Posted by on Apr 30, 2020 in FAMILY LAW UPDATES, LEGAL UPDATES

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The enforced distance between separated parents and their children has obviously been problematic for many families in this emergency situation.

The Court of Bari ruled on 26th March 2020 that visting rights of a father with his child, who is resident in another Comune in Puglia, should be suspended. The court observed that the national lockdown measures which had been imposed by the government on movement around Italy in Article 1(b) of D.P.C.M. 22nd March 2020, should be applied rigorously and universally, even if this meant sacrifices for the family, for the greater good of ensuring public health. The court also found that given the currently emergency the limitation on personal freedom for health reasons takes priority over the rights and duties of the parent and child. The father was only permitted to see the child via video conference on the dates and times set out in the court order.

This court ruling conflicted with the government guidelines that parental/child visiting orders should be respected.  This question led to many applications to the Italian courts for clarification, particularly in April, the month in which the Easter holidays fell this year, as well as the 25th April holiday of Festa della Liberazione.  It is common in separation orders (or orders regulating visiting rights for children of unmarried couples), for a child to spend half of each period of school holidays with the other parent they do not usually reside with.

There has been a somewhat inconsistent approach by the courts, some of which have upheld visitation rights, while others have taken a more cautious approach, usually depending on the distance involved and the apparent risk posed.

The Court of Vasto in Abruzzo (judgement of 2nd April 2020) ruled in relation to an application for a father in Campania to have his daughter stay with him for the Easter holidays. The Court upheld the Bari decision and rejected his application, stating that the father had recently returned to Aversa from the high risk area of Milan where he had been working and it could not be shown that he had rigorously respected the rules in force to avoid contagion. The court instead ordered visitation via video conference each and every afternoon.

The Rome Court took a more lenient view than Bari. This was one of a number of reported cases of a parent deciding unilaterally to move to another part of Italy with a child where they may feel safer, but in defiance of the other parent’s rights. The Rome court ordered a mother, who had taken her 6 year old child on holiday to the mountains in Trentino to escape the stress of the city, to return child to Rome to visit her father, as “the father-child relationship posed no risk to the child”. The court commented that the child may even be safer in Rome than in the North of Italy. (Report published in Sole24Ore 7th April 2020). The Court of Trani also took a different view to that of Bari and upheld the visiting rights of the other parent.

In dealing with applications to uphold visiting rights, the courts have generally upheld the principle of “bigenitorialità” recognising the right of the child first and foremost to have equal access to both parents who are each responsible for the child’s well-being and development, where they have joint custody “affidamento condiviso”. Judges have said there is a need for a balancing act between the need to protect public health and the rights of the child and the parents, but the current epidemic should not be used as an instrument to restrict or violate these rights. 

As in the Vasto decision, the courts have frequently cited the “digital platform”, ie use of video conference on Zoom, Facetime or Whatsapp for example, as a way in which visiting rights can continue, but even this requires collaboration and agreement between the parents. The Court of Terni in a decision on 30th March consented to video conferencing being used even in a case of protected visitation (“incontri protetti”)  supervised by the social services.

The Presidential decree of 26th April which implements Phase 2 of the lockdown and will be in force from 4th May to 18th May 2020 has also confirmed the right of parents to move between Comuni and the Regions for the purpose of visitation carrying the necessary self-declaration certificate. This will remain subject to the courts power to limit visitation  where they consider that public health issues take priority.