC),
The Steering Committee for Human Rights (CDDH),
The European Commission for the Efficiency of Justice (CEPEJ).
These commissions will be assisted by other competent bodies of the Council of Europe.
The European Committee on Legal Co-operation (CDCJ) will gather elements for European guidelines on child friendly justice with particular focus on children's access to and place in the civil and administrative justice systems.
The task will be divided between the concerned committees who will, in their respective field of competence:
l take stock of the existing legal standards relating to children's rights in Europe;
l identify possible gaps and lacunas in the field;
l identify existing good practices ensuring that children receive adequate information, are represented and have the right to be heard;
l make proposals that would encourage international cooperation and further improve the situation and the participation of children who have to deal with the justice system.
In particular, experts will provide, throughout their reports, a check-list of situations where children need to access justice and give an overview of child-friendly procedures implemented in member states while identifying and taking stock of the existing universal and regional international legal instruments dealing with children.
The reports above, to be produced by 30th June 2008, will be considered and discussed at the
Stockholm Conference which will take place between 8th – 10th September 2008.
The objective of this report is to provide information on the position of the child in relation to administrative justice, both in the phase that precedes access to instruments of justice, and in the actual exercise of legal acts recognised to the child, during both the successive and final phases of executing the legal provisions adopted.
Family mediation will also be taken into account, as an alternative instrument in resolving family disputes.
By administrative justice, it is intended, within the limits of this report, to refer to the relationship between the administrative authorities and children.
The final purpose of the report is therefore to examine the guarantees of the community regulations recognized to children as a safeguard and protection of children’s welfare, also with reference to migrants, refugees and asylum seekers.
It is nevertheless necessary to emphasize that intervention in the care of the child can occur at a judicial level, generally when a coercive intervention is necessary, also at an administrative level, broadly speaking when there is the consent of the child’s representative, and also consent to hearing the child who has the capacity to form his or her own views.
It is however difficult to distinguish clearly between the two types of intervention1, in that the different sectors of legal rights do not arise totally autonomously; overcoming the traditional separation of powers would therefore be desirable in order to facilitate their effective coordination, and thus follow the best possible route for the well-being of the child subject to the proceedings.
It should be underlined that jurisdiction for children’s matters represents the weak part of the judiciary, in that for an action to have effect, the collaboration of the administrative bodies is necessary. In particular this can be seen with the removal and foster care of children, which requires the intervention of social services to resolve the matters at hand.
Furthermore, during the execution of court orders it is not possible to ignore the involvement of administrative bodies, in order to reduce the trauma of a forced enforcement of orders of the court.
In this respect reference is made once again to circumstances in which judicial bodies must operate to resolve problems relating to the child, pursuing rules which are administrative in nature (a prime example being the jurisdiction of the Italian Juvenile Court).
It is this perspective, specifically the desire to overcome the separation of functions, which directs this report, focusing on the objective to identify solutions proposed at an international or national level to the benefit of children, and highlighting the cooperation between judicial and administrative actvities, and a convergence of intent and intervention.
On the other hand it must be noted that the position of the child, also in respect of legal and administrative wardship, cannot be studied in isolation, but must take account of the relationships, not to be ignored, with the nuclear family of origin or with those carers of a different nature (with legal authority) who exercise the same parental authority. For this reason, this report considers certain aspects of the rights of the family, considered as indispensable in obtaining a complete picture of subjective situations connected to the status of the child.
The report will be conducted through the analysis of community national legislation, prioritising the approach of promoting the rights of the child, as requested by community strategy which was carried forward also by the recent Guidelines for the Promotion and Protection of the Rights of the Child adopted by the Council in December 2007.
The Check List
This report contains:
1. A consideration of the position of the child in the legal system.
We have analysed the administrative instruments which are indispensable in recognizing the rights of the child, with particular attention paid to the right to a name, citizenship, the release of certification on civil status, and access to administrative documentation.
The examination of the domestic and international laws has indicated of necessity for the child to avail itself of the aid of the adults concerned (parents or those exercising parental responsibility) in their relationships with the state authorities.
2. The place of children in judicial proceedings.
It has proved necessary to describe preliminarily the way in which children exercise their rights, and therefore when the State recognises legal capacity and the individual’s capacity to act.
The role of the child in judicial and administrative proceedings is then studied, with particular attention to remedies available in their favour in cases involving family separation and abandonment. Therefore the position of unaccompanied minors is also analysed.
3. Recognition of the rights of migrants, refugees and asylum seekers.
In the light of the above description, situations are listed below in which access to administrative acts relating to the child are provided for:
- Request for birth certificate;
- Access to information and documentation regarding the child’s origins;
- Access to information regarding marriage and the release of such documentation;
- Access to information regarding the consequences of the death of persons with custody of the child;
- Access to information regarding the acquisition of citizenship;
- Request for documents attesting to citizenship;
- Access to information regarding reuniting of the family abroad;
- Proceedings for reuniting the family;
- Recognition of the capacity to act (specifically in contractual and judicial contexts and in the execution of legal proceedings);
- The right of the child to be heard;
- Instruments for the guardianship of the child in proceedings (eg. guardian ad litem; legal representative, etc.);
- Instruments for the support of the child (the role of social services, the family mediator, and those exercising parental responsibility);
- The rights and position of the migrant, stateless, refugee and asylum seeker child.
SECTION I: The place of children in the judicial system
1. Civil Status
A person's civil status is his or her name, filiation and marital status.
Acts of civil status exist for citizenship, birth, marriage and death, and are released by the four correspondent Civil Registries (the Citizenship Registry, Registry of Births, Registry of Marriages, and Registry of Deaths).
Each of the Civil Registries above is authorised to issue certified copies of documents filed with it attesting to the civil status of each individual.
As far as children are concerned, as the subject of this report,it is important to distinguish:
l Citizenship: see below.
l Birth: the birth certificates are issued by the State Officials of the state in which each individual is born.
In the event that a subject is born in a country other than where the parents were born, it is necessary to carry out a double registration in the civil registers of both countries, that is the country of birth and the country where the parents have citizenship. The registration in the civil state registers of the state in which the child was born occurs automatically, as the medical staff present at the birth have a legal obligation to report the birth to the appropriate authorities. However, with regard to the registration in the country where the parents have citizenship, an authentic and complete copy of the document of birth is transmitted to that country. Such a transmission is the subject of agreement between the states, which must integrate the domestic regulations concerning international private law.
Important examples of such agreements include:
- the agreement between Spain and Italy: formalized with the “Agreement on the exchange of civil status documentation and the waiver of legalization requirements for certain documents”, signed in Madrid on 10th October 19832. Such an agreement provides that the state officials of each of the two States transmit a complete copy of the documents recording the birth entered in their own domestic registers and concerning the citizens of the other state. The transmission must occur when the person to whom the registration pertains is a citizen in the other state and thus takes citizenship there. Italy and Spain provide for an automatic reciprocal transmission of the documents concerning the birth, at no cost to the parties involved, at least once a month. In addition, the state officials of both countries can make a request to obtain certified copies, at no cost, from the archives held by the other country.
- the agreement between the United Kingdom and Italy : in order for Italian citizens who have established their residence abroad to register births, they must first be registered in the Registry of Citizens Residing Abroad (AIRE). Children of parents of whom at least one is an Italian citizen, even if they are born abroad and have citizenship in another country, are Italian citizens and, consequently, their births must be registered in Italy. In order to register a birth it is necessary to bring the following documents to the Italian Consulate in the UK: (I) birth certificate issued by the Civil Registry of the country of residence, translated into Italian by an official translator and authenticated by the Ministry of Foreign Affairs of the country of residence (for all signatories of the Hague Convention of 1961) and (II) documentation proving the Italian citizenship of at least one of the parents (identity card, Italian passport, certificate of Italian citizenship)3;
- the bilateral agreement between Germany and Italy: signed in Berlin on 31.5.1937 and brought back into force with the exchange of note of 20.11.1952 (published in the “Gazzetta Ufficiale” No.291 of 16.12.1952)4.
The agreements specified above are an integral part of the terms stipulated by the ICCS5.
The International Commission on Civil Status (ICCS)6 is an inter-governmental body comprising 16 States: Austria, Belgium, Croatia, France, Germany, Greece, Hungary, Italy, Luxembourg, The Netherlands, Poland, Portugal, Spain, Switzerland, Turkey and The United Kingdom. It has its seat in Strasbourg (France), at 3 Place Arnold, the address of the premises of the Commission's Secretariat General.
Each ICCS member State sets up a national section composed generally of professors of law, judges, representatives of ministries or administrations charged with supervising civil status, together with local registrars. Made up of chairpersons of the national sections assisted by a number of experts, the ICCS Bureau meets annually in late March, usually in Strasbourg, and the Commission holds an annual General Assembly in September, in one or other of its member States.
The purpose of the ICCS, as defined by the instruments by which it was set up and by its rules of procedure, is as follows: “to compile and keep up-to-date documentation on legislation and case-law setting out the law of the various members in matters relating to the status of persons, to the family and to nationality”; “to provide, on the basis of this documentation, information to the authorities referred to in Article 2 of the Protocol of 25 September 1950” (i.e. government departments, diplomatic missions, consuls-general, consuls, vice-consuls or consular agents of each High Contracting Party); “to carry out any studies and work – in particular by drawing up recommendations or draft conventions – aimed at harmonising the provisions in force in the member States on these matters”; to seek legal and technical means for “improving the operation of civil registration in the member States”; to “coordinate its activities with those of other international bodies” which are also dealing with the law of persons and family law.
In all ICCS States, the birth of a child is declared to the registrar and immediately entered into the register of births (as to entries on the birth certificate). However, from one State to another solutions vary, firstly as regards children alive at birth, but dead even before their registration, with a distinction in France as between viable and non-viable children, and secondly regarding stillborn children whose weight or period of gestation is sufficient to require mandatory registration. Indeed, from the standpoint of civil status, at times only the birth of live children is taken into account, without regard to whether they were lifeless when registered; at other times, on the contrary, only the absence of life on declaration is taken into consideration, which boils down – for civil status purposes – to assimilating children declared as lifeless to stillbirths. This choice of legal policy has implications for the nature of the instruments drawn up by the registrar: birth certificate and death certificate, or only one of the two.
As a rule the birth certificate of a child alive on declaration indicates its name and given names. Such a child is entered into the family record booklet where a booklet of that type exists. Various considerations have prompted certain countries to extend this system to the child born alive, but dead at the time of its declaration to the registrar and even, occasionally, to the stillborn child7.
Furthermore this is also seen beyond the records on the registration of the birth.
l Marriage: the marriage of the child is governed by the domestic laws of the country in which the child is a citizen. The evaluation of the suitability of the child’s age to enter into a union of marriage is subject to the existence of his or her capacity to form his or her own views and psychophysical maturity, perceived generally as not to be ignored.
As far as Italy is concerned, Article 84 of the Civil Code8 states that minor children cannot enter into marriage9. The same article also sets out an exception: a child who has reached 16 years of age can be authorised by the Juvenile Court to enter into marriage. The application must be presented personally by the child. The Juvenile Court decides by an Order, which is issued in the judge’s chambers after being satisfied as to the psychophysical maturity of the child, the seriousness of the reasons given and the foundation for the reasons adopted; and also after having heard from the Public Prosecutor, the bride and groom-to-be, and the parents or guardian. The Order is communicated to the Public Prosecutor, the bride and groom, the parents, and the guardian. Within 10 days of the communication, an appeal can be made against the Order, by application to the relevant court by way of appeal. The court of appeal makes a decision which cannot be contested, and which is issued in chambers.
Without such authorisation, according to the provisions of canon law, any marriage taking place in the parish cannot be recorded in the civil state register. If a marriage is recorded, it can still be opposed. A child who is over 16 years of age who marries with the necessary authorization, becomes an emancipated child.
If one of the two parties wishing to marry is a foreign minor, for the validity of the marriage it is also necessary to have the following documentation: a valid passport; no impediments released by the Consulate or the Embassy of the country of origin (with an original signature of the Prefecture if the country concerned is not a member of the European Union); and certificates attesting to their single status and residence (if the foreign child resides in Italy).
Specific exceptions are set out for American, Austrian, and Swiss citizens.
As far as refugees are concerned, it is necessary to obtain a declaration that there is no impediment to the marriage from UNHCR (United Nations High Commissioner for Refugees).
It is not however necessary to be in possession of a Residence Permit to marry in Italy.
The law governing the marriage of minor children is set out at a European level by the Reccomandation No. 1723 on coactive marriage and marriage below the age of majority , Rec 1723 (2005) of the Council of Europe. The provisions are specifically aimed at preventing and opposing violent sexual offences committed against adults, children, people of diverse sexual orientation, the disabled and migrants. Provision No.1723 defines the various forms of violence, considers their social, economic and cultural impact, and the development of mechanisms of information on and the sensitization of the phenomena: it further makes direct provisions to protect the victims, and to sensitize the information on equality and to oppose discrimination.
In conclusion, it has to be examined Article 3 of Regulation (CE) 2201/200310,concerning issues relating to divorce, separation of the married couple and annulment of the marriage. Seven exclusive substitute criteria are set out, available as an alternative route, with reference to the residence of one, the other, or both partners. Such an article is applied to any dissolution of a marriage effected between adults, as well as between children.
l Death: the death certificate of a minor must be transmitted by the medical authorities who have certified the death directly to the state civil officials, to enable the latter to execute the necessary registration requirements.
In the event that the death of an Italian child occurs abroad, the state civil officials where the child died must transmit a complete copy of the death certificate to the country in which the child was a citizen.
Perinatal death continues to give rise to specific civil status issues, in respect of which two cases may be contemplated : (I) that of the stillborn child and (II) that of the child that, although alive at birth, dies before having been registered at the registrar’s office.
Despite its infrequent occurrence, such a case is not purely academic, all the less so as the deadline for registering births varies from one state to another (as a rule, this deadline is set at three days in France, the Netherlands and Switzerland ; five days in Luxembourg ; one week in Germany and in Austria ; eight days in Spain ; ten days in Greece and in Italy ; 15 days in Belgium ; 20 days in Portugal ; 21 days in Scotland ; six weeks in England, Wales and Northern Ireland ; 30 days in Turkey).
As far as civil status is concerned, the medically observed situation of life or death is dealt with under the legislation of ICCS States in a variety of ways, with the result that the registration of the child entails legal consequences that vary according to the legislation concerned.
« The child shall be registered immediately on birth » ; thus reads the principle worded in the form of a postulate in Article 7-1 of the New York Convention on the rights of the child that has been signed and ratified by all ICCS States. However, although the Convention clearly lays down the upper age limit of its beneficiaries (18 years unless the national law provides for a lower age of majority), this does not apply as regards the moment when life starts, and not every child conceived will necessarily be registered. As a rule, it is the child’s physiological state on expulsion from the mother’s womb that determines the nature of the instrument drawn up by the registrar as well as – to some extent – its content. Several States have recently modernised their legislation on this point by discarding various rules that have become too demanding at a time when, with most deliveries taking place in health institutions, there is no longer cause to fear improper sollicitation of legacies and when efforts are made to take more account of the the distress of parents who are deeply upset by the loss of their child. Praiseworthy though it may be, this compassion cannot be given too free a rein lest it detract from the reliability of civil status and its traditional role as the recorder of births, deaths and the main events throughout people’s lives. Consequently registrars do not record fetuses or products of abortion below certain thresholds. In Belgium (Section 326 Cc), in France (Ministry of Justice Decree of 3rd March 1993, I 3-7), in Greece (Section 37. Para. 3 of Law 344/1976), and in Luxembourg (constant administrative practice), there is no registration if gestation is less 180 days.
In Spain (Section 45 LRC, Sections 171-174 RRC) and in Switzerland (Section 66 sub-para. 1 OEC), stillbirths occurring before the end of six months of pregnancy are not registered, nor are they in Portugal if they occur before 22 weeks of pregnancy (Section 209 CRC).
In the Netherlands (Section 19 i, Schedule 1 BW and the Inhumation Act of 12 April 1995) and in the United Kingdom 24 weeks of pregnancy is the limit below which no civil status instrument is drawn up. In Italy this limit is set at 28 weeks.
In Germany (para. 29, sub-para. 3 PStV – Decree on implementation of the Civil Status Act) and in Austria (P 23.4 DA and para. 8 sub-para. 1 Z 2 of the Midwives Act) « miscarriages » are not entered into civil status registers when the child that fails to survive weighs less than
These reference thresholds correspond to WHO recommendations (22 weeks’ amenorrhea or a weight of 500 grammes) and are tantamount to a presumption of viability, a physiological capacity of survival on the part of the child conceived.
Finally, in Turkey, no civil status instrument is established for stillbirths whatever the length of the period of gestation (Sections 16 of the Population Act and 84 of the Regulations on the setting up, functions and operation of civil status bodies)11.
2. Registration of the birth and the assumption of further rights of the child : the right to a name
The right to a name and citizenship are guaranteed at an international level.
The registration of the birth triggers such rights which not only guarantee the right to an identity in that the name of the child is recognised, but it also allows individuals to enjoy the services and protection of the single States. In other words, this is the first right arising which opens the way to recognising other human rights12.
Although the Declaration on the Rights of the Child adopted by the UN on 20th November 1959, does not contain specific regulations on the registration of the birth, Article 4 of the Universal Bill on Human Rights of the 1966 International Covenant on Civil and Political Rights (ICCPR) specifies that: “Every child shall be registered immediately after birth […]”.
Also Article 7 of the 1989 UN Convention on the Rights of the Child (CRC) establishes that: “The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.”.
Although proclaimed at an international level, any violation of such a right does not result in any type of sanction for the states failing to provide suitable measures to guarantee the registration.
However any violation of this right is considered contrary to the right of the family protected by Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
In this sense the European Court ruled on fundamental human rights in the case of Karl Delose vs. United Germany and Holland, which sanctioned the illegitimacy of a violation of the right to a family through the absence of a birth certificate.
In Mark Eiks vs. Belgium, the European Court of Human Rights also clarified that the protection of the right to a family must be extensively implied so as to include the registration of the birth; such a right arises independently from the circumstances of the child whether he or she is the child of married or cohabiting partners13.
The implementation of such a right is indispensable from the moment of the registration of the birth, which is also fundamental to apply national policies determining the specific rules based on the age of the child, which in itself is only attainable obviously following the registration which contains the exact date of birth. This would be relevant for instance for legislation on the minimum working age, the capacity to enter into marriage, and in general the capacity to act, but also practical aspects of primary importance which for example comply with obligations regarding vaccinations.
It is therefore indispensible that each individual is registered with a document of their birth.
In the United Kingdom, under the British Nationality Act 1981, the registration must be made within 42 days of the birth with the appropriate declaration by the parents in hospital or at the local Register Office14.
Importantly, the declaration can be made by either the mother or the father if the parents are married.
If the parents are not married, it is necessary to effect the declaration together. If the father cannot be present, he can make a signed statutory declaration on the birth certificate that he recognises his paternity of the child. In the same way, if the mother cannot be present, she may also provide a statutory declaration to document the paternity when she intends to insert the father’s details on the birth certificate. If there is a parental responsibility agreement or a court Order has been made regarding parental authority, such a document must be shown to the registrar.
When neither relative is available to carry out the declaration, the registration must be carried out by the appropriate institute or hospital in which the child was born, or by someone present at the moment of birth, or by the individual with responsibility for the newborn.
It is always possible to proceed to add missing paternal details to the birth certificate, or to correct any errors, or modify details such as the name.
It must be stated that particular rules are laid down in the Human Fertilisation and Embryology (Deceased Fathers) Act 2003 for a child born using medically assisted reproduction techniques, where the father dies, thus permitting recognition of the child and the consequent connected rights.
In general it can be said that all member States have rules in force which guarantee the registration, and the differences arise only in the time limit for the registration. In France, for example, it is obligatory to register within three days, after which time recourse must be made to a court to proceed with the registration.
It is furthermore provided that the Consulates may proceed to effect the registration in the country of origin of the child born abroad; this point is considered further below.
The same international legal provisions which guarantee the registration must also be based on the foundation of the right to a name which is necessary to identify and distinguish persons.
Italian law dealing with the implementation of cross-border guardianship is contained within the civil code and is in any event enforced at a constitutional level15. Since for most community systems the child acquires the name of the father, whether born to married or unmarried parents (if the father recognizes the child), in the absence of recognition the child takes the name of the mother. In the case of subsequent recognition of the minor child by the father, assignment of the surname is not automatic and must be authorized by court with jurisdiction over children, which will confirm that it is in the interests of the minor to do so16.
Incidentally on this subject reference should be made to the fact that the right of the child to be heard is not automatically provided for. However the recent tendency to give priority to their point of view in decisions concerning them, could be interpreted extensively to reflect those provisions which explicitly sanction such a practice.
Reference can be made, for example, to Article 316, Para V, of the Civil Code (“CC”), which permits a child of fourteen years of age to be heard if in opposition to the wishes of the parents on issues of particular importance. Again, Article 371 CC states that a child in care who has reached just ten years of age must be heard on the place of his “upbringing”, as well as the preparation of studies or the exercise of an art, vocation or profession, in addition to the provisions already set out on the subject of adoption.
Notwithstanding such rules and the existence of specific international regulations on this point, the Italian legal regulations are hesitant to hear the child, as they seek to limit the psychological trauma; however this is a risk which in fact does not exist, if the hearing occurs with the support of experts.
On the other hand the United Nations Convention on the Rights of the Child, signed in New York in 1989 makes provisions often based more on policy than regulatory in nature.
Article 12 states that the child has “the right to express their own opinion freely on whatever subject, which must be given the right weight in relation to the age and maturity of the child. To such an end, in all judicial and administrative proceedings which involve a child, the occasion must be offered for the child to be heard either directly or indirectly through a representative or appropriate institution, in accordance with the national legislation”.
More significant would be the European Convention on the exercise of the rights of children put forward by the Council of Europe, signed in Strasbourg on 25th January 1996 (and adopted in Italy with Law No.77 of 2003) which contains the first continental catalogue of the rights of children. Article 3 (the right to be informed and to express their own opinion in proceedings) for example, provides that “the child has the right to be informed of any possible consequences of the application of their opinion and the possible consequences of every decision”.
In line with such provisions, the Danish system not only provides for an obligatory hearing of the child who has reached twelve years of age, but in practice has shown the tendency to hear children as young as five to eight years old inclusive.
The right to a name is also expressly sanctioned in the French system17 which lays down the necessity of registering in the civil state registers the date of birth, the name and the surname of the child, as well as the parents personal details. Article 5718 of the Civil Code established that the name at baptism of the child must be jointly chosen by the parents. Such a right is irrevocable to such an extent that in cases where the parents are unknown, the State official chooses three names, the last of which becomes the child’s surname.
It is furthermore provided that the name must not cause prejudice to the child, and thus when a selected name appears contrary to the interests of the child, the civil state official informs the Public Prosecutor who can pass the matter to a judge in the family division. The judge may then select a new name which conforms to the child’s interests.
Equally for abandoned children a birth certificate must be created which indicates the presumed age, gender, and the name which the child will be given.
It is furthermore provided, at Article 60 CC and SS, for a judicial proceeding whose object is the change of both the name and the surname; in this respect it is important to note the intervening reform with Law No.2007-308 of 5th March 2007 – in force from 1st January 2009 which permits the child to pursue such a remedy through his or her legal representative, with the specific provision of the obligation to be heard at 13 years of age.
Also in the English legal system it is possible to change the name within 12 months of the registration, but after this time a variation can only be effected after having demonstrated that the new name was in use in the 12 months preceding the change. Such a request can only be made by the parents or guardian ad litem.
Changing the surname is not generally permitted unless the married parents make a request to change the surname from that of the father to that of the mother, or vice versa. A child of 16 years of age can only make an application to change name with the consent of both parents.
3. Balancing children’s rights in administrative law
There are numerous cases in which the child’s rights must be safeguarded concerning issues which may also involve public institutions as well as other bodies.
It appears opportune to analyse a sector in which administrative action can be held out as a contrast to the rights of the child to his or her own identity, in that potentially it can be detrimental to other rights protected by the regulations, namely privacy.
Reference is made to the scenario in which the child, adopted or born following heterologous assisted reproduction (that is the process involving the contribution of a party from outside of the couple), needs to know his or her biological parents, both to reconstruct his or her own past and therefore for the best possible psychological development, and for medical health reasons for cases requiring essential treatment for genetically transmissible illnesses.
It is evident that such a right conflicts with the right of the parent to guaranteed anonimity19, as provided by the public bodies responsible for the storage of data.
The problem occurs when, for example, the child in question makes a request to access their own birth certificate in order to obtain the personal details of the parents, and such a request is refused as a result of administrative regulations which must also safeguard the privacy of the biological parents.
At an international level, there are numerous conventions which aim to safeguard the best development of the child, to protect identity and, when possible, to maintain the relationship with the birth parents. In this respect Articles 7 and 8 of the Convention on Children’s Rights, signed 23rd November 1989, sanction the right to know and to be brought up by one’s own parents, as well as the protection of identity. Also, Article 24 of the Universal Declaration of Human Rights sanctions the right of every child to have a regular personal relationship and direct contact with both parents, except where it would not be in their best interests.
Neither must we neglect the convention dealing with international adoptions, actually favouring the severing of relationships with the biological family, although not impeding them, whilst national legislation permits continuing ties with the biological parents20.
On the other hand, even the protection of personal details, and therefore refusing the right to access, is guaranteed by the different international conventions, as well as by the national laws.
First of all, Article 12 of the Universal Declaration of Human Rights sanctions the right to privacy in general, and the confidentiality of family life and also the protection of each individual from illegitimate interference.
At the same time, at a European level the right to protection of data is assured. Article 8 of the European Convention on Human Rights in guaranteeing confidentiality, includes the exclusive restrictions “in accordance with law” and “necessary in a democratic society”.
Notwithstanding the signing of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (Strasbourg, 28th January 198121, an appropriate regulation has been put into effect with the Directive on the protection of personal data (95/46/EC) and the successive integration, contained in the Directive 2002/58/CE of the European Parliament and the Council of 12th July 200222.
Also more recently the Charter of Fundamental Rights of the European Union of 7th December 2000 signed in Nice, protects, at Article 8, the personal details of each individual.
To the above we must add that also the European Court of Human Rights has extensively interpreted the community regulations on the subject of privacy, clarifying that the collection of data by State officials must be covered by confidentiality.
In respect of community regulations, the single member States have appropriate regulations requiring the appropriate authority to ensure the correct application of the laws on privacy, and the way that the data is dealt with. Under the Italian system, the code of privacy is safeguarded by the Legislative Decree of 30th June 2003, No.196, with all its modifications and updates. In France Law No. 78-17 of 6th January 1978 concerning information technology, files, and civil liberties, has likewise instituted the Commission nationale de l’informatique et des libertés; in the United Kingdom the Data Protection Act was repealed by the Data Protection Act 1988 (Information Commissioner).
The laws cited do not yet address specifically the inherent problem of the position of the child in accessing data, instead limiting themselves to the protect more generically the data concerning the child. For example, some provisions sanction, as in the Italian system, the prohibition on publishing and divulging news and pictures which could permit the identification of a child even in judicial proceedings (in non-criminal contexts), or they authorize dealing with the said details when it is in the public interest, such as to provide assistance to children23 , or, as under English law, which denies access to data by individuals acting in the name of the child (for example the parent), in which case the details must remain confidential, as set out by law.
In all cases in which the child wants access to data or it is necessary, even in a legal context, to protect the child, the child must be represented by a parent or a guardian, in accordance with the legal provisions in force in the different States.
It is must be added that the Data Protection Act 1998 at Article 66 which concerns “Exercise of rights in Scotland by children”, permits a child who has demonstrated a capacity of general understanding to exercise the rights mentioned in the act, adding that “a person of twelve years of age or more shall be presumed to be of sufficient age and maturity to have such understanding”.
The solution to the problem of the balancing of interests between privacy and access to data, even with reference to the child, is not therefore eased by the community regulations, as with the national regulations, protect privacy and also access to data by instituting a series of reciprocal exceptions to the general rules set out in the single regulations, but without providing a suitable remedy when the two rights conflict with one and another in a particular case.
Under the Italian system, the balancing of such interests has been the subject of vigorous debate, settling to the advantage of the right to privacy.
Considering that the Italian system only recognises homologous assisted reproduction (that is the procedure in which the genetic make-up of the child matches exclusively the couple to whom the child is born), the problem in question only presents itself in the cases of adoption.
Prior to the reform of 200124, the national law, which was lacking in this area, prevented any type of search for a biological mother who had expressed a wish to remain anonymous. Such a situation was implied from the combined effect of the regulation25 which sanctioned the interruption of any type of tie to the natural family with Articles 28 and 7326. In the absence of an express legislative provision, case law and overwhelming doctrine provided the anonymous party with the best possible guarantee for the well-being of the child, who was thus safeguarded from illegitimate interference and also protected by its status as the legitimate child of the adoptive family; an ideal solution which also even protected the biological parent from using abortion as a deterrent.
Such a restricted interpretation was also based on the regulations for access to administrative documents27, which prevented data from being divulged in cases requiring the protection of confidentiality; access was only approved in the defence of legal rights. The principle of administrative transparency thus conflicted with that of privacy, and the limitations of each were unclear. The difficulty lay in the fact that between the relevant laws (administrative laws and those guaranteeing privacy and the regulation at a constitutional level for the protection of identity and health28) there was no connection to facilitate a clear balancing of interests.
Such a complex situation is only partially resolved by the modification of the laws on adoption, which have introduced a graded system for access to information. The right of the child to know of his adoption has been explicitly sanctioned, however if there are serious and substantiated reasons29, the court now has the discretion to provide information on the birth parents exclusively to the adoptive parents. Although the arrangement of the provisions in this area would seem to favour in most cases, for the conditions described, the right to identity over the right to privacy, the same regulation identifies an important reason to prevent access, namely the express declaration that the biological parent wishes to remain anonymous. In other words, the right of the adopted child to know their own identity is firmly subject to the prevailing necessity of respecting the confidentiality of the parents30.
In contrast to that sanctioned by Italian legal provisions, the English legal system has been opened up to recognize the right to know one’s origins in cases of adoption, and is inclined, to the contrary, to guarantee the anonimity in the event of assisted reproduction.
If the Adoption Act 1976 and the Children Act 1975 already recognised the right of the adopted person to know their origins, for “children’s welfare”, more recently the Adoption Act 2002 better set out the way to exercise such a right. The only obstacle to the possibility of obtaining a copy of the birth certificate31, namely the need to provide the name with which the person in question was registered at birth, has been overcome by introducing an obligation on the part of the adoptive parents to communicate the birth name to their adopted child.
Contained within the General Register, the Adopted Children Register has been specifically instituted to record adoptions. Obtaining details of the birth mother, and the father if registered, is guaranteed to the adopted person by statute, through direct access to the birth certificate following a request to the General Register Office. Alternatively, a request can be made to access birth records to the agency or local authority which oversaw the adoption procedure and which retains all information relating to the adoption.
The possibility of accessing records varies depending upon the age of the adopted person.
A minor child can only verify whether there are any impediments to marriage, whereas persons of majority age can access details of their birth parents32, the only limit being the existence of circumstances which would indicate advising against such access.
It is important that under Article 62 of the Adoption Act, following the request by the child, the agency must pursue all procedures to ascertain the position of the parents or the child’s guardian, and also “the views of the child, if the agency considers it appropriate to do so having regard to his age and understanding and to all the other circumstances of the case”. The agency can therefore reveal information if it considers it appropriate for the welfare of the child.
However, the Court has the power to prevent access when exceptional circumstances arise which lead it to confine such a right to safeguard the interests of the birth parents and the well-being of the adopted child. The right to know their origins must give way to reasons of public order, when it is necessary to protect the life and the health of the persons involved in the adoption proceedings, or to prevent the commission of crimes33.
Thus the English system appears to have favoured the benefits of such disclosures as being necessary to assure the serene development of the child: at a psychological level, it helps the adopted person to understand the social context in which they live and in which they are destined to grow, it allows the adopted person to acquire their own cultural identity, and, in a more concrete sense, knowledge of their genetic identity permits access to medical information which can play a vital role in genetically transmitted pathologies.
It should be added that such approaches avoid the dramatic consequences of the situation in which the child learns about their adoption by the persons they believed to be their biological parents, by mistake. Such cases generate a sense of mistrust in the adopted person towards the adoptive parents, as well as appreciable psychological suffering.
Such situations are however less common in cases of assisted reproduction, in which ties with the third party donor are completely severed, and thus the identity of the donor remains necessarily anonymous.
With the aim of preventing incestuous relationships, recourse is possible to an authority, the Human Fertilization and Embryology Authority, specifically to verify the existence of any genetic ties between parties wishing to enter into a union of marriage34.
Another opening is for a person of majority age wishing to know their biological origins to apply to the same authority, requesting details of the method of conception.
The motives which have led the legislator to formulate regulations in this way must be studied in an attempt to bring together, once again, a group of legally significant interests, and also in the knowledge that rarely do couples who have resorted to such techniques communicate to their child the use of those assisted reproduction techniques. In such a context there is a conflict between the right of the child to know, the need to protect the couple by safeguarding information which reveals their infertility, and the necessity of donors remaining anonymous, as well as maintaining their right to privacy35 from illegitimate interference and social criticism.
The same issue arises in cases involving surrogate mothers, for whom access to information identifying the biological identity of the genetic mother is prohibited. To the contrary, the right to be informed about the method of conception is recognised, without, nevertheless, setting out any form of control or sanction if the parents refuse to provide such information.
With regard to obtaining the personal details of the surrogate mother, the approach is similar to that for cases of adoption; the Parental Orders Registrar has been set up to record the fact of the surrogacy. On reaching the age of majority, a person who is aware of the method of conception can access their own birth certificate and obtain information on the woman who carried the pregnancy to full term, to whom the person has the right, within the limitations set out by the Children Act 1989, to maintain contact.
The analysis of international case law in this area is neither exhaustive nor elucidatory with regard to the position assumed by international bodies, given that they make negative judgments which nevertheless make reference to cases of a very exceptional nature36.
It is evident that is a question of cases in which one cannot disregard a single judgment, closely tied to the situation of the child in a concrete case, who should be supported not only by the biological parents, but also based on the English model of a counsellor, by specially trained staff (psychologists, doctors, therapists, etc.) who are able to help the child in an informal way in choosing to access records and in considering the potential future use of the information obtained.
The relationship between the child and the public authority concerning access to data and specifically the birth certificate would necessitate an exhaustive set of rules at a community level, in order to clearly establish the criteria for balancing the interests at play, and also to standardize the solutions for such problems.
4. Nationality and citizenship
1) National citizenship
The confrontation and comparison between the different conceptions existing in Europe over the concept of nationality have their origins in geopolitical history from the end of the 19th century and in the french universalistic crusade of that period.
The nationality or citizenship gives rise to the recognition of the subject’s civil and political rights.
Foreigners have different citizenship, whilst stateless persons have no citizenship at all.
The rules for the acquisition and loss of citizenship are set down by the domestic laws of each state, by ordinary legislation (vd. Italy) or by the consitution, and make reference to the concepts of ius sanguinis and ius soli.
The concept of ius sanguinis (the German model) determines that the citizenship at birth relies upon a parent possessing citizenship. The concept of ius soli (the French model) on the other hand relies upon the birth in the territory of the state in question.
The adoption of one or two such criteria has been shown to have consequences in states affected by strong migratory movements (especially in France and Germany). The ius soli concept actually provides for the increasing incidence of citizenship to the offspring of immigrants born in the territory of the state in question (and hence it has been adopted in countries such as the USA, Argentina, Brazil, and Canada, all nations with strong immigration and vast territories able to welcome new immigrants). On the other hand, the ius sanguinis bestows rights upon descendants of emigrated subjects and therefore is often adopted by countries affected by strong emigration (such as Ireland) or by countries redefining their borders (Bulgaria, Croatia, Finland, Poland, Serbia, Turkey and Hungary).
Most European States adopt the criteria of ius sanguinis, although countries do exist, amongst which is Italy37, in which mixed criteria are in force.
Moreover it is possible for a person to acquire the citizenship of the state of origin of the parents, where ius sanguinis is applied, and at the same time take citizenship in the territory in which they were born, applying ius soli. These situations of dual citizenship are also regulated by means of international treaties.
It is interesting to consider the clear difference existing between the various European definitions of citizenship, especially if one considers that experiences of immigration encountered in the various countries are in actual fact very similar. In particular, in France and Germany there has been a strong immigration of the work force beginning in the second half of the 20th century, which in both countries has led to a political line being adopted to encourage voluntary migration back to the country of origin. It is worth noting that in countries such as Germany, where immigration does not have colonial roots but is a mere consequence of the socio-economic development of the country, stricter measures for naturalization have been adopted (citizenship is issued by public authorities following a long period of residence in the national territory). In Germany citizenship can be requested after ten years of residence, on the condition that citizenship in the country of origin is formally renounced. Instead in France five years of residence are sufficient to take citizenship and it is not necessary to renounce citizenship in the country of origin and thus dual citizenship is retained. In Italy non-European citizens must be resident for ten years, but citizens of other European States need only be resident for five years.
Focusing on the loss of citizenship, it can be the consequence of a formal renouncement, of acquiring citizenship in another state, of an act of privation following a declaration by a public authority as a result of serious violations, or it can be due to international treaties which transfer one part of a territory and with it the population of that territory from one State to another.
2) European citizenship
Citizenship of the Union is mandatory for all nationals of the Member State; there is no provision for opting out.
Citizenship of the European Union complements rather than replaces national citizenship (Article 17 CE; Articles I-10 European Constitution).
Article 10 of the European regulation No.1612/196838, which governs the rights of relatives of the migrant worker, defines the family in order to be able to apply the rules on free movement: the article examines the status of married couples, descendants and ancestors who qualify as family members, and the issuing of the right to stay in the State. Yet in the abovementioned regulation, no criteria are set out as to how to define such status.
All Union citizens residing in a Member State of which they are not a national have the right to vote and stand as candidates in both municipal elections and elections to the European Parliament in that state.
If the Union citizen is in a third country where the member State of which he is a national is not represented, he is entitled to protection by the diplomatic authorities of any Member State, on the same conditions as that State's own nationals.
The considerations above have an international-private nature, which pose problems of coordination on a European scale.
The concept of family referred to at Article 10 of the CEE Regulation No.1612/1968 actually derives from the common principles of the right of the family of the member States existing at the time of the adoption of the said regulation. However the problem of the interpretation of and ascertaining the family status laid down by the community regulations regarding free movement has reached fundamental importance as a result of the diversification of the concept of the family in Europe, which has followed the recognition in some countries of the legal importance of the family as a question of fact (heterosexual and homosexual), as well as the introduction of registered unions of same-sex couples.
The community regulations which, governing the movement between borders, define the status of partners, children and families, are integrated by cross-reference into the domestic laws of the different member States.
This means that the notions of the right to family life used in the provisions adopted at a European level can be interpreted:
l autonomously with reference to the sole community right: making reference to the notion of family used in most European countries, only heterosexual marriage unions are referred to. Applying an autonomous European interpretation, it also becomes problematic to recognise homosexual marriage unions, cohabitation between heterosexual and homosexual partners, and registered unions which give rise to subjective rights originating in the community (such as the right to reside in a territory);
l with recourse to the domestic national laws: such a cross-reference solves the problem regarding the criteria for the identification of the relevant provisions for the cross-reference39.
SECTION II: Place of children in judicial proceedings
1. Legal personality and capacity
The theme of children’s access to justice requires an awareness of the distinction between legal capacity and the capacity to act.
The former40 consists of the capability to be the holder of rights, powers, obligations, and duties, and it is bestowed upon the physical person right from birth41.
Having acquired legal personality, a child medically recorded live at birth but dying before registration of civil status enjoys the status conferred by the ordinary law: legally the child is an individual since it possesses a surname and first names; it appears in the parents' family record booklet, if such a booklet exists; if its parents are married, it is connected to their marriage, otherwise its parentage can be established by the ordinary rules42.
The capacity to act43 is however different: it is acquired upon reaching the major age, and determines the effectiveness and legal validity of acts undertaken.
The limit of the age of majority to acquire the capacity to act has been set out by the legislator in the protection and security of the child, who is considered not to be sufficiently mature to act autonomously in safeguarding his own interests44.
Before the age of majority, the child has no capacity to act. Nonetheless the domestic rights of some States recognize that also the child has a limited capacity to act.
Virtually all legal systems make it possible for minors to engage in mundane or purely beneficial legal acts.
The child can furthermore acquire some capacity to act following emancipation, by the act of marriage (“heirat macht mundig” in Germany; “matrimonio” in Italy, etc.), by provisions of a judicial or administrative authority (Article 477 of the French Civil Code, Article 15 ZGB of the Swiss Civil Code), with a formal declaration by the parents or representative of the child (Article 317 Spanish Civil Code). Emancipation bestows the emancipated child with the capacity to act as necessary for the exercise of rights independently and jointly with their own legal representative or carer.
One problem on the subject of emancipation concerns the case of emancipation following marriage when the marriage bestows citizenship on one partner in the country of the other. In some cases in reality the acquisition of the new nationality means the loss of the previous citizenship, and so the married partner emancipated by the law of their country of origin could be considered not emancipated by the law of the country whose citizenship they acquire upon marriage. In such cases, it is necessary to apply the general rules for conflict arising in citizenship (in Italy this is related to the principle of tempus regit actum) which provides for acts prior to the marriage to have the national law prior to the marriage applied, and acts post marriage to be subject to the national law following the marriage.
The domestic rights of some States hold that children who have the capacity to form their own views, are also capable of exercising fundamental human rights, amongst which are: to enter a marriage, to make a will, to recognise their natural offspring, and to work. In these countries it is thus expressly recognized that children have such rights, also to conform to international human rights, including CEDU, The New York Convention of 20th November 1989 on the Rights of the Child, the Strasbourg Convention of 25th January 1996 “sur l'exercise des droit des enfants”. The European regulations must be added to the aforementioned international regulations, being Article 6 Of the European Community Treaty, Article 24 of the Nice Charter, Art. II-84 of the Treaty on the European Constitution, as well as widespread jurisprudence conforming to the European Court of Justice.
In conclusion, it must be noted that the negotiable capacity of the child in international commerce is regulated by lex substantia actus.
One of the most problematic and also at the same time delicate aspects concerns the carrying out of judicial provisions which only involve children incidentally.
The most common cases involve the enforcement of decisions made in the dissolution of the family and cohabitation, aiming to place the child with one of the parents with direct visiting rights to the other. However it is important not to ignore cases of abduction which require the repatriation of the abducted child.
It is a question of evaluating which measures are made available by the state to guarantee even at this stage the well-being of the child.
At a commmunity level the matter of Regulation (CE) 2201/03 of the Council of 27th November 2003 must be underlined, in relation to the recognition and carrying out of decisions in family matters and relating to parental authority45, which repeals Regulation CE1347/00 and, with reference to international abduction, the Hague Convention of 25th October 1980 on the Civil Aspects of International Child Abduction46.
The cited community regulation has set out that the decisions made regarding the family are automatically recognized in the member States and that, with the sole aim of carrying out the provisions, it is necessary that decisions relating to the exercise of parental responsibility over a child, are enforceable for the parent concerned, before being implemented. Simply a formal check on the legal guarantees is appropriate (for instance that the decision does not go against public order, or that it does not conflict with other decisions made within the legal system in which it is to be enforced).
Looking in particular at visiting rights and the repatriation of the child, there are special rules to apply.
In both of these cases, the decision must be recognised and enforceable in another member State, without having to either make a declaration as to its executive effect, or without the possibility of objecting to its recognition if the decision has been certified in the member State of origin in accordance with the regulations.
In so far as the method of enforcing the provisions is concerned, there are nevertheless no uniform rules for the aspect governed by lex fori, that is for the law of the state in which the enforcement proceedings are to be pursued.
Also the Hague Convention, having set up the central authorities for the coordination of the search for abducted children, and having established the involvement of the public order forces in the enforcement phase of the repatriation, hasn’t yet set out criteria for the forced implementation of the decisions.
Under the Italian system, as under the French47, for example there are no specific rules for the enforcement of decisions relating to children who need to apply the common rules for rights in civil proceedings.
Such a system does not guarantee the best result for the child who is often subjected to serious trauma so that in many cases the individual with care of the child renounces the right to enforce the decision. Generally the remedies available under the Italian legal system call for the involvement of the Bailiff who with the public order forces enforces the provision (for example to collect a child to take them to the other parent or an institution, or impose a visit by a parent without custody, etc.)48.
A special remedy is available to the Juvenile Court, which can order the removal of the child from the family when the child is at risk, and place the child in the custody of a local authority body or ASL competent body, with the help of police intervention, and/or social services.
Given the difficulties inherent in this area, it would be necessary to use flexible instruments which take into account the needs of children. In this context it becomes crucial to proceed with the utmost caution, and above all, in cases of repatriation of the child, to hear the child’s wishes.
In the United Kingdom, the general method for proceeding to enforcement and punishing the lack of respect for the provisions lies in contempt of court. The punishment is fine or imprisonment49.
An intermediate solution is present in Slovenia, which provides a form of indirect coercion; based on the English model, that imposes the sanction of a fine on the party who does not comply with the decision, and then successively following the failure of this sanction, the forced exercise of the recognised right in the proceedings is carried out50.
3. Family mediation
A recently developed instrument in the custody of the minor, at both a national and international51 level, is so-called “family mediation”52: through the use of psychotherapy, the mediator offers their support to the couple in crisis and also to any children of the couple, providing assistance and advice to them in light of the details of any agreements concerning finances and custody. However the decisions emanating from the mediation are in no way binding on the parties.
The mediator is someone who tries to help parties to a dispute settle their quarrel, without having the power to impose settlement upon them.
The definition above emphasises the non-coercive power of mediation, where the parties rather than the mediator have the major element of control.
Some of the main European references to family mediation are set out below.
1) The necessity first arose to consider the training of mediators during the first European Congress on Family Mediation, held in Caen 29th November – 1st December 199053. Family mediation became more widespread almost simultaneously over the last few years in most European countries, and the short training carried out initially by diverse organizations began to evolve in response to the needs of those working in mediation. The duration of the training continued to increase, and the content evolved and came to include a practical work placement. Ultimately to coordinate the provisions of the various European countries, the Association pour la Promotion de la Médiation Familiare was set up: it is composed of a commission responsible for training centres for mediators working in Europe. The objectives of the commission are to find a balance between the different training carried out; to reflect on the demands of the function of the mediator and thus on the content of the training, with the aim of achieving a “common nucleus” for the organization of each training programme to be able to singularly reach specific complementary elements; and to establish appropriate directives with a view to recognising the training carried out by authorised bodies. The work of the commission is set out in the report of the “European charter on the training of family mediators in the area of divorce and separation” (1992).
2) The Recommendation No. R (98) 1 of the Committee of Ministers to Member States on Family Mediation, adopted by the Committee of Ministers on 21 January 1998 at the 616th meeting of the Ministers' Deputies, puts forward, although non-mandatory for States54, the foundations for the introduction of the institution of family mediation in Europe. At point 10 of the Recommendation, family mediation is defined as «a process in which a third party, the mediator, impartial and neutral, assists the parties themselves to negotiate over the issues in dispute and reach their own joint agreements». Another important aspect underlined by the Council of Europe is that «Mediation should not, in principle, be compulsory» (sect. II. a). Furthermore national States retain the jurisdiction over the availability of «procedures for the selection, training and qualification of mediators» (sect. II. d), as well as «standards», which must be set out and followed by mediators. (sect II, e).
The power of the judiciary to make «urgent decisions in order to protect the parties or their children, or their property» is reserved (sect V, d). The judiciary has the right to know «whether or not the parties are continuing with mediation and whether the parties have reached an agreement » (sect V, e), whilst other matters remain confidential and thus conversation between the parties and the mediator are not accessible.
The mediator cannot in any way be held to represent official reports on the object and the content of the discussions which have taken place during the mediation, even though the judicial or other relevant authority await receipt of a report accepted by the parties containing the agreements reached.
4. Foster care
The care of the child outside of the family constitutes an important procedure, whose object is the allocation to third parties when the family of origin is temporarily unable to provide the material and moral assistance necessary for the child. The purpose is thus to offer, through cohabitation with third parties or a family of a different origin, an educational environment suitable to overcome the difficulties of the family, and to maintain and improve relationships with the same.
Such a provision brings notable interference in the family life of the child and therefore could be virtually in conflict with the regulations, as previously cited several times, which protect the right to a family at a national and international level.
In such a way the jurisprudence of the European Court of Human Rights has interpreted the provisions of distancing the child from the family residence and fostering the child to the public authority as interference, in light of Article 8 of the Convention of Rome on the right to a family life.
Such a regulation has a double aspect: on the one hand it imposes on the State a negative obligation (of non-interference), and on the other hand it lays down a positive obligation on the part of the public authorities, in order to adopt all measures reasonable and suitable for the protection of the rights recognized.
The practice of the Court is therefore to proceed to a balancing of interests of the child and to protect them against situations which may present serious dangers for their development, to aim to preserve the family unit by carrying out a rigorous control on the way the fostering is put into effect, and the restrictions and cut-off points for contact between the child and the parents. In this sense it is considered to be a violation of Article 8 if the foster care compromises, in reality, the possibility of reuniting the family, by presenting a real risk of irreversible separation55.
Another relevant aspect to the aim of regulating the procedure for the foster care is the timeliness56 of the suitable measures to favour reuniting the family; recently the European Court in the case of Bove c. Italia of 30th June 2005 has declared the violation of Article 8 of the Convention due to excessive lapse of time to enable the parent to visit their child (notwithstanding the fact that the Juvenile Court provided appropriate psychological support to guarantee the effective reunion of the father and child after more than two years)57.
The maintenance of contact with the family of origin is also preserved when the criminal conduct of the parents is pertinent. Here it is appropriate to recall the case analysed by the European Court of Human Rights on 2nd November 200658; the said decision asserted that the violation of the right of the minor to have a family life occured with prolonged suspended contact and inadequate organization between the child and their relatives; the distancing of the child from the family home must be proportionate and necessary in relation to the criminal investigations relating to the sexual abuse suffered by the child, so that the foster care by the social services must be carried out with coherence with the ultimate aim of reuniting the child with their family members.
The evaluation of the Court in such cases therefore involves the action of the State in its globality, with the aim of weighing up the power invested in the public bodies, both judicial and administrative59.
It is actually in this area that the relationship between the child and the administrative authorities becomes interesting.
For example, in the Italian system, the initial phase of fostering is reserved to the social services who have the instigating power and if appropriate the power to make decisions. When the intervention to assist and help the child occurs does not resolve the problems connected to the difficulties of the family of origin with regard to the child, the appropriate official of the social services activates the foster care procedure60. The procedure takes place under the control of judicial authorities who can modify, integrate or annul decisions taken by the social services. It is of primary importance that the new set of rules of such an institute introduce the opportunity to hear the child who has reached twleve years of age, and thus children who are younger than the age at which it is usually considered to have the “capacity to form his or her own views”61.
The capacity of the child to form his or her own views has been the focus of various discussions in order to identify reliable criteria. In reality the concept itself can only truly be determined in the actual case, in so much as it corresponds to the gradualness of the development of the real person to be assessed in relation to the de facto situation.
In any event it must be underlined that the hearing of the child differs with the solution of adoption, when the child is only allowed to express their own opinion, but that opinion is completely without any value as to the final decision.
The responsibility of social services is therefore essential in fostering in that it follows the entire course of the programme of assistance and supervision, and represents the authority which can listen to the requests of the minor.
In Italy62 following the entering into force of the Framework Law 8th November 2000 No.328 and the guidelines set out in it, the general organization of social services at a state and local level has been revisited. Social services assist, among others, the family in the education programme and training courses supporting parental responsibility, as well as the autonomy of each family member.
Rigid criteria for the selection and training of personnel working in social services have been set out, together with specific requisites for institutional and community organization, including the family that care will care for the children. Such services are intermediaries between the children, the families and the judicial bodies. The latter are updated through bi-annual reports on the reactions of children, the development of the child, and the presumed duration and evolution of the difficulties of the family of origin.
Another aspect not to be ignored is the subsitution of the care in a “case-famiglia” so as to guarantee the child the organization and interpersonal relationships similar to those in a family.
These are public or private communities composed of groups of families or children who live with educator adults specializing in integrating children into the surrounding cultural and social environment, and they allow a constant relationship with the family of origin.
In effect, in the 1950s the worldwide organization of healthcare63 had already considered the negative consequences of the care of children in institutions. An awareness of the importance was also acquired also by the state in the care of children, and the necessity of considering not only the child’s material needs but also spiritual, was also perceived by the United Nations in 1989, which guaranteed the harmonious development of the child. To ensure such an objective it is obviously necessary not only to satisfy the physiological needs of the child, but also to meet the emotional responses. The absence of the parent-child relationship is the cause of profound consequences during the period of development of the child, to the extent that the connection with units of assistance must be as brief as possible.
Also in the English system the court can issue orders which constitute a mid-point between the legal decisions and the administrative regulations regarding children, and they often provide for the involvement of public authorities and/or social services. The application of the Children Act 1989 authorizes the judge to issue the following orders: to nominate a guardian or issue a family assistance order, order a welfare report or an order restricting an application to the court64.
The local authorities also have the possibility of exercising, prior to the authorization of the court, the inherent power, that is to obtain permission from the legal authorities for extraordinary administrative decisions regarding the child (such as healthcare treatment, or intervention in cases of child abduction). The judicial authorization is not requested for cases in which it is necessary top protect the child in care65.
Such provisions are denied when the Court considers it is in the prevailing interests of the well-being of the child: wardship has been denied to avoid the Secretary of State being deprived of powers conferred upon him by the Immigration Act 197166.
In other words, the local authorities who cooperate with the professionals and specialist agencies have the power and the duty to safeguard the well-being of the child, working in partnership with families and children67.
Actions to benefit children in need are distinguished (namely that a reasonable standard of care for the health and development of the child is not possible without the intervention of the local authority) from actions undertaken to apply for care or supervision68.
In a similar context, the work of international social services must be mentioned, which is carried out for the benefit of unaccompanied foreign children.
Unaccompanied minors are defined as “a minor child without citizenship in the state in which they are located nor in another state of the European Union, who without having any application for asylum, is present for whatever reason in the territory of the State without assistance and representation by parents or other adults legally responsible for him or her, based on the laws in force in the legal system”69.
At this particular moment in time, usually this is a result of the phenomena of more consistent migration70.
The principle that governs this subject is that the unaccompanied child must be allowed to enjoy the same rights recognized to minor European citizens who have been abandoned, with the further necessity of organizing a programme for insertion into and adaptation to the new life context, without ignoring the recovery of the origins and the possible recomposition of the family.
In such cases it is then appropriate to proceed to the action perfectly identified by international Social Services, which can be listed as follows71:
“• to provide for the reconstruction of the child’s past and the gathering of all possible elements which facilitate identifying the family in the country of origin or in third countries;
• to obtain data to initiate the investigation by contacting the family and informing them first of all where the child is and the child’s current conditions;
• to clarify the reasons for the distancing from the family or whether the child has involuntarily been divided from the family, and if the family want to have the child returned.
If the best interests of the child indicate repatriation, it is necessary:
• to make arrangements under the direct control of social services and the children’s authorities of the country of origin and the country of reception;
• to verify that the minor is supervised during the reinsetion in the family and educational contexts.
If the family is located in a third country, the following actions are called for:
• to examine with the local authority the possibilities of a legal reunion;
• to help the family to carry out the necessary procedures in both countries;
• to organize the reunion in collaboration with social services and children’s services in both countries involved.
Once the permanent residence of the child in the country of reception has been decided, the following actions are necessary:
• to arrange, after having considered wardship, the reception of the child in structures which if possible offer workers from the same ethnic and linguistic background;
• to insert the child into the education system, on professional or vocational courses, suitable to their capabilities and aspirations.”.
This is currently a very important issue. An example would be the agreement between Spain and Morocco to collaborate in repatriating African children in the territory of origin, when it is in the best interests of the child and there is an individual capable of taking care of the child, or social services will take on that responsibility.
In any event, the unaccompanied child is guaranteed the same treatment as the Spanish child, and therefore has the right of access to the same institutes able to care for the child, as well as the right to a school education72.
It is important to recall the Pacte international relatif aux droits civils et politiques, le Pacte international relatif aux droits économiques, sociaux et culturels, la Convention contre la torture et autres peines ou traitements cruels, inhumains ou dégradants et la Convention concernant la lutte contre la discrimination dans le domaine de l'enseignement.
Furthermore the European regulations on this topic are set out in the Charte des droits fondamentaux de l'Union Européenne et la Convention pour la protection des droits humains et des libertés fondamentales nonché nella Convention européenne sur le rapatriement des mineurs La Haye, 28th May 970: Article 2 establishes that “1. La présente Convention s'applique aux mineurs qui se trouvent sur le territoire d'un Etat contractant et dont le rapatriement est demandé par un autre Etat contractant pour l'une des raisons suivantes: 1. la présence du mineur sur le territoire de l'Etat requis est contraire à la volonté de la personne ou des personnes qui détiennent à son égard l'autorité parentale; 2. la présence du mineur sur le territoire de l'Etat requis est incompatible avec une mesure de protection ou de rééducation prise à son égard par les autorités compétentes de l'Etat requérant; 3. la présence du mineur sur le territoire de l'Etat requérant est nécessaire en raison d'une procédure visant à prendre à son égard des mesures de protection ou de rééducation. 2. La présente Convention s'applique également au rapatriement des mineurs qui se trouvent sur le territoire d'un Etat contractant lorsque cet Etat estime leur présence contraire à ses propres intérêts ou aux intérêts de ces mineurs et pour autant que sa législation lui permette de les éloigner de son territoire”.
SECTION III: Access to justice and the place in judicial proceedings of children who are migrants, refugees or asylum seekers
On the subject of immigration and asylum, European jurisdiction is significant and has to be taken into account, being included in the Third Pillar: the Maastricht Treaty has in fact provided the Union with jurisdiction over immigration, to be exercised through intergovernmental cooperation, in areas of common interest to be considered as conditions of citizens staying in third countries within the territory of the member States, the family joining those citizens, and for access to employment73.
With the Treaty of Amsterdam the prospect of cooperation in the area of justice and internal affairs has altered significantly, both in terms of cooperation between the member States, and also and above all in relation to the instruments and institutional structure used in considering the requirements for the future development of the European Union. Cooperation in the areas of justice and internal affairs has actually changed its denomination and objectives for the communitarisation of a part of the activity which falls within Title VI of the EU Treaty, which becomes an integral part of the CE Treaty, and for the expansion of subjects which fall within the ambit of the said Title VI.
Artiche 2 (at article B) of the EU Treaty identifies from the objectives of the Union those to retain and develop, of which giving“latitude to liberty, safety, and justice” guarantees the free movement of persons, together with measures for the control of external borders, asylum, immigration, the prevention of criminality and the fight against crime74.
The EU Treaty indicates that the Council, in the exercise of its responsibility of “progressively instituting latitude to liberty, safety and justice”, must adopt measures “in the area of judicial cooperation in civil matters which present cross-border implications” which include those focused on improving and simplifying the system for the international notification of judicial and extrajudicial acts, cooperation in experimental processes and procedures, the recognition and execution of civil and commercial decisions, including extrajudicial decisions, and promoting the compatibility of national rules in conflict with laws and jurisdictions, to eliminate obstacles to the correct execution of civil proceedings, and where possible promoting compatibility between national legal proceedings (Art. 65).
The limit of community jurisdiction is in truth expressed in reference to “cross-border implications” for judicial cooperation in civil law matters.
In this respect two differing approaches exist: under the first, the Community could only adopt measures aimed at governing cases connected exclusively to member States, and thus relationships located within the borders of the European Union; under the second, however, cases connected to third States could be dealt with, with the result that community jurisdiction would have a general and exclusive nature and would completely substitute national jurisdiction75.
Considered below are some regulatory provisions adopted at a community level, in pursuance of the duty of harmonisation described above.
1) In June 1993 the Council of Europe adopted a resolution concerning the reuniting of families, which gave rise to the beginning of the harmonisation of national policies on this subject.
Such a resolution, applied to citizens of third countries who are legally and habitually resident in the member States of the European Union (and therefore this is excluded from applying to refugees and asylum seekers) reserves firstly to each State a wide discretion over the admission of offspring of a single parent, with the revocation of the right to residence in the case of fraud, subject to the continuing criteria of admission for immigrants, and the conferring upon the relatives of the right to independent residence and access to the labour market of the host State.
2) The Conclusions76 of the President of the European Council, at the meeting of Tampere on 15 – 16th October 1999, have underlined the necessity of equal treatment of citizens of third countries legally resident in the territory of the member States. This means that citizens of non-European countries must be bestowed with the same rights and duties as those bestowed on EU citizens, and equally they must be guaranteed not to be subjected to socio-economic and cultural discrimination, also to be achieved through the adoption of appropriate measures against racism and xenophobia (conclusions of the President of the European Council, at the meeting in Tampere of 15-16th October 1999, point 18)77.
Furthermore, at the Tampere summit the European Council approved the principle of reciprocal recognition of civil and criminal matters and invited the member States to ratify the 1995 and 1996 conventions on extradition (the Convention relating to the simplified extradition procedure for member States of the European Union, of 10th March 1995 ( GUCE C 78 of 30th March 1995) and the Convention relating to extradition between member States of the European Union of 27th September 1996 (GUCE C of 23rd October 1996).
The reciprocal recognition of civil and criminal matters also applies to children.
It is however worth noting that most foreign legislation does not provide a subjective right to enter and reside ahead of foreign citizens. These rights arise, rather, following the issuing of appropriate expansive proceedings by the public authority, namely the “visa” to enter and the “permit” to reside, to stay in the national territory. It follows from that, based on the traditional criteria of allocation, that legal responsibility would have to rest with the administrative jursidiction, with regard to the concession and revocation of legitimating rights, and with the ordinary jurisdiction, for proceedings which affect the position of the foreigner without the application of parental authority, apart from the opportunity to limit the knowledge of the subject exclusively to a sole judge, where it becomes difficult in real terms to implement the system.
Following European unification, the above applies exclusively to non-European citizens.
The individual having the right to asylum, in whose country democratic freedom cannot be exercised, and the refugee, whose situation amounts to a danger of being persecuted in their own country, to obtain official recognition of such status, must present an application addressed to the office of the border control police, against which the police superintendent must release a temporary residence permit which remains valid until the end of the procedure. From the entry of the subject having the right to asylum or of the refugee, the ordinary judge must be held to have jursidiction: such a general jurisdiction goes beyond the age, be it majority or minority, of the individual involved.
3) Art. CE bestows the power upon the European Community to adopt, in cases of asylum:
- repatriation measures between member States in the jurisdiction of the examination of the application for asylum,
- minimum provisions on the reception of those seeking asylum, the awarding of the status of refugee, and on the procedures for conceding and revoking such status,
- minimum provisions on the temporary protection of evacuees and persons otherwise in need of international protection;
whereas in the matter of immigration, it has the power to adopt:
Article I.provisions concerning the entry and residence and release of visas and long term residence permits (including those with the purpose of reuniting the family);
Article II.provisions on illegal imigration, illegal residence and repatriation;
Article III.provisions on movement between member States and the status of citizens of third parties legally residing in a member State.
4) The directive No.2001/55 on the temporary reception of evacuees (enforced in jurisdictions at Article 63 CE) governs the exceptional, immediate and temporary reception of the member States of evacuees coming from third countries who cannot re-enter their country of origin.
During the period of temporary protection (generally lasting one year) or rather following the receipt of any application for asylum, the foreigner enjoys some rights which include the right to the reconciliation of the family. The inseparability of the parent applying for asylum also applies in the case of minors born after the arrival of the applicant in the community territory.
5)Regulation No. 343/200378, with the purpose of the reconciliation of the family, states that relatives are subjects who “are located in the same member State in connection with the application for asylum” (Article 2), on the condition that the same relatives are included in the application for asylum in accordance with the domestic legal provisions.
As far as the above is concerned, it is important to note that the safeguarding of the family unit is only possibile when the members of the family have applied for asylum: an exception is made only in the case of minor children, for whom reconciliation is always permitted.
This is also confirmed on the other hand by the domestic regulations of the member States,
In Italy, the Constitutional Court has expressly recognised (in compliance with the provision under Articles 2 and 30 of the Italian Constitution) the priority right of the child abandoned to the family to whom he or she has emotional ties, even in the absence of blood ties. Such a right represents a manifestation of the principle of equality to which Article 2 of the Constitution speaks: if in reality an Italian child has the right to the family, it is impossible to see how that same right could not be applied to a foreign child.
Finally it remains to specify the minority age of the children of the asylum seeker: Directive No. 2003/9 deals with the triggering of domestic rights within the receiving State.
6) The New York Convention sanctions the right of the minor to retain his or her own national identity and states that ethnic, religious, cultural and linguistic origins must be taken into account, in providing protective measures where the child remains without a suitable family environment. Such references, nevertheless, do not require the child to return to the country of origin, but instead that the State in which the child lives cares for him so that the child can maintain their own national, religious, cultural and linguistic identity.
7)Directive 2004/83/CE carries minimum provisions on the awarding of the status of refugee or a person otherwise in need of international protection, to citizens of third countries or stateless persons, as well as the minimum provisions on the subject of recognising protection; Directive 2005/85/CE carries the minimum provisions for the procedure applied in the member States with the aim of recognising and revoking the status of refugee.
The above-cited EU directives have introduced some important improvements, among which is the suspensive effect of expulsion triggered by the presentation of an appeal against the decision to refuse the application for asylum (previously excluded, with grave risks in the case of forced repatriation of the asylum seeker whose application was erroneously turned down at first instance).
Such improvements likewise affect children who, in the opposite case of general exacerbation of the provisions on detention, if following the unlawful parents, would not be protected from the risk of repatriation run on the part of the parents.
8) The Charter of Fundamental Rights (2000/C 364/01), with its solemn proclamation in Nice on 7th December 2000, at Article 24 recognises for the child the right to care, the right to express his/her own opinion79, the pre-eminent consideration of his/her superior interests, and the right to a relationship with both parents.
Article 20 constitutes the foundation of the right of equality for children in the face of the law, whilst Article 21 expressly prohibits discrimination based on age (as well as gender, religion, race, and language).
Respect for the nationality of origin does not suggest the exemption of the application of laws of the territory in which the child is located. As far as the subjection of the child to civil proceedings is concerned, the same rules for minor community and national citizens are therefore applied, in respect of both the rules for procedures, as much as the actionable rights of the same.
I n particular, in hypothetical cross-border proceedings, it will be necessary to initiate the rules of international private law, which fix the forum and applicable laws in the specific case. Such provisions differ greatly from State to State.
The applicability of the domestic laws governing children is based on the condition of checking the the effective age of the child in question, according to the laws of the country in which he or she is based.
A similar investigation is regulated by the triggering of domestic law: in Italy to this extent the “circular for ascertaining age” of 9th July 2008 has been adopted, under which:
“- in cases in which the age of the minor child is uncertain, recourse must be made to investigations, in any event identified by legislation on this subject, in order to determine the minor age, making use above all of public health structures with paediatric departments [the reference to “all investigations” seems to have to be interpreted as an indication to also use other methods beyond x-rays of the wrist];
- if even after the investigations, doubts still remain (in so much as the margin of error indicated by the results relates to both the child and the child’s maximum age), the child’s age must be presumed (the principle of presuming the age of the minor) – until the results of the investigations are available, and measures used for the protecting of children must be applied to the immigrant [such as the prohibition on expulsion and being held in temporary residential or identification centres, the obligation to be placed in a safe place, etc.]”
Courts of Justice and children:
Above we have seen how the rights enjoyed by the child are recognised setting aside the status of refugee/stateless person/asylum seeker which those with such a status enjoy.
It is thus necessary to examine the civil court system with reference to the general figure of the child (which by all accounts, except for the exceptions cited, relate to specific authorisations and permissions, as previously analysed).
There are three judicial organs with jurisdiction over the issues of minors in Italy.
1)The Ordinary Court [“Il Tribunale Ordinario”] decides issues relating to the custody and maintenance of minor children in cases of separation and divorce.
2)The Family Judge [“Il Giudice Tutelare”] (also being an organ of the Ordinary Court) oversees the exercise of parental responsibility, authorizes any possible extraordinary administrative matters to be carried out on behalf of and in the interests of the child, nominates the guardian where necessary, and provides directly for the guardianship of orphans and children whose parents are deceased or unable to exercise their parental responsibility.
3)The Juvenile Court80 (“Il Tribunale per i Minorenni”) has jurisdiction over provisions which include Article 330 (“Loss of parental authority over children”) and Article 333 (“Conduct of the parent harmful to the children”) of the Civil Code, as well as for cases of custody of children of unmarried parents, verification and legal declaration of paternity and maternity, recognition of the child without the consent of the parent who had initially sought such recognition, the legitimation of natural offspring, decisions regarding the surname of the child who is subsequently recognised by two parents, the prohibition and disqualification from acting of the seventeen-year-old child incapable of understanding and making choices, authorising a minor to enter into marriage, making a declaration regarding adoption in cases of abandonment or ill-treatment by the parents, making a declaration of legal effect within foreign proceedings for adoption, and decisions relating to suitability for international adoption.
All of the judicial proceedings indicated above are not initiated directly by the child, as we have already stated that the child does not have the capacity to act, but by the parent exercising their parental responsibility, or by the guardian, or rather by the office of the Court itself.
Italian law does not actually provide for the possibility of the minor child to make decisions autonomously which have legal effect.
From this perspective, it seems extremely significant to compare the European guidelines, and in particular the European Convention on the Exercise of Children's Rights81, which, in contrast, sets out the possibility of the child acting iure proprio in order to nominate and obtain the assistance of a guardian (possibly even someone specifically nominated by the said minor).
It must be said that the role of the child in legal proceeedings includes both playing a possible role in the final hearing (see above), and as a witness.
On this subject, in conformity with Article 12 of The United Nations General Assembly Convention of 1989 on the rights of the child82 (ratified in Italy by Law No.176/1991), the national legal provisions of the signed-up States have set out a specific regulation concerning the hearing of children.
As far as Italy is concerned, diverse laws are currently in force which fix differing minimum ages for when a child’s wishes can be heard: 14 years of age for matters concerning adoption, and 16 years of age in proceedings regarding legal parentage. Furthermore, reference is made to the discretional evaluation of the judge during proceedings for separation and divorce of the parents83, in compliance with the general criteria of “capacity to form his or her own views”, as set out in the above-mentioned New York Convention of 1989.
In light of the considerations above, the necessity is therefore evident for a systematic reorganization of the issue of hearing from the child in proceedings, in that it is the ideal vehicle to permit them to participate in the procedure which concerns them, and thus constitutes an indispensable instrument for the effective protection of their rights and interests.
MAIN LEGAL TEXTS
INTERNATIONAL AND EUROPEAN LAW:
- Agreement on the exchange of civil status documentation and the waiver of legalization requirements for certain documents, signed in Madrid on October, 10th 1983, United Nations, Treaty Series vol. 1436, I-24338, registered by Spain on September, 12th 1986;
- Art. 5, lett. b of CM(2008)13 prov3 Draft european Convention on the adoption of children;
- Article 7-1 of the New York Convention on the rights of the child;
- Bilateral agreement between Germany and Italy: signed in Berlin on 31.5.1937 and brought back into force with the exchange of note of 20.11.1952 (published in the “Gazzetta Ufficiale” No.291 of 16.12.1952);
- Bilateral agreement between Italy and the Government of the Lebanese Republic, concerning the cooperation on the subject of the rights of the family of 15th July 2004;
- Charter of Fundamental Rights (2000/C 364/01);
- Commission Internationale de l'Etat Civil (CIEC) - Secrétariat Général, “Civil Status and Perinatal Death in ICCS Member States ” (Austria – Belgium – France – Germany – Greece – Italy – Luxembourg – Netherlands – Portugal – Spain – Switzerland – Turkey – United Kingdom), Strasbourg – December 1999;
- Conclusions of the President of the European Council, at the meeting of Tampere on 15 – 16th October 1999 ;
- Convention concernant la lutte contre la discrimination dans le domaine de l'enseignement. de plus,
- Convention contre la torture et autres peines ou traitements cruels, inhumains ou dégradants;
- Convention européenne en matière d'adoption des enfants del 24/04/1967, Strasbourg;
- Convention européenne sur la reconnaissance et l'exécution des décisions en matière de garde des enfants et le rétablissement de la garde des enfants del 20/05/1980, Luxembourg;
- Convention européenne sur le rapatriement des mineurs La Haye, 28 maggio 1970;
- Convention européenne sur le rapatriement des mineurs, La Haye 28/05/1970;
- Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data Strasbourg, 28 gennaio1981;
- Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children;
- Convention of Rome on 6th November 1990 on the simplification of procedures for the recovery of maintenance payments between Member States of the European Community, made executive by the Law of 23rd December 1992 No.524
- Convention of Rome on the right to a family life 1950;
- Convention of the Council of Europe laid open for signature on 15th May 2003 the personal reports concerning children;
- Convention on Children’s Rights, signed 23rd November 1989;
- Convention on contact concerning children, 15 may 2003;
- Convention on contact concerning children, Strasbourg 15 May 2003;
- Convention on the recovery of maintenance abroad, signed in New York on 20th June 1956;
- Convenzione europea sul rimpatrio dei minori firmata a L’Aja 28 maggio 1970;
- Decision of 5 June 2008 2008/431/EC;
- Declaration on the Rights of the Child adopted by the UN on November 20th, 1959;
- Directive 2004/83/CE ;
- Directive 2005/85/CE carries the minimum provisions for the procedure applied in the member States with the aim of recognising and revoking the status of refugee;
- Directive n. 2002/58/CE 12 th July 2002;
- Directive on the protection of personal data (95/46/EC);
- Draft European convention on the adoption of children (revised) 7 may 2008, Strasbourg.
- Eu Court of Justice, 17 april 1986, procedure 59/85, Reed, in racc., 1986, p. 1283;
- European charter on the training of family mediators in the area of divorce and separation (1992);
- European Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 november 1950;
- European Convention on Human Rights;
- European Convention on recognition and enforcement of decision concerning custody of children and on restoration of custody of children, 20 may 1980;
- European convention on the exercise of children’s rights;
- European Convention on the repatriation of children (The Hague on 5th October 1961);
- European regulation No.1612/1968 ;
- Guide to good practise on Contact by the Hague Conference;
- Guidelines for the Promotion and protection of the rights of the child adopted by the council in december 2007;
- Guidelines on the Protection of Privacy and Transborder Flows of Personal Data 1980;
- Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction;
- International Commission on Civil Status (ICCS);
- Luxembourg Convention of 28th May 1980;
- Pacte international relatif aux droits civils et politiques;
- Pacte international relatif aux droits économiques, sociaux et culturels;
- Protocol of 25 September 1950 of the ICCS (International Commission on Civil Status);
- Protocole à la Convention européenne sur les fonctions consulaires relatif à la protection des réfugiés del 11/12/1967, Paris;
- Reccomendation 1723 (2005) of the Council of Europe ;
- Recommendation No. R (2005)5 on the rights of children living in residential institutions.
- Recommendation No. R (98) 1 of the Committee of Ministers to Member States on Family Mediation (adopted by the Committee of Ministers on 21 January 1998 at the 616th meeting of the Ministers' Deputies);
- Recommendation Rec(2001)9 of the Committee of Ministers to member states on alternatives to litigation between administrative authorities and private parties;
- Regulation (CE) 2201/03 of the Council of 27th November 2003 on the recognition and carrying out of decisions in family matters and relating to parental authority;
- Regulation (CE) 2201/2003;
- Regulation No. 343/2003 ;
- Resolution (77) 33 on placement of children;
- The Hague Convention of 19th October 1996 concerning the jurisdiction, applicable law, and recognition and execution of decisions, as well as the cooperation over parental responsibility and measures for protecting children;
- The Hague Convention of 29th May 1993;
- The Hague Convention of 2nd October 1973;
- The Maastricht Treaty;
- 28th Conference of European Ministers of Justice, Lanzarote 25/26 October 2007;
- Universal Bill on Human Rights" of the 1966 International Covenant on Civil and Political Rights (ICCPR);
- Universal Declaration of Human Rights;
II) National references
Article IV.sec. 79 e 110 (Austrian) Non contentious Proceedings Act;
Article V.Para. 28, sub-para. 1 PstG;
Article VI.P 23.4 DA and para. 8 sub-para. 1 Z 2 of the Midwives Act
- Section 328 Cc;
- Section 326 Cc
- art. 815 (Danish) Civil Procedual Act;
l Loi no. 78-17 of 6 January 1978;
l Art. 57 code civil;
l Art. 60 code civil;
l art. 477 Code Civil;
l Artt. 213 ss du nuveaux code de l’organisation judiciarie;
l Loi n°2007-308 du 5 mars 2007;
l Loi 91-650 du 9 juillet 1991;
l Decree of 3 March 1993, Journal Officiel 24 March;
l Ministry of Justice Decree of 3 March 1993, I 3-7
- par. 33 (German) Non contentious Proceedings Act;
- para. 15, 21 and 37 PStG – Civil Status Act;
- para. 29, sub-para. 3 PStV – Decree on implementation of the Civil Status Act
- Section 1475, sub-para. 3 Cc;
- Section 37. Para. 3 of law 344/1976
l Decreto legislativo 30 giugno 2003, n. 196
l Legge 4 maggio 1983 n.184;
l Legge 28 marzo 2001 n..149;
l Legge 7 August 1990, n. 241;
l Legge 8 novembre 2000 n. 328;
l Codice civile italiano
- Section 50, sub-para. 2 BBS on recognition;
- Section 19 i, Schedule 1 BW and the Inhumation Act of 12 April 1995
- Sections 100, 102 No 1 sub-para. a) and 130 CRC;
- Section 209 CRC
- Artt. 238 (Slovenian) Enforcement of Judgments and Protective Measures Act;
- Section 173 RRC;
- Section 36 RRC;
- Section 45 LRC,
- Sections 171-174 RRC;
- art. 317 Còdigo Civil
- Section 46, sub-para. 1 Cc and Section 59 sub-para. 1 OEC ;
- Section 48 Cc and Section 74 sub-para. 1 OEC;
- Section 66 sub-para. 1 OEC;
- art. 15 ZGB;
- Sections 241 and 252 Cct;
- Sections 16 of the Population Act and 84 of the Regulations on the setting up, functions and operation of civil status bodies
l Data Protection Act 1984;
l Data Protection Act 1998;
l Adoption Act 1976;
l Children Act 1975;
l Adoption Act 2002;
l Human Fertilization and Embryology Act 1990;
l Surrogacy Arrangements Act 1985;
l British Nationality Act 1981;
l Human Fertilisation and Embryology (Deceased Fathers) Act 2003;
l Immigration Act 1971;
l Scotland : 1965 Act, Section 14 ;
l England and Wales : 1953 Births and Deaths Registration Act, Section 1 ;
l Northern Ireland : Births and Deaths Registration (Northern Ireland) Order 1976;
l Divorce Reform Act 1969;
1 We refer to the judiciary and administrative law; concerning that distinction see A.C. Moro, Manuale di diritto minorile, III ed., Zanichelli, Bologna, 2002, p. 32 ss.
2 United Nations, Treaty Series vol. 1436, I-24338, registered by Spain on September, 12th 1986.
3 See http://www.conslondra.esteri.it/Consolato_Londra/Menu/I_Servizi/Per_i_cittadini/Stato_civile/
4 Published in “Trattati e Convenzioni”, Vol. LI, p.241.
5 See “Civil Status and Perinatal Death in ICCS Member States”, version bilingue éditée par le Secrétariat Général , Strasbourg-décembre 1999.
6 See the official site at http://www.ciec1.org/
7 Commission Internationale de l'Etat Civil (CIEC) - Secrétariat Général, “Civil Status and Perinatal Death in ICCS Member States” (Austria – Belgium – France – Germany – Greece – Italy – Luxembourg – Netherlands – Portugal – Spain – Switzerland – Turkey – United Kingdom), Strasbourg – December 1999.
8 Modified by Law No.151/1975.
9 The prohibition on entering into marriage before reaching the age of 18 years equates the capacity to marry with the general capacity to act, and eliminates the different age limits previously in force for men and women, thus respecting the constitutional principle of equality. The age limit necessary to enter into a valid marriage has been equated with the general limit that the law establishes to carry out most acts of legal significance.
10 Adopted by the Council of 27th November 2003, relating to the jurisdiction, and the recognition and the execution of decisions concerning marriage and parental responsibility, it repeals the Regulation (CE) No. 1347/2000; it came into force on 1st March 2005 (with the exception of Denmark, which remained extraneous).
11 See “Civil Status and Perinatal Death in ICCS Member States”, version bilingue éditée par le Secrétariat Général , Strasbourg-décembre 1999.
12 See UNICEF, Birth Registration: right from the start, Innocenti Digest No. 9.
13 A study on this subject is laid down for the The Center for Gender and Law Studies by Liu Huawen, The Child’s Right to Birth Registration. International and Chinese Perspectives in www.genderandlaw.org.cn.
14 See the rules suggested in www.gro.gov.uk.
15 Article 22 of the Italian Constitution which states that “No-one can be deprived, for political motives, of legal capacity, citizenship, and the right to a name.”.
16 The paternal surname could, for example, cause prejudice to the child due to the negative reputation of the parent.
17 Article 34 CC.
18 Also a mother who has decided to remain anonymous can however communicate the name that she wishes to give the child at baptism.
19 Considering the typical situation of the mother, with the purpose of avoiding recourse to an abortion, she has carried the pregnancy to term (on the condition that she remains anonymous) to then consent to the adoption of the child; or alternatively in the spirit of solidarity, she has consented to artificial insemination with her own genetic material and does not intend to create any tie to the child subsequently born.
20 The Hague Convention of 29th May 1993, Art.27
21 Article 6:Special categories of data Personal data revealing racial origin, political opinions or religious or other beliefs, as well as personal data concerning health or sexual life, may not be processed automatically unless domestic law provides appropriate safeguards. The same shall apply to personal data relating to criminal convictions.
22 It is important to note that in 1980 the Organization for Economic Cooperation and Development (OECD) formulated its data protection guidelines “OEDC Guidelines on the Protection of Privacy and Transborder Flows of Personal Data”, which explain their efficacy in relations between European States and the United States, in order to avoid the creation of and also to remove obstacles to the diffusion of data, above all in the development of business relations.
23 Articles 51 and 73 of the Code on Privacy.
24 Adoption is governed by Law No.184 of 4th May 1983, as modified by Law No.149 of 28th March 2001.
25 Art. 27, Law No.184 of 4th May 1983 “By the act of adoption the adopted person acquires the status of the legitimate child of the adoptive parents, from whom the adopted person takes the surname. If the adoption involves a wife who is separated, the adopted person takes the surname of her family. Ties of the adopted persons to the birth family cease upon adoption, except for those relating to prohibitions on marriage.”
26 The relevant articles respectively forbid State officials from supplying news or releasing certificates which could indicate the fact of the adoption and prohibitions on marriage.
27 It is evident that to obtain details of the biological parents, the child needed to see documentation held by public offices (hospitals, local authority offices, etc.), as governed by Law No.241 of 7th August 1990.
28 It must be underlined that most case law has generally denied access to documents thus preserving the above-ordered right to anonimity when there was opposition to the mere request to know the child; on the contrary, in cases in which the adopted person was acting for health reasons, the courts have tended to agree to access of genetic information (not only identifying information) of the natural parent (see T.A.R. Marche 8th March 2002).
29 As well as prohibiting children’s access to information, without the assistance of the adoptive parents, at the age of 18 a child may seek legal authorisation to obtain information necessary for substantiated reasons relating to the psycho-physical health of the adopted person. Only at 25 years of age can the adopted person access information independently for any reason whatsoever.
30 The reform cited has not yet clarified the interlinking relationship with the arrangements concerning access to administrative documentation and the protection of privacy so that the absence of fixed criteria has culminated in inconsistent judicial decisions.
31 The court could, at the request of the interested party, order the Registrar General to arrange for the necessary information to be provided; however this approach in reality is rarely used and is limited to determining disputes in matters of succession.
32 For adoptions prior to 12th November 1975, a consultation with a counsellor outside of the legal system is obligatory for the adopted person to ensure that they have carefully considered the effects of their request, and that the information will be used in an appropriate way.
33 R. v. Registrar General, ex p. Smith  2 Q.B. 393, CA. The reasons for having denied the right to know were based on the necessity of protecting the health of the birth mother; the adopted person was imprisoned for murder, and showing evident psychiatric problems, had killed the prisoner sharing the cell in the belief that the prisoner was the adoptive mother. The request for access to the birth certificate was thus denied on the basis that there was a high risk to the life of the birth mother.
34 The provision is nevertheless ineffective, regarding access to the authority and generally, and such access arises only when the parties have already begun a lasting personal relationship, that is after the parties have lived for a fairly long period as a couple as they were unaware of their genetic link. See the Human Fertilization and Embryology Act 1990 and Surrogacy Arrangements Act 1985.
35 The only important exception on the subject of the right to health: the donor’s personal details may be revealed when the child subsequently born is effectively handicapped by the donor’s reticence to reveal the existence of transmissible genetic illnesses.
36 Reference is made to the case of Gaskin v. United Kingdom.
37 In Italy, citzenship can be acquired: under ius sanguinis, and under ius solis (as specified above), by marrying a citizen, or by naturalization (proceedings by the public authority pursued in the presence of specific conditions laid down by law, including residence for a long period in the national territory, the absence of a criminal record, the renunciation of the citizenship of origin, or for other special reasons).
38 Regulation (CEE) No.1612/68 of the Council of 15th October 1968 relating to the freedom of movement of workers within the Community.
39 The EU Court of Justice, 17th April 1986, case 59/85, Reed, 1986, p. 1283.
40 Governed in Italy by Article 1 of the Civil Code.
41 Even the unborn child has certain specific rights (in the area of succession, gifts, and the right to recognition by their birth parents), however they are all subject to the condition precedent of the birth of the child.
42 This is so in Germany (Para. 15, 21 and 37 PStG – Civil Status Act), in Austria (Para. 28, sub-para. 1 PStG), in Belgium (although it should be observed that posthumous recognition is not possible, Section 328 Cc), in France if the child is born viable (Decree of 3 March 1993, Journal Officiel 24 March), in Greece (Section 1475, sub-para. 3 Cc), in Italy (Section 1 Cc), in the Netherlands (Section 50, sub-para. 2 BBS on recognition), in Portugal (Sections 100, 102 No 1 sub-para. a) and 130 CRC), in the United Kingdom (Scotland : 1965 Act, Section 14 ; England and Wales : 1953 Births and Deaths Registration Act, Section 1 ; Northern Ireland : Births and Deaths Registration (Northern Ireland) Order 1976), in Switzerland (Section 46, sub-para. 1 Cc and Section 59 sub-para. 1 OEC ; Section 48 Cc and Section 74 sub-para. 1 OEC), in Turkey (Sections 241 and 252 Cct). In Italy, a person’s parentage can be established after death only if that person leaves children who could benefit from such parentage (Section 255 Cc), with the result that acknowledgments concerning lifeless children cannot be accepted. In Luxembourg a lifeless child is registered without any indication of first names but may be entered into the family record booklet and posthumous recognition is permitted (Section 336 Cc). Finally in Spain only a child that has lived 24 hours after the cutting of the umbilical cord and been entered into the register of births is given a surname and first names and entered into the family record booklet. If this condition is not fulfilled, the special sheet for aborted children then made out does not indicate the surname and first names of the child (Section 173 RRC) which cannot then appear in the family record booklet (Section 36 RRC).
43 Governed in Italy by Art. 2 of the Civil Code.
44 It is however important to note that some acts, extremely significant to the life and development of the child, can also be performed prior to reaching the age of majority: the issue is whether there is a lack of recognition or validation of such acts. Rights which may be acquired before the age of majority include the right to be heard in relation to the insertion of a natural sibling into their own family (such rights are acquired at sixteen years of age), a fourteen year old’s right to express their preference in the event of disagreement between the parents over the exercise of parental responsibility, or the right to be heard from the age of ten years old on issues pertaining to the child’s education in cases of legal guardianship.
To take actions with legal effect, the child must be represented by an adult, whether it is a parent exercising parental responsibility, or a legal guardian.
The Italian legislator likewise provides for situations of intermediate capacity of the child, which is acquired with emancipation. The child is automatically emancipated by the act of marriage, which gives them the right to carry out routine organisational acts (it remains the obligation of the guardian to assist in extraordrinary acts). Also emancipation occurs following judicial authorisation of the running of a commercial business, and the child even acquires full capacity to act in property matters.
45 Interpreted according to the recent decision of 5th June 2008 2008/431/Ec.
46 On this subject there are multiple bilateral and multilateral agreements; the following are illustrative: the Convention on the protection of children signed in The Hague on 5th October 1961; European Convention on the repatriation of children signed in The Hague on 28th May 1970; the Luxembourg Convention of 28th May 1980.
Furthermore, the existence of a bilateral agreement between Italy and the Government of the Lebanese Republic must be flagged, concerning the cooperation on the subject of the rights of the family of 15th July 2004 which came into force on 1st June 2005. This agreement instituted a mixed consultative Commission which had the function of facilitating visiting rights and the actual exercise of foster care, as well as the intervention in proceedings for the return of the child illicitly taken from their country of residence; the Hague Convention of 19th October 1996 concerns the jurisdiction, applicable law, and recognition and execution of decisions, as well as the cooperation over parental responsibility and measures for protecting children; the Convention of the Council of Europe laid open for signature on 15th May 2003 the personal reports concerning children.
Concerning the carrying out of financial provisions relating to children, it should be noted that Italy is signatory to the following agreements: the Convention on the recovery of maintenance abroad, signed in New York on 20th June 1956 brought into effect with the Law of 23rd March 1958 No.383 which conferred upon the Ministry of Internal Affairs the purely administrative jurisdiction, to assist actions relating to maintenance, and also ensuring they are put into effect, which go beyond adopting the necessary measures to ensure the payment of the same; the Hague Convention of 2nd October 1973 ratified and rendered executive with the Law of 24th October 1980 No.745 which focuses on the recognition and carrying out of provisions relating to obligatory maintenance: the Convention of Rome on 6th November 1990 on the simplification of procedures for the recovery of maintenance payments between Member States of the European Community, made executive by the Law of 23rd December 1992 No.524 which instituted a central authority with the task of facilitating the recovery of maintenance owed deriving from any type of judgment, authentic act or transaction. The authority must locate the debtor and then pursue the provisions.
47 Under French law the enforcement of decisions is entrusted to the Public Prosecutor who once informed of the failure to comply can arrange the intervention of the assisting legal official by the public order forces; loi 91-650 du 9 juillet 1991 e artt. 213 ss du nuveaux code de l’organisation judiciarie.
48 There are cases in which it is impossibile to enforce provisions, such as where a parent although having visitation rights, does not intend to exercise those rights.
49 The same sanctions are set out for the enforcement of visiting rights in Austria; sec. 79 e 110 of the Non-Contentious Proceedings Act; in Danish law Article 815 Civil Procedual Act; in German law para. 33 Non-Contentious Proceedings Act.
50 Article 238 Enforcement of Judgments and Protective Measures Act.
51 Article 13 ETS 160 – Exercise of Children's Rights, 25.1,1996.
52 In the UK the “Divorce Reform Act 1969” initiated the institution of family mediation, to facilitate reconciliation in matrimonial cases. It required a solicitor representing a divorce petitioner to file a certificate stating whether he had discussed the possibility of reconciliation and to give the petitioner the names and addresses of persons who were qualified to help in this respect. The real and true creation of the structure dedicated to family mediation owes its conception however in 1978 to a group in Bristol, providing “the first private service specializing in family mediation”: this concerned a small group of professionals (lawyers specializing in family law, social workers and a university assistant) offering a conciliation service available in court (strongly recommended by the Conclusion of the Finer Committee, instituted by the government in 1974 for all disputes relating to the dissolution of ties between partners). The group in Bristol recognised the need for a voluntary and independent family mediation service, which was available at the initial phase of the conflict and concluded with the reaching of an agreement on the guardianship of the children and their relationship with the other parent. The Bristol mediators encouraged lawyers and other public authorities to initiate mediation, and at the same time made themselves physically available for direct contact with the partners in conflict, ahead of and independently of any legal consultations.
The mediation centres, independent of the legal system but prepared to accept initiation by judges in cases considered appropriate for mediation, became more widespread in the UK in the 1980s. In London a pilot project in 1986 involving five very experienced family lawyers considered mediation based on an “interdisciplinary co-mediation”. As a result, the Law Society of England and Wales was forced to modify provisions for the jurisdiction of solicitors to allow them to play the part of mediators. The co-mediation met large success, to the extent that in 1988 the first “Family Mediators Association” was set up. However only in 1996 with the coming into force of the Family Law Act 1996 was the efficacy of family mediation effectively recognised, when obligatory participation of the parties was laid down, together and separately, in at least one sitting with a mediator in disputes concerning family issues.
In 1996 also in France family mediation was introduced: the Law of 22nd July 1996 No. 96-652 (which used the new title VI bis in the Nouveau Code de Procedure Civile) permitted french judges to nominate with the consent of the parties a third party “to listen to the parties and compare their points of view to allow them to find a solution to the conflict which they face.”. The maximum duration permitted by mediation in France is three months, renewable however by the request of the mediator, and is aimed at reducing the contentious nature of the civil proceedings. Only with the introduction of the institution of mediation in the Civil Code (Articles 255 and 373-2-10) taking effect with the Law of 4th March 2002, No.305 and the Law of 26th May 2004, No.439, did mediation become to all effects an active complementary tool to that of the judge, who can oblige the couple to participate in an informative meeting on mediation, how it is carried out, and its results.
53 European Congress, organized jointly by the APMF and the Association des Amis de Jean Bosco (Association of the Friends of Giovanni Bosco).
54 The recommendations of the Council of Europe in fact have immediate full effect in domestic law.
55 With the sentence handed down on 13th July 2000 in the case of Scozzari e Giunta c. Italia in Famiglia e diritto 2001, 5, it is important also to recall the part which establishes “In the presence of a conflict, regarding the rights of the child, between the natural parent and the individual charged with guardianship of the child, there is the risk that certain interests of the child, protected by the European Convention on Human Rights, are never laid open to the European Court on Human Rights: the children, therefore, can have access to the Court even, and indeed all the more so, if they are represented by a mother in conflict with the authorities, who criticizes the decisions and the conduct in light of the rights guaranteed under the convention.”
56 On this subject see also: Joëlle Long, I confini dell'affidamento familiare e dell'adozione in Dir. famiglia 2007, 03, 1432.
57 By the same token also the Court of Strasbourg in the case of R. e B. c. Italia.
58 The European Court on Human Rights, 2nd November 2006 in Rep. it. Fonti: Cass. pen. 2007, 5, 2232.
59 It is noted that in this area the hearing of the child is indispensible to protect the child’s best interests. That should not ignore the role of children’s social services and the school, who can provide reports to help reconstruct the de facto case and elements useful to reach a decision that guarantees the child’s well-being.
60 Such a simplified procedure requires the consent of the parents; in the absence of the same the Juvenile Court will decide upon the foster care.
61 Law 184/1983 as modified by Law 149/2001, Art. 4.
62 See: M. Dogliotti, Adozione e affidamento, in A.A. V.V., Famiglia e Servizi. Il minore, la famiglia e le dinamiche giudiziarie, (M.R. Spallarossa ed.), Giuffrè, Milano, 2001, p. 429 ss; V. Barela, L’affidamento del minore tra tutela giurisdizionale e intervento amministrativo, in Le adozioni nella nuova disciplina. Legge 28 marzo 2001, n. 149, (G. Autorino, P. Stanzione ed.), Giuffrè, Milano, 2001, p. 75 ss.
63 We refer to the research of F. Eramo, Manuale pratico della nuova adozione. Commento alla legge 28 marzo 2001, n. 149, Cedam, Padova, 2002.
64 Usually there is the following distinction:: private law orders such as parental responsability orders, or those which nominate an individual, such as the guardian of the child; and public law orders, namely provisions taking into account the suffering of the child in a particular family context culminating in the care of the child by a local authority or under its supervision, or the removal from or retention of the child in specific accommodation; hybrid orders. The latter provide for the involvement of social services to provide support for limited periods of time for the child’s needs (often to help in the family separation proceedings). A special case is then the exclusive jurisdiction of the High Court as conferred by the Supreme Court Act 1981, which has jurisdiction to assume wardship of a child; the child is subject to the authority of the court so that no action can be undertaken without its consent. The Official Solicitor is usually appointed as the child’s guardian ad litem.
65 Re P (Care orders: Injunctive relief)  2 FLR 385.
66 Re F (A Minor) (immigration:wardship)  Fam 125; R v. Secretary of State for Home department ex parte T  1 FLR 293.
67 Also the French system imposes the intervention of the public authority when the child needs to be cared for; in fact Article 375-3 CC establishes “Si la protection de l'enfant l'exige, le juge des enfants peut décider de le confier : 1° A l'autre parent ; 2° A un autre membre de la famille ou à un tiers digne de confiance ; 3° A un service départemental de l'aide sociale à l'enfance ; 4° A un service ou à un établissement habilité pour l'accueil de mineurs à la journée ou suivant toute autre modalité de prise en charge ; 5° A un service ou à un établissement sanitaire ou d'éducation, ordinaire ou spécialisé.” Such a provision must then be coordinated with the regulations for social assistance container in the Code de l'action sociale et des familles; Code de la famille et de l'aide sociale; and Code de la sécurité sociale.
68 A care order gives the local authority parental responsibility for child, a supervision order puts the child under the supervision of a designated local authority officier.
69 Such a definition is also provided by Article 1, para.2, DPCM 535/99
70 In this respect the phenomenon is particularly significant with reference to the migratory process of Albanian nationals to Italy. In 1997, the first Convention was signed with the Department of Social Affairs of the President of the Council of Ministers, within the ambit of a more general project of assistance between Italy and Albania, for the assistance, repatriation, and return to their country of such children. The convention has been renewed in subsequent years and in 2001 was extended to all foreign children unaccompanied and present on Italian territory.
72 Further to the Spanish case, it must be added that as a result of migratory flows to the Canary Islands in 2000, Spain was the subject of the Human Rights Watch 2001, whose mission was to verify the conditions of migrants in respect of fundamental human rights. The inspection revealed the serious conditions of foreigners to the extent that it was necessary to adopt a recommendation addressed to Spain which contained the following points: to supply immigrants with information on their current rights under Spanish law in a language comprehensible to them; to lay down a remedy for the lack of contact with the outside world; to supply information on humanitarian organizations and those which can provide information on access to a lawyer or social services; to remedy the health and safety conditions and to provide the necessary medical and healthcare assistants; and finally to use alternative measures for the detention of children in the receiving centres, and in general to apply the recommendations of the European Committee for the prevention of torture, as well as the appropriate European Convention for the prevention of torture and penalization, or inhuman and degrading treatment. .
73 Title VI of the Treaty on the European Union at articles K-K.9 governs cooperation between member States in the areas of justice and internal affairs. In this Title there are thus numerous arrangements for “issues of common interest” aimed at achieving the free movement of persons, including asylum policy, crossing external borders and the appropriate controls, immigration policy, and, in more general terms, the policy for citizens of third States, the fight against immigration, residence and illegal work by citizens of third States, the fight against drug addiction, the fight against international fraud, judicial cooperation in civil and also criminal law matters, cooperation with regard to customs controls, police cooperation aimed at preventing and fighting terrorism, the traffic of illegal drugs, and other serious forms of international crime (Art K.2).
74 Bariatti S., La cooperazione giudiziaria in materia civile dal terzo pilastro dell'Unione Europea al Titolo IV del Trattato CE, in Dir. Un. Eur., Giuffré, Milano 2001, Vol. 2-3, pag. 261.
75 In the plan of action of Vienna in 1998 concerning relations between third States and international organizations, it is reaffirmed that “the transfer to a community level of issues concerning asylum, inmmigration, and judicial cooperation in civil matters, will permit the Community - within the legal limits of the European Court of Justice (ECJ) regarding jursidiction outside of the Community – to exercise its influence at an international level in these areas”; on the other hand an opinion of the judicial branch of the Community of 5th February 1999 affirmed that the exercise of internal jurisdiction by the Commission would have deprived the member States of the power to enter Treaties with third States, which could compromise community rules. The ECJ has handed down decisions in various sectors governed by the Treaty. In its opinion 1/76, the Court furthermore clearly limited the exclusive foreign jurisdiction of the Community to taking on international obligations necessary to reach a specific objective imposed by the Treaty. In the subsequent opinion 1/94 the Court affirmed that “the Community, when it included in its domestic legislation clauses relating to the treatment to reserve to citizens of third countries or expressly conferred its own institutions with jurisdiction to negotiate with third parties, acquired an exclusive foreign jurisdiction relating to the above-mentioned actions. The same is true in any event, also with the lack of an express clause which authorizes the institutions to negotiate with third countries, when the Community has achieved a complete harmonisation of the regime for access to an independent activity, since the maintenance by the member States of a certain liberty to negotiate with third countries could have an effect ... on the adopted community regulations”.
77 The European Council at Tampere then stated that they intend to guarantee conditions of safety and justice accessible to everyone. In the European arena of justice citizens will be able to turn to “the courts and authorities of any member State with the same facility as to their own. Criminals must not be able to exploit the existing differences between the legal systems of the member States. The sentences and decisions must be respected and carried out in all of the Union, but at the same time safeguarding the fundamental legal security of citizens in general and business persons. The legislation of the member States must be made for the most part compatible and convergent.”
78 Regulation (CE)No. 343/2003 of the Council, of 18th February 2003, which sets out the criteria and mechanisms to determine the appropriate State member for the consideration of an application for asylum presented in one of the member States by a citizen of a third country, published in the official Gazzetta No. L.050 of 25/02/2003 pag. 0001 – 0010.
79 In effect the Nice Charter has brought, with reference to the care of minors, a significance much wider than the United Nations Convention of 20th November 1989 on the rights of the minor: in the Charter in actual fact (varying from the UN Convention 1989) the right of the child to be heard is subordinate neither to the existence of an effective capacity to form his or her own views, nor to the relevance of the issues which interest the child (detecting such relevance only for the purpose of considering the child’s point of view), but constitutes the direct consequence of the right of the child to participate in decisions involving their own family.
The right to self-determination by the child is not however recognised, until the child reaches majority age and and is also subject to parental authority, which enables the parents to “make provision for the education and instruction of their children based on their religious, philosopical and pedagogic beliefs.” (Article 14 Nice Charter ).
80 Established with R.D. No.1404/1934.
81 ETS No.160, Strasbourg 25, I, 1996.
82 Article 12 United Nations General Assembly Convention 1989, signed in New York on 20.11.1989: “The States parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.” .
83 Article 155-sexies. of the Civil Code.: “..The judge is to provide, furthermore, for the hearing of the minor child who has reached twelve years of age, or even younger where the child is capable of forming his or her own views.”.