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|Authors: ||Tonetti, Martina|
|Internal Tutor: ||CONETTI, GIORGIO|
|Title: ||Potestà dei genitori, responsabilità genitoriale e protezione dei minori nel diritto internazionale privato e processuale.|
|Abstract: ||The purpose of the thesis is to give an overview on the rules of private international law existing at national and at international level and concerning relationships between parents and children, regardless of other conditions. In fact the thesis deals with jurisdiction, applicable law, recognition and enforcement of judgements in the field of parental authority, parental responsibility and child protection.
Whereas the relevant legislation on parents – children relationships does not consider this topic as an unicuum, but takes into account differently the abovementioned categories, the thesis focuses on each of them separately.
As a consequence, the first topic to be addressed is the relationship between the different relevant legislations, with reference to their material scope.
The legislations taken into account are hereafter listed:
- Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000;
- Hague Convention of 5 October 1961 concerning the powers of authorities and the law applicable in respect of the protection of infants;
- Hague Convention of 19 October 1996 on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of the child, that is expected to repeal the 1961 Hague Convention;
- Articles 36, 37 and 42 of Italian Private International Law, n. 218/1995.
After explaining the relationship among the abovementioned legislations, the thesis deals with jurisdiction, focusing on the fundamental principle ruling jurisdiction - the best interest of the child - and on the general criterion for determining jurisdiction: the habitual residence of the child, which is increasingly used in international acts.
On the other hand, nationality is relevant under the 1961 Hague Convention and under Art. 36 of the Italian private international law, as a connecting factor for determining the applicable law. As far as connecting factors in the field of parents - children relationships, the research focuses on several topics, such as the problems arising from the discrimination based on nationality, and on multiple nationalities.
Finally, the research explores the recognition as well as the enforcement of judgments: procedures differ from each other on the basis of where decisions are held, whether in a Member State or not. Also the object of the decision could lead to a different proceeding: for example, a judgment concerning access rights is directly recognized and enforceable in another Member State provided it is accompanied by a certificate, which shall be issued by the judge of origin who stated the judgment. The certificate guarantees that some procedural safeguards have been respected during the procedure in the State where the decision has been adopted. Finally, some recent aspects about public order exception are described.
Parental responsibility is considered by Art. 2 of the Council Regulation (EC) No 2201/2003, and by Art. 1 of the 1996 Hague Convention, which both widely define the concept: in fact “parental responsibility” covers all rights and duties of a parent, guardian or legal representative, relating to the person or the property of the child. This encompasses not only rights of custody and rights of access, but also matters such as the guardianship and the placement of a child in a foster family or in institutional care and child protection.
It is worth underlining that: i) the list of matters qualified as “parental responsibility” pursuant to the Regulation in Art. 2 is not exhaustive, but merely illustrative; ii) it includes also measures for the protection of the child; iii) the concept of parental responsibility pursuant to the 1996 Hague Convention includes parental authority.
As a consequence, parental responsibility may be considered the only relevant category in the field of parents – children relations. This hypothesis may lead to a uniform private international law regulations on family relations.|
|Keywords: ||Regolamento CE 2201/2003, convenzione dell'Aja 1996, potestà genitoriale, responsabilità genitoriale, protezione minori.|
|Subject MIUR : ||IUS/13 DIRITTO INTERNAZIONALE|
|Issue Date: ||2013|
|Doctoral course: ||Storia e Dottrina delle Istituzioni|
|Academic cycle: ||25|
|Publisher: ||Università degli Studi dell'Insubria|
|Citation: ||Tonetti, M.Potestà dei genitori, responsabilità genitoriale e protezione dei minori nel diritto internazionale privato e processuale. (Doctoral Thesis, Università degli Studi dell'Insubria, 2013).|
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