INTRODUCTION

Child participation is experiencing considerable development in Italian family law at the legislative and judicial levels, and is also progressively taking hold in the policy-making field, where some authorities have cautiously started introducing child participation as a form of consultation.

The fragmentation that historically and culturally underlies the Italian system in family law proceedings, and which traditionally divides competence between ordinary and juvenile courts, also concerns the child's right to be heard, enshrined in Article 12 of the UN Convention on the Rights of the Child (UNCRC). The right to be heard, in fact, is not uniformly applied in Italy, as it does not exist as a national (neither procedural nor substantive) rule, which would ordinarily safeguard its effective implementation throughout all types of family law proceedings.

In general, ordinary courts (tribunali ordinari) deal with parental responsibility issues, mainly in the context of separation and divorce proceedings (custody, placement, maintenance), while juvenile courts (tribunali per i minorenni) deal with requests for limitation and loss of parental responsibility (so-called de potestate proceedings). In some circumstances, ordinary courts may ‘ attract ‘ juvenile courts ‘ competence (vis attractiva).

Juvenile judges, ordinary judges and public prosecutors work closely with all key actors involved in the proceedings, such as social and health services, communities, attorneys, and local authorities. They mainly rely on social services and local authorities during proceedings and to have their decisions enforced.

The Italian population, on 1 January 2020 comprised 60,317,000 residents, of whom 9,433,159 were children. In the year ending 31 December 2019, there were 184,088 marriages, 85,349 divorces and 94,474 separations (absolute values); per 1,000 marriages, 53.6% of separations and 40.5% of divorces involved children.

STATUTORY PROVISIONS

Children's participation in family law proceedings has been transformed in the Italian legal system. The hearing of the child was first introduced in 2006, within parental responsibility proceedings, where the new Article 155 sexies of the Italian Civil Code (c.c.) established a new obligation for the judge to hear children aged 12 years or over, or younger if capable of discernment (i.e. of forming their own views). However, the current legal framework is mainly attributable to the reform of 2012 – 2013 when significant changes to substantive and procedural family law were made.