There is a clear duty of care to assist and protect children who are separated from their parents, particularly if their parents are foreign nationals and they are not in their home country. There can be many reasons for such a situation, the parents' poor health for example which requires Local Authorities across the world, including in the UK, to step in and protect such children and find the best alternative solution.
Giambrone & Partners have dedicated expertise to assist the Local Authorities to establish and regularise the child's legal status in support of their legal duty to ensure that the child is able to remain in the UK whilst new arrangements for the care of the child are being sought.
Giambrone & Partners has assisted in many cases where international children under the age of majority born to foreign nationals are placed with their overseas relatives under Special Guardianship. Giambrone & Partners in has capacity in this highly specialised legal area within its multi-lingual family law team, to advise Authorities and their Children Services by providing legal opinions on matters related to children of foreign nationals and assisting with Special Guardianship Orders.
Alessandro Gravante, senior partner, commented "Special Guardianship is an excellent solution particularly when the parent or parents are expected to be able to resume the care of their child in the future. An individual, usually a close relative, is appointed and assumes parental responsibility for the child. The parents retain parental responsibility but they cannot invoke it whilst the Special Guardianship Order is in place." Alessandro also remarked "a Special Guardian has day-to-day responsibilities for the child but cannot make radical decisions such as changing a child's surname or overruling the parents' objection to adoption. A Special Guardianship Order cannot be overturned and will only cease when the child reaches the age of majority or the court revokes the Order."
The recently launched UK charity Children and Families Across Borders (CFAB), the UK member International Social Services (ISS), has appointed Alessandro Gravante for assistance with special reports, drawing on his extensive experience, legal expertise and reputation for the ability to make perceptive assessments.
Special Guardianship Orders are selected when adoption is inappropriate and an application can be made by many people associated with the child, such as an existing guardian of the child, a relative or a Local Authority foster parent with whom the child has lived for one year, a person who has the consent of all those that have parental responsibility for the child, a person with whom the child has live for three out of the previous five years and a person who has leave of the court to apply. The child themselves can also apply with leave of the court providing the court is satisfied that the child fully understands the situation.
The court will only grant a Special Guardianship Order if it is satisfied that there have been extensive enquiries into the suitability of the guardian and their situation. Once granted an Order can be varied, in certain circumstances but an application for the variation of an Order by a person who is not the child will only be considered if the court is satisfied that there has been a considerable change in circumstances from when the Order was first made.
There is a similar procedure in Italian law for children who are in the 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 "affidamento familiare can be applied to more than one child if necessary and cannot be terminated other than with an Order issued by the Authority under which it was granted. This will only be considered when it has been established that the child's best interests will be served by such a termination and the continuation of the Order would be detrimental to the child.
It is preferred that a child's family member is appointed to care for the child in the absence of parents and the child's relatives extending to the fourth degree can be considered. Whilst there may be some variations between the English Special Guardianship and the Italian "affido" but the two procedures are very much the same.
Alessandro Gravante has extensive expertise in Family Law, and in particular in cross-border divorce and separation proceedings and International child abduction proceedings. He regularly provides his expert opinion to foreign Courts and Authorities on Italian Family Law and Child Placement abroad and he has been heard at the South Gauteng High Court in Johannesburg, South Africa, as an expert on Italian Family Law in complex cross-border divorce proceedings. Alessandro has regular involvement in the expert determination of UK Courts on Italian civil and commercial law; among others, he assisted the High Court of Justice in London – Family Division, the Court of Cook County, the Kingston Upon Thames County Court, the Winchester County Court, the Nottingham County Court, The Birmingham County Court . He is a fellow of the International Bar Association (IBA) and International Child Abduction Lawyers Italy (ICALI).
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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.
