Abandonment of children or incapacitated persons

Throughout 2024, criminal case law provided important clarifications regarding the nature of the crime of abandonment of minors or incapacitated persons referred to in art. 591 of the Criminal Code, strengthening an interpretation that is attentive to the minor's concrete exposure to dangerous situations.

A first relevant profile concerns the notion of abandonment, which does not necessarily require a material (physical) or definitive separation between the acting subject and the minor. The Court of Cassation reiterated that, for the purposes of supplementing the offence, a “relative dereliction” is sufficient, which may also consist of a temporary or partial interruption of the care or custody relationship, when the child is unable to cope independently with the care needs imposed by the concrete situation. The essence of the case therefore lies in the violation of the pre-existing legal obligation of care or custody, regardless of the duration or method of the removal. From this perspective, case law has valorised the legal duty of custody, which can derive not only from the law or a formal relationship, but also from a state of fact created by the agent himself, provided it is capable of establishing a legally relevant liability (Criminal Cassation, sec. V, judgment 15 May 2024, No. 31853). 

In applying those principles, the case law on the merits considered the offence to be integrated in a case where two children were left locked in a room within a dwelling that was also locked, while the responsible adults voluntarily left. In this context, the danger to the safety of minors was considered particularly serious, also in view of the presence of a pathology affecting one of them, and sufficient to establish the existence of both the objective and subjective elements of the crime (Nola Tribunal, judgment 20 May 2024, No. 1112).

A further interpretative development concerns the relationship between the crime of abandonment and other criminal offences. The Court of Cassation has affirmed the possibility of complicity between the crime of abandonment of minors or incapacitated persons and that of domestic abuse, if the conduct is distinct and autonomous: on the one hand, the habitual and harassing behaviour typical of art. 572 of the Criminal Code; on the other hand, the unjustified abandonment of the minor, such as to expose him to danger (Criminal Cassation, sec. VI, judgment 23 April 2024, No. 21948).

Finally, case law has also traced the mother's conduct in excluding her minor children from the family home, changing the lock and leaving the place of residence, in violation of the parental obligations deriving from joint custody, thus constituting a clear failure to fulfill the duty of protection and care (Naples Court of Appeal, sec. VI, judgment 2 January 2024, No. 16355).

State of abandonment

Throughout 2024, civil case law further clarified the prerequisites and criteria for determining the child's state of moral and material abandonment for the purposes of the declaration of adoptability, thereby strengthening a rigorous approach anchored in the child's best interests.

In keeping with the consolidated approach, the Court of Cassation reiterated that the condition of abandonment arises when the minor is permanently, and not merely temporarily, deprived of the moral and material assistance from parents or relatives required to provide it. This situation may also exist independently of the parents' subjective fault if a serious, non-transitory psychological or physical condition irreversibly compromises their ability to consciously and consistently assume parental responsibilities, thereby prejudicing the minor's psychophysical development. It has also been clarified that the parent's mere declaration of intent to care for the child is not sufficient to exclude a state of abandonment, where such intention does not translate into concrete and judicially verifiable acts, capable of averting the risk of subsequent abandonment (Civil Cassation, sec. I, judgment 11 April 2024, No. 9798).

A significant interpretative development of 2024 concerns the relationship between the state of abandonment and maintenance of emotional ties with the family of origin. In the light of the constitutionally oriented interpretation of art. 27.3, law No. 184 of 1983, the judge may permit, where in accordance with the interests of the child, the continuation of emotional relations with certain members of the biological family not only in the phase following the declaration of adoptability, but already in the phase of establishing the state of abandonment and those preparing for legitimising adoption. The judge must assess whether termination of socio-emotional relationships with the family of origin, resulting from the breakdown of the legal-parental bond, is in the child's best interests, avoiding automatic mechanisms and favouring a case-by-case assessment. The decision to allow the continuation of emotional relationships must, however, be accompanied by adequate information and preparation of the adopting family, in order to ensure a correct understanding and management of relational continuity in the best interests of the child (Civil Cassation, sec. I, judgments 16 April 2024, No. 10278; 24 April 2024, No. 11138).

The Court also stressed that the declaration of adoptability constitutes a residual measure, admissible only in the presence of serious facts of moral and material abandonment, demonstrated in a certain and timely manner, excluding generic or superficial assessments of parental incompetence. From this perspective, the judge is required to conduct in-depth monitoring of parental skills and available family resources, including those of relatives within the fourth degree, and to evaluate the possible use of alternative measures, such as reversible extrafamilial custody or mild adoption pursuant to art. 44, law No. 184 of 1983, suitable for avoiding the definitive severance of family ties (Civil Cassation, sec. I, judgment 29 August 2024, No. 23320).

Finally, it was specified that the determination of the state of abandonment is legitimate only if it proves highly unlikely that parental abilities will be recovered within a time frame compatible with the child's need to live in a stable family context. Even in such cases, the judge must carefully balance the minor's right to grow up in his or her family of origin (protected by art. 1, law No. 184/1983) with the need for protection from situations of serious prejudice, prioritising interventions to support parenthood (Civil Cassation, sec. I, judgment 30 October 2024, No. 27999).

Adoption

The most recent case law on adoption confirms an evolution of the institution increasingly oriented towards protecting the best interests of the child and, more generally, towards enhancing effective emotional relationships, while respecting the limits set by the legislator.

Full adoption and maintenance of emotional ties with the family of origin
As previously highlighted (see sec. 2 - state of abandonment), the Court of Cassation, in continuity with judgment No. 183/2023 of the Constitutional Court, clarified that art. 27.3, law No. 184/1983 does not exclude the possibility of preserving, where in accordance with the interests of the child, socio-affective relationships with certain members of the family of origin. The severance imposed by full adoption does in fact operate on a legal-formal level, but does not preclude a concrete evaluation of the child's emotional and identity needs. This assessment can intervene at different stages of the procedure (from the assessment of the state of abandonment to pre-adoptive custody) and must be accompanied by adequate preparation of the adopting family so that they understand the reason for the choice not to sever relationships and the need for an adjustment to the different modulation of adoptive parentage, albeit full and legitimizing (Civil Cassation, sec. I, judgment 6 May 2024, No. 12223; Civil Cassation, sec. I, judgment 16 April 2024, No. 10278).

Adoption in special cases
On the subject of adoption in special cases pursuant to art. 44.1.d, law No. 184/1983, case law has reaffirmed the centrality of the guarantees of representation of the child. In particular, even in the absence of a direct conflict with parents, the presence of conflicts between other family members requires the appointment of a special guardian, in order to ensure an impartial assessment truly oriented towards the best interests of the child (Civil Cassation, sec. I, judgment 18 September 2024, No. 25073).

The same attention to the substantive data emerges in cases of adoption of the partner's child, even in same-sex contexts. The automatic recognition of an adoption order completed abroad has been deemed compliant with international public order, where the effectiveness and stability of the emotional relationship between adopter and adoptee, the parental function actually performed by the “social parent” and the absence of the biological parent, who has lapsed from parental responsibility, have been ascertained (Trento Tribunal for minors, judgment 5 November 2024).

This line also includes rulings which, while excluding the possibility of indicating two mothers in the birth certificate of a minor born from medically assisted procreation carried out abroad, identify adoption in particular cases as the appropriate instrument to guarantee legal recognition of the bond with the intended parent, in coherence with the pre-eminent interest of the minor (Civil Cassation, sec. I, judgment 20 February 2024, No. 4448; Milan Court of Appeal, family section, judgment 6 February 2024).

A similar approach has been adopted in relation to minors born abroad through gestation for others. Without prejudice to the impossibility of transcribing or rectifying the birth certificate with the indication of the parent of intention, the Court of Cassation has identified adoption in special cases as the tool that, given the current legal system, allows for adequate protection of the child's primary interest. This institution, in fact, allows for the legal recognition of the emotional and relational bond established and experienced with the intended parent, while ensuring the acquisition of child status and the valorization of the de facto relationship with the partner of the biological parent who has shared the procreative project and contributed to the care of the minor since birth (Civil Cassation, sec. I, judgment 3 January 2024, No. 85).

Adoption of adults
With reference to the adoption of adults, the Constitutional Court declared art. 291.1 of the Civil Code in so far as it does not allow the judge to derogate, in cases of small difference and provided that there are worthy reasons, from the requirement of a minimum interval of eighteen years of age between adopter and adoptee. Such rigidity was, in fact, deemed unreasonable and incompatible with the inviolable right to personal identity enshrined in art. 2 Cost. The ordinary eighteen-year interval continues to apply as a general rule, but the identification of the balance point is left to the judge who, on a case-by-case basis and in balancing the interests involved, will assess whether there are worthy reasons that would allow this provision to be waived, in the event that the reduction in that gap is small. It is not considered necessary to further specify the concept of “scarcity”: it represents a general clause, which recalls the need to maintain a reasonable imitation of the gap existing in nature between parent and child (Constitutional Court, judgment 18 January 2024, No. 5).

The Court of Cassation also clarified that the adoption of adults, despite evolving over time to enhance their personal and solidarity profiles alongside the traditional patrimonial function, cannot be used instrumentally. The institution, in fact, remains subject to strict compliance with the conditions established by law for its authorisation and cannot be used to pursue interests unrelated to its typical function (Civil Cassation, sec. I, judgment 19 November 2024, No. 29684).

Child custody

Throughout 2024, civil case law further clarified the prerequisites, methods and limits of child custody, consolidating an approach oriented towards the best interests of the child and the need to ensure stability and continuity in care.

First, it was made clear that custody, even when ordered for an indefinite period, is not effective beyond the age of majority. The measure is strictly functional to protect the child's care needs and automatically ceases when the condition justifying its adoption ceases, regardless of the initially foreseen deadline (Civil Cassation, sec. I, judgment 30 December 2024, No. 34990).

The Court of Cassation has highlighted the importance of distinguishing between the two main types of reliance on social services. The first model is custody without limitations on parental responsibility. In this model, social services carry out a supervisory and support mandate, providing family assistance and surveillance activities for the child, without directly intervening in parental functions. In this context, the appointment of a special curator is unnecessary unless a concrete conflict of interest arises that prevents parents from independently protecting their child's interests. The second model is foster care, with limitations or abrogation of parental functions, which can be used when the need to protect the child's best interests arises. In this case, the law requires the appointment of a special trustee who represents the child impartially in the proceedings and ensures that judicial orders fully respect the child's rights. In both models, the Court reiterated that the judicial measure must precisely define the tasks entrusted to social services and the corresponding implementation timelines, ensuring that the measures adopted are proportionate to the concrete situation and respect the best interests of the child. Case law has reiterated that, in the presence of high conflict between parents, foster care represents a functional tool to guarantee stability for the child and to offer parents the opportunity to acquire a greater awareness of their role (Civil Cassation, sec. I, judgments 4 January 2024, No. 197; 21 August 2024, No. 23017; 09 May 2024, No. 12717). 

The Civil Cassation (sec. I, judgment 30 December 2024, No. 35000) specified that for unaccompanied foreign minors admitted to residential facilities, the municipality responsible for care services is identified on the basis of the minor’s actual residence, i.e., the place closest to the person's needs and suitable for assessing the care provided.

Particular attention was paid to the role of the child in the custody proceedings. The active participation of the child cannot be replaced by official technical advice alone: the information gathered by the consultant can only support the assessment of the child's interest, but it cannot amount to or replace the child's right to be heard. Therefore, the judge must promptly justify any omissions in directly listening to the minor, especially if he or she is of discernment age (Civil Cassation, sec. I, judgment 8 February 2024, No. 3576).

In matters of custody and placement of children of unmarried parents, the Court highlighted the breadth of the judge's powers. When a single parent challenges the decision ordering custody, the judge must adopt the solution that best protects the child's interests, reviewing the conduct of both parents and not just that of the person who challenged the order, not excluding placement with the parent who has not filed a complaint (Civil Cassation, sec. I, judgment 4 January 2024, No. 197).

In cases of separation between parents, if the distance between the parents' residences makes effective co-participation in the child's life impracticable, or if joint custody results in prejudice to the child, exclusive custody may be ordered for one parent, possibly with limitations on parental responsibility. This choice must always be guided by the exclusive moral and material best interests of the child, as well as by a careful, concrete assessment of the circumstances (Siena Tribunal, sec. I, judgment 19 February 2024, n. 141).

Abuse of means of correction or discipline

Throughout 2024, case law sought to clarify the very elusive nature of the crime of abuse of means of correction or discipline (art. 571 of the Criminal Code), which borders on the use of “robust” but non-violent educational measures and on forms of mistreatment sanctioned by art. 572 of the Criminal Code (mistreatment in the family).

The Court of Cassation reiterated that the exercise of corrective power by parents constitutes an expression of their educational duty, aimed not only at empowering the child, but also at developing a balanced personality aware of the relational dimension of their own existence. From this perspective, the legal system permits the lawful use of corrective and disciplinary measures. The use of a very modest force towards minors is tolerable only if it is episodic, proportionate, and unsystematic, provided it serves educational purposes, and provided that it does not translate into behavior that harms the physical integrity or dignity of the minor, nor into forms of suffering capable of compromising their harmonious development (Criminal Cassation, sec. VI, judgment 23 October 2024, No. 7330).

Any form of physical or mental violence committed against the minor, even when supported by a claimed educational purpose, requires the conduct to be classified under art. 572 of the Criminal Code, or as a crime of mistreatment in the family, which can be classified as continuous acts of harassment, such as to cause a situation of discomfort and suffering incompatible with the normal living conditions of the minor (Criminal Cassation, sec. VI, judgment 19 June 2024, No. 34276).

Case law on the merits has attempted to give concrete form to these principles. According to the Ancona Court of Appeal (judgment 16 April 2024, No. 467), for the purposes of establishing the crime of abuse of means of correction (art. 571 of the Criminal Code), it is necessary that the conduct, although characterized by excessive or pedagogically inadequate methods, be oriented towards educational or corrective purposes and do not cause the victim to be intolerably subjected, prostrated, or suffering. From this perspective, behaviours such as shouting, slapping, or damaging objects, if not causing serious injury and unsuitable for establishing a regime of systematic oppression, may fall within the scope of art. 571 of the Criminal Code, excluding the more serious case of mistreatment.

Furthermore, not all aggressive or counter-educational conduct is in itself sufficient to determine the nature of the crime, even if it itself constitutes an abuse of the means of correction: a concrete evaluation of the harmful suitability of the conduct is necessary, that is, of the danger it creates for the minor's psychophysical health, which is difficult to identify in isolated and sporadic episodes, devoid of particular afflictive incisiveness (Udine Tribunal, judgment 6 March 2024, No. 229). However, the crime of abuse of means of correction remains configurable when the use of physical force causes injury, manifestly exceeding the limits of ius corrigendi (Udine Tribunal, judgment 3 June 2024, No. 837).

Finally, with reference to the school context, it was recognised that the cause of non-punishability due to the particularly trivial nature of the act can only be applied in the presence of isolated conduct, of modest offensiveness and without significant consequences for the minor. In this specific case, case law has highlighted the fact that the author was suffering from already confirmed psychological disorders and had previously been removed from teaching activities, as well as the episodic nature of the event, without prejudice to the responsibility of the school administration for the failure to adopt adequate organizational and supervisory measures (Lecce Tribunal, sec. I, judgment 15 May 2024, No. 1417).

Rights in the school environment 

The judgment No. 5/2024 of the Constitutional Court, regarding mandatory vaccination, reiterates that protecting the health of the school community (through preventive health measures, including vaccination) justifies limitations on individuals' freedoms to protect the most vulnerable or immunosuppressed classmates. The rules on mandatory vaccination, therefore, do not conflict with art. 32 Cost.

The Civil Cassation (sec. III, judgment 16 May 2024, No. 13624/2024) has explored the issue of school civil liability (culpa in vigilando) for bullying committed during school hours. The school does not absolve itself of responsibility merely by demonstrating that its staff were vigilant at the time of the incident; it must prove that it had taken all appropriate organisational and disciplinary measures (for example, by implementing anti-bullying protocols) to prevent such events.

Regarding failures and disciplinary sanctions, the Regional Administrative Court of Veneto (sec. IV, judgment 13 February 2025, No. 219) declared the non-admission of a highly gifted student to the next grade unlawful simply because he or she failed to achieve minimum academic objectives. In fact, case law requires schools to implement personalised strategies that take into account each student's specific conditions, including their gifted status.

Child pornography

Throughout 2024, there was a jurisprudential evolution in the treatment of the crimes of pedophilia and child pornography present in articles 600-ter and 609-quater of the Criminal Code. 

Regarding the production of child pornography, the Constitutional Court, in judgment No. 91/2024, declared art. 600-ter of the Criminal Code unlawful for violating articles 3 and 27 of the Constitution, as the crime of producing pornographic material using minors under eighteen does not provide for a reduction in the penalty (up to two-thirds) in less serious cases. Art. 600-ter of the Criminal Code punishes with six years in prison even conduct not attributable to commercial pornography or characterised by reduced severity. According to the Court, it is unlawful not to allow the judge the discretion to vary the sentence based on a prudent global assessment of the facts.

The Criminal Cassation (sec. III, judgment 23 May 2024, No. 34588) is clear in stating that the crime of child pornography is perfected when the material is produced, as the creation of the material alone poses a danger to the dignity and integrity of the child.  The Court, therefore, reiterated the principle of “zero tolerance”: the creation of a single file is sufficient to trigger criminal liability.

Finally, in judgment 12 November 2024, No. 41982, the Criminal Cassation focuses on the concept of “utilisation of the minor”. The Court reiterates that, for the purposes of the crime of producing child pornography, in addition to the presence of the child in explicit photos, there must be a real exploitation of his person for pornographic purposes. Even if it is the minor who sends his own photos for pornographic use, thus proving “consenting”, this does not exclude the crime, as the difference in maturity between adult and minor must lead the former not to use that material.

Juvenile criminal trial

The Juvenile Court of Trento raised the question of the legitimacy of art. 27-bis of Presidential Decree 448/1988 (juvenile criminal trial). According to the remitting judge, the provision, introduced by art. 8.1, letter b) of Legislative Decree No. 123/2023 (the so-called “Caivano Decree”), converted by law No. 15/2023, introduces an “accelerated” reintegration and re-education program that conflicts with articles 3 and 31 of the Constitution.  The criticised provision would overemphasise the principle of speed of proceedings, compressing the possibility of applying personalised measures for the re-education of minors and thus compromising the educational purpose of the juvenile process.

The Criminal Cassation (sec. V, judgment 16 May 2024, No. 29652) establishes that, while for adults, probation is a benefit that, as a rule, can only be used once, in the juvenile system there is no absolute prohibition on repeating this measure. The minor detainee can therefore access such an institution even if he has previously used it for another crime.

The Criminal Cassation (sec. VI, judgment 6 March 2024, No. 17521) highlights that a minor with mental disorders may be in such a vulnerable condition that the trial and subsequent sanction do not constitute educational moments, but a punishment that the minor suffers without understanding its meaning. The Court of Cassation therefore suggests an early psychological analysis of the minor, to preserve his or her dignity as a person entitled to adequate care even while under criminal proceedings.