Italy: Giambrone Obtains The First Enforcement Of A UK Special Guardianship Order In Sardinia

The care of minors, children under the age of majority, is considered to be of paramount importance to local authorities in Europe who have a duty to step in to protect children should their parents be unable to do so.  Parents of a family may have a number of reasons why they are unable to care for their own children, long term ill health, drug abuse or even death.  However, regardless of the reason, the State Authorities in every country has a duty to ensure that those children are protected and safe; they have an obligation to seek out the best solution for their custody.  Should one or both parents have demonstrated that they are unable to provide a sufficiently adequate or a safe environment for their children increasing the local authorities will seek a guardian that is part of the family or close circle of friends so as to provide familiarity for the child and also to maintain the family connection.  This can become complicated when the family are not nationals of the country that they are living in.

Giambrone has a robust cross-border family law team that frequently deals with the challenging matters involving the complete breakdown of the family unit.  Societies throughout the world are more cosmopolitan than ever before and the free movement throughout the EU has resulted in a significant number of families living away from their country of birth and Giambrone’s family lawyers are increasingly asked to advise on the difficult question of Special Guardianship.   

Alessandro Gravante, senior partner, has frequently been approached by the Education and Children Services across the UK to provide a legal opinion on matters related to the children of Italian citizens who have come under their care.  The following relates to the scope of the first Special Guardianship order in Sardinia:

Whilst Alessandro was not given access to the papers relating to the proceedings, however, he was provided with a précis of the background to the case, which amounted to the following facts:

• the local authority shared parental responsibility in care proceedings with the parents of the child under an Interim Care Order
• the mother was unable to care for her child and had requested that her child was placed in the care of her Italian parents
• an initial assessment of the maternal grandparents had been positive and the local authority had instructed an independent social worker to travel to Italy to access the grandparents face to face.

Provided the full assessment of the maternal grandparents was satisfactory the local authority wished to place the child with the grandparents in Italy.

Special Guardianship orders are an innovative solution between adoption, a permanent solution that cannot be overturned; and the State care system.  The option provides a link to the child’s family allowing the potential for reconciliation with the birth family at a later date if the unsuitable situation changes and improves.  A Special Guardianship Order involves appointing one or more individuals as a child’s special guardian until the child reaches the age of majority or the Order is revoked by the court.  Such an order provides a legally sound placement and confers parental responsibility to the Special Guardian which can be implemented to the exclusion of any other person, excepting another Special Guardian.

As mentioned previously, the child’s parents do not lose parental responsibility they retain it but cannot exercise it, nor can they request that the Order is revoked, unless the court initially gives permission to do so.  A Special Guardian has responsibility for the day to day decisions in respect of the child, such as matters relating to education but they cannot make the life-altering decisions like changing a child’s surname or overriding a parent’s refusal to consent to an adoption.  In the day to day decision making, the Special Guardian’s opinion takes precedence, should a conflict arise. 

Alessandro was able to draw a parallel between the English law and Italian law for which there is a similar procedure for children who are in the regrettable position of not having a parent in a position to look after them. The Italian procedure is called “affido” or “affidamento familiare”, meaning child custody. An affido can be applied to a single individual or to more than one.  An affido can be terminated only with an Order issued by the Authority under which it was granted if it is considered to be in the child’s best interests, due to the child’s family difficulties coming to an end or that the continuance of the Order would be detrimental to the child.  Where the affido is to be applied to the child’s relatives, a relative extending to the fourth degree can be considered.  

There are variations between the English Special Guardianship and the Italian Affido; for example, with regard to the affido, if is there is evidence of abuse with the family parental responsibility can be removed. Also, the placement of a child with the extended family to the fourth degree does not convey parental responsibility to them without the intervention of the Public Authority.

With regard to international law, the main international rules to be considered are:

 Council Regulation (EC) N. 2201/2003 of 27 November 2003 concerning “jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility” and the Hague Convention of 19 October 1996 on “Jurisdiction, Applicable law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children”, finally receipted in Italy with Law n. 101 of 18 June 2015 and in force from 1 January 2016.

Alessandro gave due consideration to all aspects of the law, within the jurisdictions and the international law, the enforceability, the practical steps required for placing a child in Italy and which Authorities that must be consulted and where and with whom accountability lay within Italy, which led to a ground-breaking decision to grant the Special Guardianship for the first time in Sardinia on the basis of Alessandro’s legal opinion.

The decision to uproot a child from the country of their birth to be brought up in a foreign country is never taken lightly but the use of Special Guardianship Orders provides a way to keep the child within the family in the hope of a brighter future and also leaves the door open for a relationship with their birth family at a later date.  Giambrone’s cross-border family law team are frequently involved with complex family matters and have gained a reputation for incisive assessment together with comprehensive legal expertise to provide innovative solutions to the multifaceted cases that they frequently advise on.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.