In the Italian legal system specific protection is granted by law to minors, in most instances irrespective of their nationality, including in migration-specific legislation.

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In the Italian legal system specific protection is granted by law to minors, in most instances irrespective of their nationality, including in migration-specific legislation.

In the context of the norms stated by the Single Act on immigration, as amended by Law 189/02 the interest of the child must be taken into consideration with absolute priority in all administrative and judicial procedures relating to family reunion and affecting one or more minors, in accordance with the UN Convention on the Rights of the Child, art 3.1, which has been implemented in Italy through national law 176/1991.

Title IV of the Single Act on migration is devoted to “Right to family unity and protection of minors”. To the latter issues, in particular are devoted articles 31, 32, and 33 with detailed special measures for protection of children.

A special Committee for the foreign Minors is established within the Prime Minister’s Office who supervises measures and policies which relate to minors, in particular non accompanied minors who come to enter on various grounds within the national borders and monitors the compliance of such measures with UN Convention on the Rights of the Child of 1989 and its implementing law in Italy, law 176/1991 In particular the Committee is competent to decide on the feasibility and modality of the repatriation of the non accompanied minor in the country of origin in some specific cases. (law 189/2002 art.33).

Minors are not entitled to their own stay permit or card, separated from their parents’ or guardians’ permit up to the age of 14 (with the exceptions of unaccompanied children) Minors are added on to the “stay permit” or “stay card” of the adult parent (or of both parents) they are dependent upon. Up until the age of 14 the legal status of the foreign minor follows the status of the parent on whose stay permit or card permit the minor is added, in case of disparity of legal status amongst the parents, the minor has the most favorable of the two statuses. At the age of 14 the minor is provided with his/her own stay permit for family reasons, valid until the age of 18 or card permit (law 189/2002 art 31) A the age of 18 the minor can be provided with a stay permit for study, work or health care reasons. The stay permits which are given to minors with these and with other means indicated in art 32 of law 189/2002 are subtracted from the quotas of entry of non-EU citizens to be defined annually (law 189/2002, art 32.1quater)

The Children’s Court is competent to decide on many matters relating to migrant children. For instance on expulsion of a foreign minor, the decision is taken upon request by the police authorities by the Children’s Court.

Some specific rights may be conferred upon certain adults who are non-EU citizens  because of their relation with children who are nationals and residing in Italy. So the “stay permit” may be conferred upon the foreigner who is a parent, including non married parent of a child below the age of 18 who is Italian national and resident in Italy. In this case the stay permit for family reasons is granted without consideration for the lack of a valid document permitting the parent’s permanence within the Italian borders, as long as the parent has not lost or has been denied parental responsibility  for the child according to Italian law (law 189/2002 art 30.1(d)). Also the Children’s Court can authorize, even in cases which do not fall within the provisions of the Single Act, the presence or permanence of the parent or relative of a minor who is de facto within the national borders for serious reasons connected with the psychological and physical development of the minor and of his/her health conditions

The parent’s authorization is revoked when the causes which have led to its adoption cease to exist.

In the case of trafficking, or favoring the entry within State borders of a minor for his/her exploitation in illicit activities, criminal sanctions  are increased in comparison with the sanctions applicable if the victims of trafficking are adults

The increase in the migratory phenomenon has also led to an increase in the cases of parental child abduction including of children of migrants who may abduct them back to their countries of origin. Italy is a party to the Hague Convention against Parental Child Abduction which establishes specific mutually recognized judicial procedures for the return of the children; many of the countries where migrants come from and where abducted children have been taken, are however, not parties to the Convention, with the result that the return of the minors is only seldom made possible and even so with extreme difficulties and often only through enhanced and high level diplomatic action.

Analysis provided by: Antonella C. Attardo PhD (History of Law), Italy.

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