INTERNATIONAL CHILD ABDUCTION "THE HAGUE CONVENTION: INTO THE FUTURE" 30 March 1996 The London Welsh Centre ITALIAN HAGUE APPLICATIONS PROCEDURES by Roberta Ceschini Sinisi Ceschini Mancini & Partners Via Francesco Carrara, 24 00196 Rome TEL (39) (6) 322-1485 FAX (39) (6) 361-3266 1. INTRODUCTION It is a pleasure to finally have a opportunity to illustrate the Italian Hague experience after having waited so long for Italian Implementation of this Convention. As you may know, Italy only recently ratified the Hague and European Conventions with Law No. 64 of January 1994, which fully implemented both Conventions. Due to a delay in the deposit of the ratification instrument, the Hague Convention unfortunately only came into force on the 1st of May 1995. I say unfortunately due to the fact that in Italy in the past, the combination of bureaucracy and the lack of the Hague Convention has meant that dealing with child abduction cases, or cameo for the enforcement of visitation rights, has been a nightmare for parents and a very real challenge for the lawyer. Our colleague Anne-Marie Hutchinson, with whom I have been working recently on a pre-Convention case of child abduction of English children to Italy, can testify how impossible it was to have the visitation rights enforced, and how interminable and difficult it proved to have the children returned to England in the lack of any international legislation. The situation is certainly much improved now that the Convention has been functioning in Italy for almost a year. However, the Italian application procedures of the Hague Convention have not yet reached total efficiency and many steps forward still need to be taken to have the Convention fully and productively enforced. As Italy is the last to arrive in this matter, I shall omit reference to the Convention's articles which you most probably know better than I, due to having used them extensively during the past year. You really only need know that Italy ratified the Convention without reservation and that, therefore, the full text of the Convention in applicable in the Italian territory. I shell focus on the Critical issues relating to the use of the Hague Convention in Italy and on Italian implementation rules. I trust this will give you some background information, and suggestions on how to deal with the Italian authorities when involved in a Hague case in Italy. 2. THE CENTRAL AUTHORITY Pursuant to the convention, the Ministry of Justice and specifically the Department of Juvenile Justice is designated as the Central Authority. The address is: Ministero di Grazia e Giustizia Ufficio par la Giustizia Minorile Divisione II Via Giulia 131 Tel: (39) (06) 6880 7139 - 6880 7125 The Central Authority is currently staffed with three Judges, which is certainly a limited number if compared with the distressing increase of child abduction cases. The lack of an appropriate number of Judges, in addition to the still incomplete organization of the Central Authority offices, is an initial problem which often creates delays in the management of files and cases. The Central Authority is authorized to request the assistance of the Police and, to this purpose, a special division for Minors has been created. In addition, the Central Authority is permitted to request specific assistance from any qualified governmental administrative body. The governmental body whose assistance is most requested is the so-called "social services", a special department of Local Health Units formed by professionals specializing in psychology and/or sociology which are often appointed to process appraisals or to provide assistance in the most problematic cases, such as, for example, forced removal of children or visitation rights to be effected under supervision. The specific reference to "any qualified governmental administrative body" prevents the Central Authority from requesting assistance from private professionals, including lawyers. 3. THE PROCEDURE a. The Application In Italy, application under the Hague Convention is to be filed with the above mentioned Central Authority, which, through its staff of three Judges, makes a preliminary screening to verify that all necessary documentation is in order. This preliminary screening procedure generally takes a week to ten days. In this respect I must mention that the Central Authority is very efficient: the qualified Judge maintains direct contact with the applicant who is promptly informed should the file be missing any important document. It is important that the application be duly accompanied by documents supporting the request, and providing all the necessary and available information. It is always advisable to attach a statement or order to the application, issued by the qualified authority in the place of habitual residence of the child, stating that the child has been wrongfully abducted or not returned. When such a statement is missing, it in usually requested by the Italian Central Authority, pursuant to article 15 of the Convention. Therefor, to avoid a delay it is crucial to prevent such a request. Although English and French are the official languages, it is advisable to provide translations of all documents filed, in order to avoid delays incurred whilst the Central Authority arranges for translations to be made. No sample forms are provided by the Central Authority to demonstrate how to draft an application. No filing fee or stamp duties are required for docketing the request with the Central Authority. The request can be forwarded by mall, or filed directly with the Secretary of the Central Authority Office. Legal assistance is not mandatorily required. The petitioner is permitted to personally file the request. As opposed to many other countries, the Central Authority does not provide automatic Legal Aid to those people choosing to be represented by counsel. According to Italian law, Legal Aid is only granted to those who can prove minimal income, with no exception for any matter whatsoever. The Central Authority is not permitted to provide advice as to counsels specializing in Hague cases which, in any event, number only a few in Italy. I must say that this is one of the loop-holes in the Italian implementation of the Hague Conventions: the applicants cannot rely on the hope of receiving Legal Aid, but are instead basically forced to require representation by counsel due to the lack of pre-drafted application forms and the need for translations, and so on. Simply, if the parties do not hire specialized counsel, they risk being subjected to several delays and we all know only too well that when dealing with a child abduction came, no delays can be permitted. However, due to the Italian law on Legal Aid, I do not anticipate seeing the creation of an automatic Legal Aid pool in the near future. b. The Public Prosecutor After preliminary screening, the Central Authority delivers the file to the Public Prosecutor of the Juvenile Court in the place where the child is located. When the whereabouts of the child is unclear or unknown, the file can be delivered to the Public Prosecutor of the place whore the child in presumed to be or, failing any evidence, to the Rome Juvenile Court: should the research verify the whereabouts of the child as being in another place, the file will be duly transferred to the relevant Court. It is to be noted that in Italy, pursuant to article 29 of the Hague Convention, it is possible to apply directly to the qualified Juvenile Court thereby avoiding the passage involving the Central Authority. It in advisable to take this route in the most urgent cages, however only if the applicant has a counsel replacing the role of the Central Authority; said role mainly being that of locating the qualified Juvenile Court, ensuring the file is complete and contains all the necessary information, keeping in touch with the Juvenile Court and with the Public Prosecutor, especially when the whereabouts of the child is unknown. Pursuant to article 22 of the Convention, the application procedure through the Central Authority is gratis. On the contrary, should an applicant file its application directly with the Juvenile Court, payment for filing fees and duty stamps is required. In other words, Italy has accepted to bear the costs of these procedures, as requested by the Convention, however only for those applicants who recognize the role of the Central Authority. The Public Prosecutor must mandatorily intervene in the proceedings upon request of the Central Authority, even in those cases in which the proceedings is initiated directly by the applicant and not the Public Prosecutor itself. An order issued without the prior acquisition of the Public Prosecutor's opinion would be null and void. a. The Juvenile Court The Public Prosecutor (or the applicant directly) applies to the Juvenile Court for an interlocutory order to return the children to the jurisdiction of habitual residence. Thus the Juvenile Court (which is composed of three Judges) schedules a hearing and informs the Central Authority of the hearing date. The Central Authority shall inform the applicant or the applicant's lawyer, if any. It is not mandatory that the applicant attend the hearing, however it is advisable to do so and also to request to be interrogated whereby providing any requested clarification to the Juvenile Court. The Juvenile Court is mandatorily required to interrogate the persons with whom the minor lives, and upon its discretion, the minor itself. Minors aged less than 12-14 years of age are not usually interrogated unless strictly necessary. Such implementation rule is to be appreciated where it requires that those people with whom the minor lives must be interrogated, an it ensures that the Court is given a clear and complete picture of the situation. On the other hand, the same rule is to be criticized where it provides that only in the Court's discretion can the child be interrogated, also in the light Of the Italian trend according to which children are rarely interrogated especially if less than 12-14 years of age, and unless strictly necessary. Such a provision is in my opinion in contrast with the new international idea that the child has the right to express an opinion: one cannot imagine a situation more appropriate than a child abduction case to give the child the possibility of expressing his opinion and testify on the background issues which may have helped generate the Situation. d. The decision Theoretically, a decision should be issued by the Juvenile Court no later than 30 days from the date in which the application was filed with the Central Authority. In practicality, this deadline in most unlikely to be met as it depends on the backlog of the qualified Juvenile Court. In one case in which the Turin Juvenile Court was qualified, it took so long to have a hearing scheduled that in the meantime we managed to convince the father to voluntarily return the children: basically, the children had in fact already been returned and the Court was still to fix a hearing to issue the requested order. At that point we canceled said procedure and applied on 15 January 1996, through the Luxembourg Convention, to have the foreign custody order recognized under Italian law for the purpose of preventing consequences of future abduction by the Italian father: we still await said hearing to be scheduled with this respect. I would like to clarity, however, that the above cited case is particular in that it probably came about due to a temporary backlog in the Turin Juvenile Court. I can state, however, that not all Courts have such a heavy backlog, which could prevent legislation deadlines from being met, and more importantly, the necessary results from being obtained in due course. I would say that on average the timing necessary from the filing of the request with the Central Authority, and the issue of the order, in 40 to 60 days instead of the required 30. e. The appeal The decision issued by the Juvenile Court is immediately enforceable. The decision is also appealable at the Court of Cassation however, the appeal does not suspend enforceability. Note that the Court of Cassation does not run examinations on the merits of the case but merely verifies that the required procedure has been followed. Should an error have been committed during the proceedings before the Juvenile Court, the final order would be canceled and the Juvenile Court would then have to issue a new order bearing in mind the directives given by the Court of Cassation. The proceedings before the Court of Cassation can prove to be quite lengthy and last about two years. f. The enforcement of the decision Should the abductor not abide by the decision issued by the Juvenile Court, the enforcement is the responsibility of the Chief Public Prosecutor in the place of habitual residence of the child. The Chief Public Prosecutor, if required, can request the intervention of the Police and, namely, the Special Division for Minors which I cited previously. Basically, when the abductor refuses to deliver the child, or to allow visitation rights, the Police shall physically remove the child: this is often effected with the assistance of the social services in an effort to reduce as much as possible the trauma inevitably caused to the child. It is to be noted that before the Hague Convention was ratified in Italy, the enforcement of a decision to hand over a Child was within the competence of the Tutelage Judge. This meant that, while the decision was issued, depending on the case by the Ordinary Court or by the Juvenile Court, the enforcement was attributed to a totally different Judge who had no knowledge of the case. Such discrepancy did not help matters and it is quite important that with the implementation of the Hague Convention, all the competencies and powers have been assigned within the Juvenile Courts. 4. SUGGESTED DEVICES TO SPEED UP THE ACTION Based on my experience, there are a number of practical issues to be taken into account when working within the above procedure, for the purposes of speeding up the procedure as much as possible and also to obtain positive results. The applicant, or better the applicant's lawyer, if any, should maintain constant contact with the Central Authority, the Public Prosecutor and the Juvenile Court during the various steps of the procedure: the backlog of the Courts can prove so heavy that one either constantly chases those dealing with the file or risks discovering oneself in a never ending situation. It in important to circumvent any request for clarification and to always promptly satisfy any request for additional documentation in an attempt to avoid the file being put "on hold" under a stack of those similarly waiting. To this end, preparing the file in an appropriate manner is crucial: the application must be provided with as much support documentation as possible, and any foreign documents must be properly translated. In fact, considering that the file is to be handled firstly by the Central Authority, secondly by the public Prosecutor and finally by the Juvenile Court, which is composed of three Judges, there is a substantial risk that someone in the chain will not speak the foreign language. Constant communication is of the utmost importance when the police or the Social Services are involved. In the most urgent and dramatic cases, when the place to where the child has been abducted in unknown, or the child is under risk, I dare say that it is essential to maintain daily contact with the people working in an effort to locate the child. The available personnel constantly prove insufficient with respect to the request of assistance: either one ensures ones own file is being constantly processed or it never will be. 5. CONCLUSIONS As a conclusion to the above examination of this first usage year of the Hague Convention in Italy, I must say that the results are most definitively positive. It is true that the implementation procedures are still to be improved however, the Central Authority in staffed with extremely efficient people and the Convention has proved to he a priceless instrument to quickly resolve situations which in the past remained unresolved due to the inevitable conflicts of law and lack of specific provisions on who was empowered to perform what. You may be interested in a final note. During the past year there has been an attempt to use the Hague Convention for an abduction which occurred prior to the entry into force of the Convention under Italian law. The abductor was a famous personality in the pornographic field, better known for having been elected into the Italian Parliament. The father, an American citizen, strongly requested the retrospective application of the Convention, this also being supported by the Italian and U.S. Central Authorities. The request was rejected by the Rome Juvenile Court on the basis that there was no agreement between Italy and the United States to having a retrospective application of the Convention pursuant to Article 36, and that the Central authorities, being mere administrative bodies, could not validly express the intention of the contracting states. In another case I am handling which involves Italy and United Kingdom, the English father, whom I represent, is trying have the Convention applied retrospectively. Should this be approved, it would allow the matter to be extricated from a normal proceedings which was initiated in 1994 and has not yet produced results. The decision, however, as to the retrospective application of the Convention has not yet been made. ================================================================= WMH Note: Set forth below is the (partial) text of a letter from Roberta Ceschini to this office concerning a Hague Application. Certain parts of the letter that relate to the specific case have been removed. Sinsi Ceschini Mancini & Partners Via Francesco Carrara, 24 00196 Rome, Italy TEL: (39) (6) 322-1485 FAX: (39) (6) 361-3266 Dear Mr. Hilton, This answers your fax of yesterday. I am more than pleased to provide you with a preliminary opinion, gratis, based on the facts provided in your fax. 1. Mr. XXX should file an application with the Italian Central Authority, which is located in Rome, requesting the return of the abducted child, pursuant to the Hague Convention, providing all the information in his possession regarding his whereabouts of the child. The Rome Central Authority will transfer the file to the XXXXX Public Prosecutor at the local Juvenile Court (as I understand the child is presumed to be in XXXXX). The Public Prosecutor, through the police, shall locate the child and the mother. In the meantime, the Juvenile Court shall schedule a hearing at which the mother shall be requested to appear. At such hearing the Juvenile Court shall eventually order the return of the child to the United States. Mr. XXXXXX will not be requested to mandatorily appear at such hearing, however I usually advise clients to do so. This prooeedings, according to the Hague Convention, should last approximately 30 days from the date of filing of the application at the Central Authority. However, it is my experience that the procedure lasts about 40-60 days, depending on the backlog of the local Court. The proceedings shall be deemed to be commenced upon filing of the application with the Rome Central Authority: I therefore believe that we are perfectly within the one year term pursuant to Article 3 of the Hague Convention. I believe the "wrongful act" pursuant to the Convention is the removal of the child on 13 December 1995. In fact, the wrongful retention of the child on 20 September 1995 is superseded by the subsequent return of the mother and child to California. Equally, the trip of 5 May 1995 cannot be considered a wrongful removal, as it was made with the consent of the father. The mother's statement to have been living in Italy since 5 May can be contested by showing, through the passport or other means, that she has subsequently been in California. 2/3. Unfortunately, Italian law does not provide Legal Aid for child abduction cases. Mr. XXXXXX must therefore hire a private attorney who will maintain contact with the Central Authority to ensure the application in promptly processed and will attend the heraing at the Juvenile Court. The presence of an attorney is not mandatorily required, however it is advisable to have one to ensure the applicant's rights are duly represented and claimed. To answer your question, the matter shall remain within the competence of the Juvenile Court. The attorney shall simply represent the applicant. 4. I specialize in child abduction cases and am experienced in handling cases in and outside of Rome. Italy in a small country and I often travel to attend hearings in other cities. Yours sincerely /s/ Roberta Ceschini Roberta Ceschini