Parental authority, the best interest of the child applies

The Constitutional Court stopped the automatism that requires the judge to suspend theparental responsibility for a parent convicted of family abuse committed to the detriment or in the presence of children. A rigidity of the rule that does not allow the judge to concretely assess the minor's interest in seeing the relationship between parents and children severed, even temporarily, or maintained, despite the imposition of the main penalty. And this also in all those cases in which the recomposition of the family framework is ascertained and the interest of the child may be better protected without suspension of parental responsibility that would actually harm him/her. This is the decision with which the Constitutional Court (judgement number 55) has branded as illegitimatearticle 34, second paragraph, of the Penal Code for the part in which it takes away from the judge any margin of manoeuvre on the accessory penalty, in case of violence committed directly on the child or assisted, with abuse of parental responsibility (article 572, second paragraph, of the Penal Code).

The judge of laws considered well-founded the questions of constitutional legitimacy raised by the Court of Siena, concerning the rule that provides, in the event of conviction, the suspension of parental authority for a period of time equal to twice the sentence imposed.

The Referring Court, which reported that it had come to recognise the criminal liability of two parents for the crime of ill-treatment in the family towards their minor cohabiting children, complained, however, that the automatic application of the accessory penalty, imposed by Article 34, second paragraph, of the Criminal Code, which would not allow the minor's interest, to be assessed in concrete terms, in the preservation of the family nucleus to be taken into consideration. A default application that for the Constitutional Council is in conflict with Articles 2, 3 and 30 of the Constitution.

Constitutional jurisprudence, in fact, has long noted that in the regulatory system, in the light of constitutional principles and the same evolution of ordinary legislation, the interests of the child are central. The rule censured, on the other hand, places an unreasonable absolute presumption that, in the face of a conviction of the parent for the crime of ill-treatment in the family, the interest of the child is always and only protected by suspending the parent from exercising parental responsibility.

On the contrary, the constitutional rules require the criminal court to assess whether the suspension of parental responsibility is, in concrete terms and in the light of the post-offence development of the relationship between child and parent, the best solution for the child, as it responds to the protection of his or her overriding interests. The judgment follows on the heels of the precedent (judgment 102/2020) in which the Court rejected the similar automatism against the parent convicted of trafficking and keeping a child abroad.