Protecting Children Against the Different Kinds of Violence S/He Can Suffer From, Damaging

Final Report: Italian translated into English

SOLIDARITY CENTRE OF REGGIO EMILIA

ITALY FINAL REPORT

CHILD MISTREATMENT AND THE PROTECTION OF CHILDHOOD

Introduction

Protecting children against the different kinds of violence s/he can suffer from, damaging not only his/her physical wellbeing but also his/her physical balance and human development, is a topic that only has been exposed to the public opinion and the Italian legislators during the last ten years.

In the last years, since the problem has been turned over in the collective conscience, which has always favoured adults’ interests instead of children’s, a greatest sensitiveness has been developed against the child violence phenomenon. Mass media have dealt with this social plague. Despite this, there are still many mistreated and sexually abused children, as well as children exploited by adults, abandon by their parents and lacking their basic rights.

Here there is a list of the lacks that evidence a substantial underestimation of the phenomenon by the judicial order:

a)  There are no tools that evidence the real importance of the phenomenon (the statistic details of the ISTAT regarding criminal matters focus on the criminals and their features)

b)  There is a lack of an organic civil protection, as the only hypothesis regarding family area taken into account is that of limiting interventions or of eliminating the paternal potestas. Concretely, just the possibility of distancing the child from his/her domicile and not of the parent abuser, keeping the child in his/her natural area.

c)  There is not any serious way of intervention that protects against extra-family abuses, particularly, the institutional ones.

d)  There is a lack in the ordering of a unitary definition of physical, sexual and psychological violence and physical, affective and educational neglect. So the notion of violence and the possibility of a social or judicial intervention is left to the discretional nature of the civil servant.

e)  There is a lack of an organic strategy on the social custody regarding these phenomena by the local authorities.

f)  There is not specialised child police.

g)  There is a lack of sensitisation activities of the medical and scholar civil servants that allow determining in time the symptoms of the abuse and to immediately lie out protective and rehabilitative interventions.

h)  There is a lack of rehabilitating strategy of the authors of the violence and abuses.

i)  There is not an organic criminal system of child protection: the penal code, in fact, has not dedicated a specific section to the crimes against children. Specific dispositions are spread in different sections, in which the judicial well is not the child but diverse judicial wells (the family, patria potestas, public morality, etc.)

Main dispositions of the Law regarding children rights and their tutelage, child protection, mistreatment and child abuse.

Constitution

Many articles of the Italian Constitution regard to different children rights. The art.2 regards the inviolable human rights, the art. 3 set the principle of equality between individuals and the art. 29 protect the family.

The art. 30 underlines that parents first have the duty and then the right to their children’s education and states parents’ duty to maintain, educate and instruct their children, even those born outside marriage. It recognises unacceptable the discrimination between children due to parental status. In cases of parental incapability, the Law disposes those duties to be carried out by other individuals or institutions.

The art.31 compromises the Republic to facilitate the family, with economical measures and other aids, the family education and the accomplishment of duties related to motherhood, childhood and youth protection, favouring the necessary structures (assistential structures, of spare time, of information and education); the art. 34 assure the right to education and training, the art. 35 and 37 tutelage the right to have a professional job and training, imposing the setting of a minimum limit of age to get a paid job and the adoption of specific rules to control the work on children.

Civil Code

The art. 147 states the duties of parents to their children. The art. 148 set the parents’ charges, especially those related to the maintenance of the offspring. The art. 151 foresee the personal separation of the spouses. The art. 155 illustrate the dispositions made by the judge regarding children in a legal separation. The art. 250 foresee the recognition of illegitimate children. The art. 316 regulate the married parents’ patria potestas. The art. 317-bis regulates the patria potestas of illegitimate children. The art. 330 foresee the removal of the patria potestas when the parent violates or neglects his/her duties or abuses of his/her power with great damage to the child. The art. 333 (behaviour of the parent who causes harm to his/her children) attributes the judge the possibility of adopting the suitable measures to remove children from the family domicile, when the behaviour of one or both of the parents is harmful for the child but not enough to suspend the patria potestas. The art. 343 (children’s tutelage) disciplines the tutelage.

Other civil laws

Law of the 1st of December of 1970, no. 898, modifying the Law of the 6th of March of 1987, no.74 (divorce): it has introduced in our civil ordering the institution of the civil effect repeal (for agreed marriages) or the dissolution (for civil marriages) of marriage. It disciplines the cases in which it can be asked and the measures that the judge has to adopt, with special considerations towards little children.

Law of the 19th of May of 1975, n. 151 (reforming the family law): it sets, for the first time in our ordering, the statement that the parent is not the children’s owner, the parent cannot be out of public control when he “disposes” of the child (ad. It is in cases of separation or custody). Boarding a child on an educational institution is not the adequate solution to his/her need of socialisation. The Law also states that the potestas over children does not constitute a power over children but for children; each child, no matter their parents’ status, has to have equal rights; and there is an interest on children autonomously protected and cared.

Law of the 4th of May of 1983, n. 184 (family custody and adoption): it recognises the child’s right to a family. It states that, in cases of temporary family difficulties, the more suitable solution is the family custody, which function is to ensure the child other family environment, the instruction, the education and maintenance. It recognises the social services not only as tools to detect situations of risk, but also as the creators of appropriate situations to overcome personal and family difficulties.

Law of the 28th of August of 1997, n. 285 (“Dispositions for the promotion of the rights and opportunities of childhood and adolescence”): it has instituted The National fund for Childhood and Adolescence, in the Government Cabinet. It can intervene at a national, regional or local ambit in order to promote the rights, life quality, development, self-identity and socialisation of children and adolescents. This would be done favouring the natural, adoptive or tutelage family, according to what was said in the Children’s Rights Convention (N.U., 1989), which became valid in Italy in 1991. The Social Services Department of the Presidency of the Council, the creation of an information, promotion, advice, and monitoring and technical support service to help the Law being accomplished foresees it. For that purpose, the department counts with the National Centre of Documentation and analysis about childhood and adolescence (instituted with the Law no. 451/1997 and with head office in Florence, at the Innocent People Institute) which develops supportive functions at the National observatory for the childhood.

Criminal Code

The tutelage of physical wellbeing

Infanticide (art. 578 c.p.)

Abandon of the child and omission of help

Abuse of corrective or disciplinary measures (art. 571 c.p.)

Mistreatment within the family or against the child (art. 572 c.p.)

The protection (tutelage) of sexual freedom

Law 15th of February 1996, no. 66 (“rules against sexual violence”), which has included new hypothesis of crime:

-  sexual violence (art. 609-bis c.p.)

-  sexual intercourse with minors (609-quarter)

Child corruption (908- fifth c.p)

The protection (tutelage) of freedom

Agreed removal of minors (art. 573)

Removal of incapacitated people (art. 574)

The protection (tutelage) of correct family relationships

-  Violation of the family attendance obligations (art. 570);

Law of the 3rd of August of 1998, no. 269 (c.d. Law against paedophilia in adhesion to the principles of the Convention about children’s rights (N.U.O., 1989). Other criminal hypothesis regarding the harms to the child have been stated: children’s prostitution (art. 600-bis c.p), children pornography (art. 600-third c.p), confiscation of pornographic material (600-fourth), tourist initiatives related to the exploitation of children’s prostitution (art. 600-fifth c.p)

Other laws regarding criminal matters:

D.P.R. 22nd of September of 1998, no. 448 (“Approval of the dispositions in the criminal process in the charge of offenders under age”)

Organisations proposed for children’s tutelage

Taking into account the complexity that characterises the Italian panorama regarding children, we will try on the following pages to rebuild synthetically the most recurrent and unifying characteristics of the carried out interventions and of the proposed organisations for the different duties.

The Italian legislation does not allocate competencies regarding children to one judicial medium, but to a plurality of them: the Juvenile Court, the Ordinary Court (Criminal and Civil), the Tutelary Juvenile Judge, the single judge and the solicitor of the Republic.

If the child, for example, is a legitimate one (born from a marriage), the competence to decide over his/her care relies on the Ordinary Court and the procedure of the custody it is introduced in the wider procedure of separation or divorce. However, if it is a natural child, the potestas to decide over the care relies on the juvenile court.

Such a fragmentation of competencies does not correspond to any rational criteria, and it seems to be casual. It does not ensure an appropriate tutelage of the child and it makes difficult to understand, in some cases, which is the competent judge.

Sometimes, it occurs that different judges interpret a case in different ways (i.e. Ordinary Court and Tutelary Juvenile Court) and there is not an agreement among actions against the individual who abuses and interventions favouring the child as a victim.

This is a brief summary of the systems in charge of taking care of the children.

JUSTICE

·  Juvenile Court (criminal and civil section): it is a specialised ordinary justice medium placed in every seat of the court of appeal (normally at the head of the party of each region: Emiglia Romagna and Bologna).

It adopts procedures that limit or remove the patria potestas whenever the child suffers from damaging behaviours done by one of the relatives (art. 330 and 333, c.c.). It decides which of the parents will have the custody of the child and regulates the visits of the one that does not have the custody. It judges criminals under 18. The criminal child is under protective measures c.d., administrative, constituted by different kind of interventions by the Juvenile Court that must recover the child’s personality, favouring the social reinsertion, (see the D.P.R. 22nd of September of 1998, n. 448 that has instituted the children’s new criminal process).

·  Ordinary Civil Court: It is placed at the head of the party of each province. It has civil competence to provide the custody of the legitimate children in case of separation or divorce, as well as to rule the relationships between parents and children (i.e. right to visits of the parent that does not have the custody). It also has competence to rule the economical relationships between legitimate parents and natural parents (i.e. to determine the quantity devoted to the children’s maintenance). Regarding criminal matters, it has competence to judge the authors of crimes against children.

·  Tutelary Judge: it is located at every Ordinary Court and has a residual competence (art. 38 disp. Att. c.c.), and it intervenes where the Juvenile Court and the Ordinary Court are not competent.

In particular, the Titular Judge names the tutors, gives the custody and monitors the functioning of the procedures related to the agreed family custody. He would have to watch the institutions where children are allocated and he watches and gives advice about the progress of the pre-adoptive custody. He also watches the conditions established by the ordinary judge regarding parents-children relationships; he authorises the interruption of children’s pregnancy and the transaction for the necessary documents to go out of the country when they have children under age (no matter if they are married or not). He also takes part when separated couples do not agree on important decisions concerning the children (education, scholarship, religion, surgical operations, etc.).

POLICE

·  Officers of Court: It is the whole formed by all the police forces (Carabinieri,State Police, Finance Guard) at the judicial authorities disposal, with the aim of detecting offences, developing the inquires, preventing from the ulterior consequences of offences, securing the evidences of them, finding and imprisoning the guilty persons. From a functional point of view, the whole of the bodies that compose the officers of court depends on the Republic Prosecutor; from an institutional point of view, each body depends on the different ministries (Ministry of defence: Carabinieri; Home Office: State Police; Treasury: Finance Guard).

·  Police Headquarters: It is the provincial public security office in which the State Police has the head office, and that depends on the Home Office.

Duties:

-  Tutelage of the public order

-  Control of people

-  Detection of offences (reception and redaction of the accusations and actions)

-  Officers of Court

-  Issuing of authorisations, emigration documents and licenses (resident card, passports, possession of weapons, etc.)

Recently, it has been created a Children’s Office, which is a specialised police section that pays attention to the offences perpetrated by and against children.

·  Carabinieri: It is a military body that depends on the Ministry of Defence that develops the intermediary role between the army and the police. It has a detailed distribution all over the territory: there is a Carabinieri post in each commune.

Duties: