19 August 2021

Children taken away as if they were things

There are no laws authorising the violent removal of children. Social services, the only ones entitled to intervene in such cases, must refuse to carry out court orders. Doctors and psychologists cannot support these traumatic actions. Judges must respect national rules and international conventions. The government and parliament must stop this unworthy merry-go-round against children and their mothers.
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Laws often do not existor if there are interpreted in an unlawful manner (see the law 54/06 with its Articles 155 and 155a, which must be read in a coordinated manner) or simply are not applied

Unenforced laws include the Istanbul Convention, law 77/2013, which with its two articles 26 and 31 requires that in cases of domestic violence the mother and child are both placed in protective custody and that custody does not involve any sharing and cohabitation with the violent parent (father). 

The Istanbul Convention is still largely disregarded and ignored.

From theSenate hearing by Laura Sabbadini and Maria Monteleoneauthors of the report to the Commission on Feminicide on: "Analysis of investigations conducted at the Public Prosecutor's Office, Ordinary Courts, Supervisory Courts, the Superior Council of the Magistracy, the Superior School of the Magistracy, the National Forensic Council and the Orders of Psychologists"we learn that:

"The results of the surveys carried out indicate, therefore, a substantial difficulty, also of a cultural nature, in understanding the phenomenon. This implies - on the part of the whole system - a underestimation of gender-based and domestic violence, which is not 'read' correctly. For these reasons, it can be said that there is still a lot to be done for our 'country system' to be considered truly democratic in that it guarantees women to be free from all forms of violence.". And again: "95% of courts do not quantify cases of domestic violence in cases of judicial separationThe number of cases in which the judge ordered a court-appointed expert witness in the matter is not quantified either. The 95% of the courts is not able to indicate in how many cases the judge has ordered a court-appointed expert opinion.".

These are serious responsibilities of judges, It is not enough to speak only of a lack of training for magistrates and psychologists. It is about disapplication of a law and as everyone knows 'the law does not admit ignorance' and therefore judges and legal professionals should not be talked about only lack of training on the issue of violence against women either. In a self-respecting country magistrates and all other professionals engaged in civil child custody cases that disregard the articles of the Istanbul Convention should be: a. reported to the judicial authorities b. referred to their respective professional and supervisory bodies c. suspended  sine die from their activities.

Delving into the issue of the disapplication of the Istanbul Convention, we come across another related issue, with further civil and criminal liabilities on the part of magistrates and professionals of the various orders.

The cases of the last few weeks speak of forcible removal of children and the use of non-existent articles of law regarding the removal of children from their homes. There are no ad hoc laws providing for the enforcement of such measures. The judge may order the removal of a child, but there are no rules governing its implementation. This is because the matter of judicial execution essentially concerns immovable property. On the other hand, there are practices and customs deduced from the decrees themselves and from various protocols (i.e. not from laws); these indicate that enforcement of removal is the responsibility of social services. In fact, we read in a decree of the juvenile court: "the execution of TM measures is institutionally delegated to the competent S.S."in another decree we read: ".provides ... that the child shall be placed in a suitable family home, by the competent Social Service, with the assistance of a competent neuropsychiatrist and with the help of specialised personnel working in the Juvenile Office. It is forbidden for anyone to take the child.".

Placement and not withdrawal activities, never mentioned and indeed forbidden, are the prerogative of social services. It is not known how, except implicitly referred to the presence of the police, that if they forcibly take a child they assume the responsibility for an act of violence and kidnapping of a free citizenalso minor, not supported by any order or decree.

The decrees only speak of accompanying the child elsewhere than at home. (also affecting his right to respect for his home and family life, Art. 8 ECHR) at the expense of the services; and at most the removal of mobile and immovable obstacles by the FFOO without ever giving precise indications as to whether the child can be forcibly taken against his or her will. In essence forcible withdrawal is not the subject of decrees or orders, it is an action we could say under the radar, borderline in legal terms, tolerated and even supported and facilitated by the state. In fact, the FFOO specify in their reports, after the execution, that they intervene in support of the SS and not independently.

What does this mean? do not have autonomous coercive power in matters concerning children.

Ultimately, when the decrees mention the use of the FFOO by the services, this indicates a shift from a 'normal intervention' plan to an 'exceptional intervention' plan, which also means that the operators 'do not have certain rules of engagement'. It is never said what the FFOO should do, what their limits are, other than the fact that they wear civilian clothes and not uniforms.

These interventions do not have any rules because they are not an emergency. (governed by art. 403 cc.), because the child is well cared for by the mother and wants to stay with the mother and the mother has a respectable personal and work record and is therefore not a source of risk for the child. Then the dangerous situation must be surreptitiously created. It is clear that never has a civil law measure led to an intervention by the anti-crime police involving the breaking of doors and violence against the people present, let alone lifting a child who is struggling and screaming and is clearly in a state of trauma and stress.

How can this be possible without the mothers being dangerous multi-condemned criminals?  

Only in some cases are mothers reported for a crime, child abduction or circumvention of court orders, offences for which there are not yet criminal proceedings and a judgement in the third instance allowing to speak of execution. Furthermore the deployment of forces, which we have seen in these cases in action, is only plausible if dangerous criminals and fugitives have to be apprehended.

An example of how to construct a fictitious danger situation is evident in the case of the mother in Rome and the 7-year-old boy with epilepsy 'picked up' at the end of July. The mother has raised this child and provided for the child during his illness, all documented. She is a appropriate motheralso defined as such by the courts, but the father claims his son with a series of petitions filed over time with various courts. Finally, after several appeals, a court ruled in his favour and ordered the removal of the child from his mother to be reunited with his father, a father with whom the child had never lived and from whom his mother had fled years and years earlier because of her violent conduct. The court then decreed that the services should accompany the child to the family home in order to carry out this process of distancing the mother from the father (a pseudo-sanitary process, which calls into question the PAS treatment, and deserves a separate discussion). This attempt fails and services are 'commanded' to cooperate with FFOO. In addition, the court orders the FFOO to 'track down the child' on the national territory, because the mother did not respond to the services that went to her home, involving the anti-crime police, thus assuming that there is an (undefined) risk for the child. In addition, the guardian lodges a complaint with the public prosecutor's office for abduction of the child by the mother (but what kind of abduction are we talking about and who has the child been abducted from, since he has always lived with his mother?)

Thus a public prosecutor's office within whose territory the family of the child is located by means of modern GPS, and that public prosecutor's office issues a measure aimed at verifying the presence of the child in the identified flat. To this end, the Public Prosecutor's Office orders a search of the property found, with a consequent seizure of materials and objects relevant to evidence (Article 252 of the Criminal Code). The moral of all this is that a child, as there is no law indicating how it should be taken, is seized as evidence, cosificato in a search order, i.e. treated as an object of an alleged offence with evidential value, because it was not possible to seize a living, free citizen. So much so that in the measure that 'pretends not to refer to the withdrawal of a minor' but only to search and seize objects, it is written to use methods that do not 'cause damage to real estate'.

This is the boorish cunning of those who abuse their power and want to circumvent law and the Constitution.

Can this be done? First of all: is it legal, as the aforementioned decree says, for the court to impose its decrees on the social services? In our opinion NO.

Social services have their own professional autonomy, they depend administratively on another institution, the municipalities,  e may not comply, in the logic of child protection, at the court's disposal which, on the one hand, cannot serve as orders for them and, on the other, can be assessed as detrimental to the child's psychological and physical integrity. The same applies even more so for health services, they too called upon to normalise the 'crime scene' in an attempt to give a garment of legality and humanity to a traumatic action.

The only ones in a subordinate position are police and carabinieri. But they are not given a direct order, talk of service support, fig leaf a coercive measure against a minor that could only have a legal basis in relation to art. 403 of the Italian Civil Code referring to an emergency situation. An emergency that clearly does not exist for these minors who are well looked after and cared for by their legitimate mothers.

So what can be done?

The services assume their role with dignity and social workers, like health service workers, object to (nowadays they object to everything, even to parva materia) that it is not in their mission and their code of ethics to cause trauma to a minor who is not running a real risk to his psychophysical integrity. And they refer the decision to their hierarchical chain: the ASL director and the mayor of the municipality to which they belong. They are the ones who must take on this responsibility themselves, even deciding to break the law and the Constitution. It is not possible for the forcible removal of a child to turn into an unworthy manhunt, with the social and health services, the police, the guardian, the Carabinieri and, in some cases, the father's private investigator acting as dogs of prey.

Some of these people in their leaderships, all of whom are entitled to stop, refuses to proceed and points to this child hunt as unworthy of a democratic country. Social workers, doctors and psychologists should have a jolt of professional dignity and get off this bandwagon, pointing out that they cannot, on the basis of their professional obligations, participate in an intervention whose traumatic costs for the child exceed the expected benefits.

What about the judiciary? There have long been calls from many quarters for a sending inspectors from the Ministry of Justice to those courts that do not respect state laws and international conventions and that invent coercive practices outside the norms, rules and constitutional rights. It is time for someone to intervene, either in government and/or in parliament, and take responsibility for this here and now, putting an end to this unworthy psycho-socio-judicial merry-go-round.

Elvira Reale

Associations' Open Letter to Minister Marta Cartabia

On the initiative of the President of the Femicide Commission, Valeria Valente, and its members, with the support of the PD, M5S, Italia Viva, LeU, Forza Italia, and Alternativa c'è, important changes have been made to the government's amendments on the "Civil proceedings concerning persons, minors and families".

These amendments (specifically: sub-amendment 15.0.8/2, which intervenes on government amendment 15.0.8) give value in civil proceedings to the founding principles of the Istanbul Convention to protect women victims of violence, also in view of the fact that, today, when they leave behind the violent relationship and separate, they are exposed, in the Italian courts, as regards the custody of minor children, to the risk of secondary/institutional victimisation.

We, the signatories, actively support the initiative of the Feminicide Commission and its President, we give our full support to the initiative by reiterating the need for some inalienable principles to be included in the reform: 

  • the child's right to bigenitorial responsibility cannot be regarded as overriding his or her constitutionally protected superior interest in health, safety and (within the limits of age) freedom of self-determination; 
  • the necessity of the use of the investigative powers of the judge in the assessment of the presence of domestic violence with the consequent limitation/exclusion of technical advice on the best foster care; as well as the need to exclude any mediation practice in compliance with Article 48 of the Istanbul Convention; 
  • Strengthening the direct hearing of the child by the judge in all situations concerning the child, as required by law;
  • the exclusion from civil proceedings of unscientific and unvalidated constructs such as PAS and other psychological constructs, which are secondary to the issue of violence;
  • entrusting the child to the mother victim of violence (Art. 31 CdI) on a preliminary and provisional basis where there are indications of violence to be ascertained (praesumptio iuris tantum);
  • the exclusion of traumatic practices for children, such as forcible removals from their habitual living environment and from their relationship with their mother, without a real and imminent risk to their health and life being identified.

In this regard, it should be noted that only real urgency (abandonment with prolonged and documented neglect, not related to conditions of poverty and indigence) can result in the removal of the child from his or her living and family context, and Therefore, we ask that the judicial practices exclude alleged reasons of risk for the child related to the so-called 'high level of conflict between couples', an expression that incorrectly and confusingly identifies situations of domestic violence against women and children.

Finally, we would like to underline the dangerousness of some practices that should be opposed and/or reviewed:

  • the enforcement of the orders of the family and children's judge, delegated to the social services, which are de facto obliged to comply with the judge's order - and at the risk of being sued for failure to act in the office in the event of non-compliance - with the compromise of the conditions of freedom and professional autonomy in the exercise of their role and mandate;
  • the abnormal recourse, with reference to the latest events of the removal of minors from their mother's home, to procedural institutions such as searches in order to provide the police with broader powers not allowed in the execution of civil and juvenile court orders.

Our demands take on particular value today because they remind us that women, as the latest dramatic events in Afghanistan show, are the most harassed and at risk in the world, not only in authoritarian regimes, but also, with due differences, in Western countries including our own.

Women's Health Association aps,

Associazione Differenza Donna,

Women Together Association,

Association dream team - women in the network,

Association 'Io sono mia' Bitonto (BA),

Ass. Family Smile and Ali Equal Opportunities Department - Italian local authorities,

Association Battiti di Vetralla,

Association GMA Naples,

The Secret Garden Association,

Association Casa Delle Donne Lucha y Siesta

Alzaia onlus - anti-violence centre "Sostegno Donna" Taranto,

Arcidonna onlus Naples,

APS Giraffa onlus Bari,

Befree social cooperative against trafficking violence and discrimination,

International House of Women in Rome,

Anti-violence centre Liberamente - Altamura,

Pandora Molfetta anti-violence centre,

Anti-violence centre la luna Latiano (Br),

Filo di Arianna Anti-Violence Centre in San Severo and Save in Trani,

Cooperative E.V.A,

PD Naples Women's Forum,

Juristeingenere,

Impegno Donna - Foggia,

Giulia e Rossella" Observatory Anti-Violence Centre ONLUS Barletta,

Protocol Naples,

Rediscovering the anti-violence centre - Andria,

D.i.Re. Network

Sud est Donne aps - Conversano (Ba),

UDI Naples,

UDI Pescara.

.


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