The Abduction of a Minor

The abduction of a minor constitutes a criminal offence, provided for and punished in the Italian legal system by three separate criminal provisions, each governing a different set of circumstances; these are Articles 573, 574 and 574-bis of the Criminal Code, the last of which was introduced by the so-called Pacchetto Sicurezza (Security Package), under Law No. 94 of 15 July 2009.

Starting from the first provision, this covers the case of the consensual abduction of a minor, establishing a sentence of imprisonment of up to two years for anyone who abducts a minor who has reached the age of fourteen, with that minor's consent, from the parent exercising parental responsibility or from the guardian, or who detains the minor against the will of the parent or guardian.

A reduction in sentence is provided where the offence is committed in connection with the breakdown of a marriage, while the sentence is increased where the abduction is carried out for the purpose of satisfying sexual urges.

Article 574 — Abduction of Incapacitated Persons

Article 574 of the Criminal Code, concerning the abduction of incapacitated persons, covers the case of abducting a mentally ill person or a minor under the age of fourteen from the parent exercising parental responsibility, the guardian, the curator, or anyone having supervision or custody of that person, or of detaining them against the will of those same persons.

In this case, unlike the provision on the abduction of a minor who has reached the age of fourteen, no reference is made to the consent of the person abducted. This is because, by legislative presumption, a person under fourteen is considered to be in a state of immaturity entailing absolute physical and psychological inferiority, which renders any purported consent entirely irrelevant. The underlying assumption is that, in such circumstances, the minor is incapable of resisting the adult's actions, whether they show some degree of resistance or appear to be consenting.

For the abduction of an incapacitated person or a minor under fourteen, Article 574 provides for a sentence of imprisonment from one to three years. The same sentence applies to anyone who abducts a minor who has reached the age of fourteen without that minor's consent, for purposes other than the breakdown of a marriage or sexual gratification. This provision has a residual character relative to Article 573, in that it covers conduct that might otherwise fall outside the scope of that earlier provision.

Article 574-bis — Abduction or Retention of a Minor Abroad

Completing the criminal law framework on the abduction of minors is Article 574-bis of the Criminal Code, introduced, as noted, by the 2009 Security Package, which governs the case of the abduction or retention of a minor abroad.

The introduction of this new provision was an attempt to curb a growing phenomenon: the birth of children to parents of different nationalities who, upon the breakdown of their relationship, engage in abductive conduct aimed at retaining the children abroad in their country of origin.

Specifically, the new provision establishes that anyone who abducts a minor from the parent exercising parental authority or from the guardian, by taking or retaining the minor abroad against the will of that parent or guardian and thereby wholly or partially preventing the exercise of parental authority, is subject to a sentence of imprisonment from one to four years.

Where the abducted minor has reached the age of fourteen and has given consent, the sentence is reduced to imprisonment from six months to three years; in addition to imprisonment, the accessory penalty of suspension of parental authority is also provided for.

It is worth emphasising that this new provision applies only where the abductive conduct results in the minor's removal from the country. Otherwise, the conduct will continue to fall under the offences set out in Articles 573 and 574 of the Criminal Code.

Child Taken Abroad Without Consent — Available Remedies

As regards the means by which it is possible to act against the criminal conduct of abduction of a minor, a distinction must be drawn depending on the specific circumstances.

Article 573, concerning the abduction of a consenting minor who has reached the age of fourteen, expressly provides that this offence is prosecutable only upon complaint (querela) by the injured party. It follows that, since this is an offence committed to the detriment of the parent exercising parental responsibility from whom the minor is taken, it is that parent who must take action by filing a formal complaint within the standard three-month period from the commission of the act; failing this, criminal proceedings for that type of offence cannot be initiated.

The same applies to the offence under Article 574, concerning the abduction of an incapacitated person or a minor under fourteen, where the filing of a complaint is equally indispensable.

In the complaint, the injured party — that is, the person exercising parental authority — must set out all relevant circumstances for the reconstruction of events, and, where they have suspicions, identify the person they believe responsible for the abductive conduct, expressly stating their wish that an investigation be conducted, failing which the complaint will be void.

In such cases, a detailed account of events by the party with whom the minor was staying is of fundamental importance, not only for procedural reasons — given that the complaint is a condition for the exercise of criminal proceedings — but also for investigative purposes. Only in this way is it possible, alongside any finding of criminal liability, to achieve the primary objective: locating the abducted minor.

By contrast, the offence under Article 574-bis, relating to the abduction of a minor abroad, does not require any action by the injured party to be prosecuted. A simple report or notification of the offence bringing the matter to the attention of the authorities is sufficient for them to initiate proceedings.

How to Obtain the Return of a Minor

The repatriation procedure is grounded in the Hague Convention of 25 October 1980 and in European Union Regulation No. 2201 of 2003.

For the procedure to be initiated, it is necessary that the right of custody or access, established by a decision of the State or by law, has been violated; that the right of custody genuinely exists and that no consent to removal abroad was given; that the minor has not yet reached the age of sixteen and has not objected to return; that the period of removal or retention abroad does not exceed twelve months; that the return does not compromise Human Rights; and that the minor would not suffer material or physical harm as a result of repatriation.

The repatriation procedure takes one of two forms depending on whether the country to which the minor has been taken is or is not a party to the Hague Convention or to the EU Regulation.

In the first case — where the country in which the minor is being retained has acceded to the Convention or Regulation, as Italy has — the entitled party has the right to submit an application for return to the Department of Juvenile Justice at the Ministry of Justice, or to the Directorate General for Italians Abroad and Migration Policies at the Ministry of Foreign Affairs.

The application may be submitted not only by the parent from whom the child has been taken, but also by any other natural person, institution, or body exercising a right of custody over the minor who can demonstrate that the minor has been removed or retained abroad in breach of that right.

Where, on the other hand, the minor is in a country that has not acceded to the Convention or Regulation, the entitled party must, in order to obtain assistance, information and contact with consular authorities, necessarily approach the Directorate General for Italians Abroad at the Ministry of Foreign Affairs, or, where the entitled party does not reside in Italy, must have recourse to the diplomatic and consular representations.

The authority competent to order the return is that of the place to which the minor has been taken, which, once the valid grounds supporting the application have been established, orders the minor's return within six weeks from the date on which the application is submitted.

Lawyer for Child Abduction — Rome

It is evident that a distinction must be drawn between two different categories of child abduction: abduction by the other parent, which occurs within the context of complex family dynamics, and abduction in the strict sense — a true kidnapping — carried out for a variety of possible purposes.

These are certainly different criminal offences that may also overlap, and from a practical standpoint both are, regrettably, frequently encountered in courtrooms.

What must be distinguished is the purpose pursued. In the case of a kidnapping, the aims may be the most varied — from financial objectives pursued through ransom demands, to the appalling trade in organs carried out in various parts of the world, or the trafficking of children, particularly very young ones. Where it is the parent who is the perpetrator of the unlawful conduct, the aim is manifestly different: to keep the child with them, in defiance of any judicial orders preventing it.

This occurs with increasing frequency, given the ever-growing conflict between couples today. Separations are far more common, and work demands often take people far from where the family home was established. Children become the means through which a war is waged, a way of inflicting harm, and so one finds oneself wanting to keep them close, indifferent to the other parent whose existence one would wish to erase entirely.

A good lawyer can break this chain of conflict and manage it as a neutral and impartial third party.