Italy: Court of Appeal of Bari, decree of 13.10.2021 on residence and two-parenthood



The case of a separated father whom the Court of Appeal of Bari - juvenile section authorised to stay in the national territory by accepting the complaint submitted in compliance with the right to bigenitoriality.


The appellant, while married to the mother of the minor child, had been authorised twice by the Juvenile Court of Bari; on the third request for authorisation, having learned that the couple had separated, it decided to authorise only the mother of the minor child, rejecting the request for the father precisely because he had separated. In the contested decision, in fact, the Court first of all pointed out that art. 31 of the Legislative Decree no. 286/1998, as interpreted by the Supreme Court of Cassation SS.U. in the sentence no. 21799/2010, "did not take into consideration an exceptional or emergency situation, but recognised, in favour of the minor, the right to maintain continuous relations with both parents and, in general, with the family members with whom the minor has built up a relationship" with whom the child has built up a significant relationship, sharing the well-known principle, subsequently expressed by the United Sections, according to which the judge must take into consideration in relation to the concrete case not only contingent and exceptional situations related to the health of the child but, more generally, "any actual, concrete, perceptible and objectively serious damage that, in view of the age or health conditions related to the overall psycho-physical balance, derives or will certainly derive from the child's any actual, concrete, perceptible and objectively serious damage that, in consideration of the age or health conditions related to the overall psycho-physical balance, derives or will certainly derive to the minor from the removal of the family or from the definitive uprooting of the child. family member or from the definitive uprooting of the child from the environment in which he or she grew up'".


After that, disregarding the aforementioned premises, the Board decided to reject the father's application, citing some circumstances that had never emerged in the previous appeals and others diametrically opposed to those taken into consideration in the previous authorisation decision of 2018, stating in today's rejection decision that "the applicant, who occasionally works as an as a farm labourer, is not integrated into the social fabric and that, despite his stay on Italian territory for five years, he has great difficulty in expressing himself in Italian", despite the fact that he is perfectly integrated, speaks Italian sufficiently, has no police detriment and leads an exemplary life, as confirmed by the Police Headquarters of Bari.


And yet, the requirements taken into consideration by the United Sections, well expressed in the first authorisation measure, have not disappeared, as well as the relationship with the minor, to which the same College refers: "The minor, although showing a positive attitude towards the father figure (...)", on the contrary, with time the child's affective relationship with her father has deteriorated.


In fact, over time the child's affective relationship with her father has certainly been consolidated, hence the topicality and seriousness of the reasons that required its extension also for the father.

What is surprising is how the Tribunal focuses its attention on the alleged and not ascertained "precariousness of the working relationship, the lack of integration of the applicant and the language difficulty", which appear to be very marginal and irrelevant circumstances for the healthy and proper psycho-physical development of the minor, by failing to take into consideration the child's interest in maintaining a stable relationship with her parent, and also failing to give reasons for the relationship between the child and that parent, who, despite the de facto separation, performs his parental duties to the benefit of the child and her psychological and physical development.


Moreover, by considering the mother's authorisation alone to be an optimal and sufficient solution for the child, the court in fact abdicated the task of verifying the child's interest in maintaining a stable relationship with both parents.


However legitimate and necessary it may be, it cannot justify an absolute derogation from the rules in force concerning the permanence on Italian territory or constitute the only condition for the granting of a measure pursuant to Article 31 of the Immigration Consolidation Act". On the contrary, respect for the principle of bigenitorial responsibility, which translates into the right of each parent to be present in a significant way in the child's life, should have guided the court to grant the authorisation requested also in light of the social services reports.


The Court of Appeal, unlike the Juvenile Court, in a fine decision, which retraced in detail the preliminary findings and the father's assertions and claims, authorised the child's application, noting in particular that the provision in question should be understood as recognising, in favour of the child, the right to maintain ongoing relations with both parents.


Prof. Avv. Paolo Iafrate


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