Grandparents to be protected

  • Italiano
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The role of the grandparent in family relationships is a significant one. Grandparents are the centre of traditions and teachings, the transmitters of our core values that have guided and accompanied the growth of children, and who can be the stronghold to a balanced emotional development of children- their children. In the interest of the child, it is therefore deemed important to maintain bonds with parents, especially in the phase of the pathology in the marital relationship. The dynamics of the family, in fact, are based on a complex interwoven web of personal relationships, with delicate equilibriums that enter a crisis whenever there is a conflict. The unjustified ban of parents on their children to see grandparents, is in conflict with the most basic educational needs.

The legislature has felt the need to protect children, even in love relationships with direct forefathers, first with the law May 4, 1983, no. 184, in matters of adoption, which preserves the right to maintain family relationships, while ensuring the child the possibility to grow within the family. July 31, 2005, law No. 159 established National Grandparents Day, thus reiterating the importance of these figures within the family and in society, while shared law on adoption No. 54 of 2006, established the principle that: “even in the event of a separation of the parents, the child shall have the right to maintain a balanced and sustained relationship with each of them to receive care, upbringing and education from both and to maintain significant relationships with his direct forefathers and with the relatives of each parent. ”

At supranational level, the European Court of human rights, with the two judgments of13.6.2000 29.9.2005 and (, said that article 8 of the ECHR, “includes at least the relationship between close relatives, who can play a considerable role” and therefore referring to the relationship between grandparents and grandchildren. “Respect for family life, thus to be intended, implies an obligation of the State to act in such a way that it encourages the normal development of these relations.” To obtain adequate protection, grandparents should be entitled to visit their grandchildren. In the past, the civil code and special laws, did not expressly provide in favour of the grandparents attending to their grandchildren, even less the right to contribute to their upbringing and education. This gap has been filled in part by doctrine and jurisprudence, driven by the need to settle the disputes, sometimes overheated, as recorded in practice.

The Court of Cassation, with the ruling of October 16, 2009, n. 220801 had already stated that, in a judgment of separation between spouses, the law attributes to minors, in their exclusive interest, the right to withhold normal relations with close relatives, while the latter, may only have interest in that separation conditions are fixed and specified so as to allow them to have normal significant relationships with the offspring of spouses who separate. While, with the decision No. 5097 5 March 2014, the Supreme Court has ruled that, in the case of a minor child of a parent who has passed away, the behaviour of the surviving spouse that may hinder any relationship with the parent’s direct relatives, may be considered as injurious conduct pursuant to arts. 330 et seq. cod. Civ.(revocation of parental responsibility).

The legislature has recently intervened in December 10, 2012, law No. 219, placing under art. 315 bis cod. Civ. (rights and duties of the child), that: “the child witholds the right to grow and maintain meaningful relationships with relatives. […].” While, with the d.lgs. December 28, 2013, no. 154, which added art. 317 bis cod.civ., stated that: “The direct forefathers are entitled to maintain significant relationships with underaged grandchildren. The forefather to whom this right has been prevented may appeal to the Court of the habitual residence of the child, in order that the appropriate measures in the exclusive interest of the minor be adopted. ” Hence, it has been recognised the right of the child to be able to shake hands with anyone, with grey hair and slow gait, who lives everyday of his life hoping just to see his smile … and …

Translation provided by Mary Ann D’Costa

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