Ukrainian children fleeing war: international adoption or nursing homes?

The gruesome images describing the sadness and wildlife of the war have certainly a significant sensitivity in public opinion on the issue of refugee children. The question is, in particular, whether it is possible to host such involuntary victims of the atrocities that the media spotlight presents to us every day, and again, whether it is possible to offer oneself custody. What do Italian laws say about it?

In fact, it must first be pointed out that there are no norms in the Italian legal system ad hoc for events not unlike those described above. That said, it is necessary to focus on interventions of international protection provided for children, which are: International adoption, international care, temporary reception.

International adoption

The institution of international adoption is used in the adoption procedure for a foreign minor residing in a country other than that of the adoptees. Its discipline is located in Section III, Act No. 184/83 (amended by Act 28/03/2001, No. 149 “The minor’s right to a family”): Chapter I – former domicile of the legislation on the adoption of foreign minors – has undergone important amendments to Act No. 476/1998 ( ratification and implementation of the Convention on the Protection of Minors and International Cooperation in International Adoption Matters, adopted in The Hague on 29/05/1993) with the replacement of the original species. 29-39 with Articles 29-39 Quarters; Chapter II of the same title, which deals with the deportation of minors for the purpose of adoption (Articles 40-43), has a slightly lower incidence, as only two paragraphs have been added, the second and the fourth, respectively, to Articles 40 and 41.

The guiding criterion for the international adoption system – set out in Article 1 of the Convention on the Protection of Minors and International Cooperation in the Field of International Adoption – is represented by the need to define appropriate protection measures to achieve the minor’s best interests and respect for his or her fundamental rights. , through the introduction of the common minimum concept of adoption identified in a family relationships final legal relationship between the child and the adoptive parents.

International adoption according to art. 6 of the aforesaid provision, spouses who are united in marriage for at least three years or a small number of years, as long as they have lived together for more than three years before the marriage and in any case a stable and cohesive cohabitation is required, which is not interrupted e.g. personal separation not even in reality. Furthermore, the age of the adopter shall be at least eighteen and shall not exceed forty-five years in relation to the age of the adopter, with the possibility of dispensation in case of serious injury to the minor; moreover, adoption is not excluded when the maximum age limit of the adopters is exceeded by only one of them to an extent not exceeding ten years. Therefore, according to the combined provisions of Articles 6, 30 and 32, ln 184/1983, also defined by the numerous interventions of the Constitutional Court (starting from sentence no. 183/1988 and therefore with sentences no. 44/1990, no. 148 / 1992, No. 1996, paragraphs n.349 / 1998 and n.283 / 1999), the age difference between adopters and adopters must not be understood in an absolute and rigid way, but taking into account, in the best interests of the minor, the special circumstances by the specific case. It follows that the findings and assessments of the Referee must not be made on an abstract and general level, but in accordance with the principle of constitutional relevance for the protection of the minor’s prevailing interests. the specific case. However, when interested parties are in possession of the above requirements, they may submit the declaration of readiness for international adoption to the juvenile court of the district in which they reside, and at the same time request by written request that suitability for adoption. At this point, the competent juvenile court will launch an inquiry through the territorial social assistance services to assess whether there is access to adoption. The social administration must carry out a series of activities in order to acquire all the elements that are useful for assessing the suitability of applicants; once these tasks have been completed, they shall send the Court a full report on the results of the investigations carried out. In the absence of obstacles, the Decree of Suitability will be issued; the declaration of suitability for international adoption is issued by decree of the Juvenile Court after the outcome of a chamber case after hearing the public prosecutor.

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The decree on suitability for adoption handed down by the Juvenile Court pursuant to Art. 30 of the l. 4/5/1983, n. 184, as amended by art. 3 of l. 31/12/1998, n. 476, can not be issued on the basis of references to the ethnicity of the minors who adopt, nor can it contain information regarding this ethnicity, on this point Cassation Court, Section Civil, with sentence n. 13332/2010 of 1 June 2010 stated that “If the possible selection of the minor to be adopted is expressed through an explicit choice vis-à-vis the public authorities, thereby requesting the raising of the child belonging to a particular ethnicity, the judge is prohibited from supporting an election that stands in stark and irreparable contrast to the prohibition of any discrimination and any unequal treatment between Italian and foreign minors in adoption cases, repeatedly repeated by national case law and supranationally. Therefore, the certificate of suitability can not be issued to applicants who declare their willingness to adopt, stating from which countries the minor must come or not, and, above all, subordinate his / her accessibility to adoption to possession or deficiency, in the minor adoption, with well-defined psychological, genetic and racial characteristics linked to the minor’s affiliation with one or more of the reported ethnic groups. “

The suitability order can be revoked if new circumstances arise where it is not possible to declare the couple suitable.

Both the Decree of Suitability and its repeal may be invoked within 10 days of the notification taking place by the Chancellery, while repetition by the Supreme Court is precluded. The eligibility decree must be notified to the Commission for International Adoption (a body set up under the chairmanship of the Council of Ministers) and headed by a judge with experience in the youth sector or by a head of state with similar specific experience; it has control functions with regard to the adoption provision issued by the foreign authority and allows the minor to enter Italy for adoption and, if already indicated by the aspiring adoptive parents, also to the authorized body (non-profit organizations / associations, ie, which does not provide for the realization of financial profits, led by people trained in international adoption with appropriate moral qualities, who take care of adoption practices), who will take care of the entire procedure of the chosen adoption.

Once the couple is in possession of the suitability decree, the international adoption procedure must begin within one year of its release by contacting one of the bodies approved (above) by the Commission for International Adoptions. After the child has entered Italy and a possible pre-adoption care period has expired, the procedure ends with the juvenile court ordering the adoption provision in the civil status registers.

The juvenile court of the parents’ place of residence at the time of their entry into Italy with the minor is competent for this registration.

However, due to the Russian invasion, all adoption procedures in Ukraine have stopped. It is therefore clear that international adoption does not currently constitute a viable protection intervention for children fleeing the war in Ukraine.

International foster family

Another intervention to help these children that could be used isfamily care international; it is a temporary measure aimed at protecting a minor with a view to a subsequent reintegration into the family of origin. However, this institute is not expressly regulated by Italian law. In recent years, however, we have witnessed the phenomenon of so-called “climate change”, which was originally activated after the Chernobyl tragedy; such stays consist of more or less long stays in our country of foreign minors with host families. Following the recurrence of these episodes, the need arose to legislate on this issue, but the reading of the various bills highlighted some points that require special attention to avoid risks and negative consequences, certainly not desired. Indeed, over time, these hypotheses have been transformed into alternative avenues to the usual procedures to be followed for obtaining the adoption of a child, by taking advantage of the legislative provisions allowing adoption contrary to the conditions laid down by law when it is established an emotional relationship with the minor, which, if interrupted, could lead to negative consequences for his psycho-physical development, for these reasons, various associations have asked Parliament to legislate, opening the way for international devotion.

Temporary reception

From what has been reported, it is understood that the institutions listed above for the bureaucratic delays in the case of international adoption and for the regulatory difficulties as well as for the negative consequences associated with the brevity of the notice in the case of international custody can not provide an answer immediate need to protect Ukrainian children also given the growing phenomenon of unaccompanied minors who have already arrived in Italy. For them, the possibility of a temporary reception project with a family can actually be evaluated effectively, as the NGO Ai.Bi. explains once they have been entrusted to the Italian authorities.

That is why CONADI (National Council of Childhood and Adolescent Rights) has issued guidelines for those who want and could host a minor in their home, specifying that any interested party: must send an e-mail stating the name, surname, residence, telephone number; the number of children who can be accommodated (one, two or family unit), the age of the child who can be the host, the presence of other minors or elderly people or animals in the house and the period of availability for reception. CONADI has clarified that it is a “TEMPORARY” RECEPTION, it is not a question of adoption, nor of international care, and that there is no possibility of the child being adopted in the future. Temporary hospitality associated with the emergency can be provided by a family or an individual. The minors will be handed over to the families selected by agreement with the Ukrainian embassy, ​​prefectures, courts and prosecutors’ offices: a form of temporary hospitality needed to cope with the emergency, awaiting clearer laws that can support small in situations like this.

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