Commentary on the Judgment of the Court of Cassation n. 5216/2024: Custody to Social Services and Child Protection

The judgment of the Court of Cassation n. 5216 of February 27, 2024, offers important insights for reflecting on the delicate issue of child custody in situations of family conflict. In this specific case, the Court declared the nullity of the judgment of the Court of Appeal of Bologna due to a lack of representation for the minors, emphasizing the need to ensure their adequate protection.

The context of the judgment

The case involves A.A. and B.B., parents of two minors, C.C. and D.D. After a long series of disputes, the Court of Appeal had ordered the custody of the minors to social services, considering it impossible to maintain shared custody due to the high level of conflict between the parents. However, the Court of Cassation highlighted a crucial aspect: custody to social services must be discussed in a debate that also involves the minors, represented by a special curator.

Relevance of the representation of minors

The nullity of the contested decision was motivated by the lack of dialogue that prevented a proper representation of the interests of the minors.

The Court emphasized that custody to social services represents an interference in family life and, therefore, must be justified by the necessity to protect the interests of the minors. In this case, the absence of a special curator compromised the guarantee of an adequate debate. The judgment thus reaffirms the importance of respecting guarantee procedures in situations of family conflict, especially when minors are involved.

Legal principles and future implications

The decision of the Court of Cassation is connected to established principles of Italian jurisprudence and European regulations, which place the protection of minors as a top priority. In particular, law 184/1983, recently amended, regulates the custody of minors and underscores the importance of adequate legal representation. Some key points to consider are:

• Need for a special curator in cases of conflict of interests.
• Obligation to ensure a complex and impartial debate.
• Principle of proportionality between the measures adopted and the objectives pursued.

The Court of Cassation has therefore referred the case back to the Court of Appeal of Bologna in a different composition, emphasizing the importance of respecting legal procedures to ensure the rights of minors.

Conclusions

The judgment n. 5216 of 2024 represents a significant step towards greater protection of the rights of minors in complex family contexts. It reaffirms the importance of ensuring correct procedures and the necessity of adequate legal representation, fundamental elements for keeping the interests of the youngest at the center of judicial decisions. In an era where family dynamics are increasingly varied, it is crucial that the legal system continues to evolve to protect the most vulnerable individuals.