Author
The system of guardianship is not specific to the asylum procedure. A guardian is appointed when children do not have legal capacity and no parents or other relatives or persons who could exercise parental authority are present in the territory.[1] The guardian is responsible for the protection and the well-being of the child.
The Reception Decree, as amended by L 47/2017, provides that affective and psychological assistance is guaranteed to children in every state of the procedure, through the presence of suitable persons indicated by the child and authorised by the relevant authorities.[2] It also guarantees that the unaccompanied child has the right to participate, through a legal representative, in all judicial and administrative proceedings concerning him or her and to be heard on the merits of his or her case. To this end, the law also guarantees the presence of a cultural mediator.[3]
The individuals working with children shall possess specific skills or shall in any case receive a specific training. They also have the duty to respect the privacy rights in relation to the personal information and data of the minors.[4]
The Reception Decree provides that the unaccompanied child can make an asylum application in person or through their legal guardian on the basis of the evaluation of the situation of the child concerned.[5]
Timing of appointment
The Reception Decree, as amended by LD 220/2017, which entered into force on 31 January 2018, provides that the public security authority must give immediate notice of the presence of an unaccompanied child to the Public Prosecutor at the Juvenile Court and to the Juvenile Court (Tribunale per i minorenni) for the appointment of a guardian.[6] The Juvenile Court is the sole competent authority following the 2017 reform.
An appeal against the appointment of the guardian is submitted to the Juvenile Court in collegial function. The judge issuing the decision of appointment cannot take part in the examination of the appeal.
Where a guardian has not yet been appointed, the manager of the reception centre is allowed to support the child for the lodging of the asylum application at the Questura.[7] As clarified by the CNDA, however, the guardian remains responsible for representing the child in the next steps of the procedure.[8]
Duties and qualifications of the guardian
According to the Procedure Decree, the guardian has the responsibility to assist the unaccompanied child during the entire asylum procedure, and even afterwards, in case the child receives a negative decision on the claim.[9] For this reason, the guardian escorts the child to the police – where they are fingerprinted in case of being over 14 years of age – and assists the child in filling the form and lodge the asylum claim. The guardian also has a relevant role during the personal interview before the Territorial Commission, who cannot start the interview without his or her presence.[10] The law provides that a member of the Territorial Commission, specifically trained for that purpose, interviews the child in the presence of his or her parents or the guardian and the supporting personnel providing specific assistance to the child. For justified reasons, the Territorial Commission may proceed to interview again the child, even without the presence of the parent or the legal guardian, at the presence of supporting personnel, if considered necessary in relation of the personal situation of the children, their degree of maturity and development, and in line with their best interest.[11]
The guardian must be authorised by the Juvenile Court to make an appeal against a negative decision. The law does not foresee any specific provision concerning the possibility for unaccompanied children to lodge an appeal themselves, even though in theory the same provisions foreseen for all asylum seekers are also applicable to them.
Each guardian can be appointed for one child or for a maximum of three children.
To overcome existing deficiencies and lack of professionalism among guardians, L 47/2017 has established the concept of voluntary guardians. A register of such guardians has to be kept in every Juvenile Court.[12]
The Regional Children’s Ombudsperson is responsible for selecting and training guardians. The National Children’s Ombudsperson has established specific guidelines on the basis of which calls for selection of guardians have already been issued in each region.[13] Training courses have started in most of the cities.
The law assigns the responsibility to monitor the state of implementation of the guardianship provisions to the Children’s Ombudsperson (Italian Independent Authority for children and adolescents – Agia).[14] The Regional Children’s Ombudsperson and the one of the autonomous provinces of Trento and Bolzano have to cooperate regularly with the Children’s Ombudsperson, to whom they have to submit a report on their activities every two months. A monitoring project financed with the AMIF fund and managed by the Ministry of the Interior was launched to implement the provision.
In March 2021 the Children’s Ombudsperson published five reports, dated November 2020 on the voluntary guardianship system for unaccompanied minors in Italy.[15]
As emerged from the fifth report on quantitative aspects, the total number of voluntary guardians as of 30 June 2019 was 2,960. Of these, 3 out of 4 were women, 63.1% were over 45 and most of them (78.2%) were employed, while retirees represented the 10.8% of the total.
Critical issues regarding the guardians were reported in the survey published in December 2020 by Defense for Children, Cespi and the Observatory on unaccompanied foreign minors, which focused on a monitoring exercise carried out in the cities of Genoa, Rome, Bologna Ancona and Palermo.[16]
In general, the figure of the guardian appeared worryingly absent in the identification procedures of the minor, and significant gaps emerged between the number of volunteer guardians and the number of minors present. Moreover, critical issues regarded the difficulties for guardians to participate in specific trainings, as well as the timeliness of the appointment with respect upon arrival of the minor on the national territory.
Up to the time of writing, the Children’s Ombudsperson published 4 general monitoring reports on voluntary guardianship.[17]
In November 2022, within the voluntary guardianship system monitoring project, the Children’s Ombudsperson published the fourth general survey,[18] reporting that, as of 31 December 2021, there were 3,457 voluntary guardians appointed by the Juvenile Court, slightly decreasing compared to the 3,469 present at the end of 2020. In March 2023, the Children’s Ombudsperson stressed the importance of training new volunteer guardians since the number of UAMNs at the end of 2021 was 12,284.[19]
As emerges from the report, by the end of 2021, Italian guardians were mainly female (67%), with a university degree (65.18%) and aged between 46 and 60 (41.70%). In 2021, guardians under the age of 36 increased, in particular those between 18 and 24 who went from zero to 11.55%. During the year 2021, after the reduction in number linked to the 2020 pandemic, 13 courses were held by the regional guarantors and the autonomous provinces.
A total of 5,737 tutor-foreign minor pairings were accepted in 2021. The most frequent reasons due to which the volunteer guardians did not accept the matching proposals were work problems (73.31% of the guardians are employed), personal and/or health reasons, lack of personal resources, distance from the domicile of the minor.[20]
Additionally, as highlighted in the mentioned regional report published by Defence for Children and Cespi,[21] the concentration of minors in some regions (such as Sicily) more than in others has a concrete impact on the possibility of finding enough guardians.
Similar to the conclusions reached by the Children’s Ombudsperson, the survey conducted by these organisations highlighted how often the guardians refused the guardianship if the minors were accommodated in places far from their domicile, or in cases in which they did not feel supported by social services.[22]
However, possibly the new regulatory provision regarding the recognition of expense reimbursements to guardians for the assignment performed could change the situation: on 19 September 2022 it entered into force the Decree of the Ministry of Interior and the Ministry of Economy and Finance of 8 August 2022 concerning the discipline of reimbursements and interventions in favour of the voluntary guardians of unaccompanied minors.[23]
The decree provides for the reimbursement to private employers of voluntary tutors up to 60 hours per year.[24] Furthermore, it provides for the total reimbursement of transport costs in case of use of public transport and a reimbursement per kilometre in case of use of private vehicles.[25] Also, the decree provides that, upon termination of the role, the guardian can apply to the juvenile court for the assignment of a fair indemnity when the activities carried out in the course of guardianship were particularly complex and onerous, subject to the presentation of a specific report. In such cases, the court may award an indemnity of up to 900 euros. This indemnity is excluded if the assignment was carried out in the three months prior to coming of age. Any refusal can be complained of before the juvenile court.[26]
[1] Article 343 et seq. Civil Code.
[2] Article 18(2-bis) Reception Decree, inserted by L 47/2017.
[3] Article 18(2-ter) Reception Decree, inserted by L 47/2017.
[4] Article 18(5) Reception Decree.
[5] Article 6(3) Procedure Decree.
[6] Article 19(5) Reception Decree, as amended by LD 220/2017.
[7] Article 26(5) Procedure Decree, as amended by L 47/2017.
[8] CNDA Circular No 6425 of 21 August 2017, available in Italian at: http://bit.ly/2Fn38Um.
[9] Article 19(1) Procedure Decree.
[10] Article 13(3) Procedure Decree.
[11] Ibid.
[12] Article 11 L 47/2017.
[13] Children’s Ombudsperson, Guidelines for the selection, training and registration in the lists of voluntary guardians pursuant to Article 11 L 47/2017, available in Italian at: http://bit.ly/2Dgl4tS.
[14] Article 11 L. 47/2017 as amended by Article 2 (3) LD 220/2017.
[15] Of the 5 reports, 4 represent a qualitative survey on: unaccompanied foreign minors without a matched voluntary guardian; unaccompanied foreign minors with guardians; voluntary guardians; intercultural relations. The qualitative monitoring, started in November 2019 and concluded in February 2020, involved five pilot regions: Friuli Venezia Giulia, Liguria, Tuscany, Abruzzo and Sicily. The last is a quantitative survey updated to 30 June 2019, carried out with the participation of the juvenile courts and the regional and autonomous provinces guarantors. All reports are available in Italian at: https://bit.ly/3a4nmCq.
[16] Defence for Children, Cesp, Observatory on unaccompanied foreign minors, available at: bit.ly/3lqFQD5.
[17] All reports are available at the Children’s Ombudsperson (AIGIA) page, available at: bit.ly/3ZXZfds.
[18] Fourth monitoring report on the voluntary guardianship, November 2022, available at: bit.ly/3ZXZkxM, with a synthesis “Tutela volontaria. IV rapporto monitoraggio: aumentano Msna e calano leggermente tutori, available at:.bit.ly/3JsRKUZ.
[19] Children’s Ombudswoman assessment, “Migranti minorenni, l’Autorità Garante: prepariamoci ad accoglierli con più tutori volontari, 14 March 2023, available at: bit.ly/3JQgE2e.
[20] See Tutela volontaria. IV rapporto monitoraggio: aumentano Msna e calano leggermente tutori, 30 November 2022, available at: bit.ly/3JsRKUZ.
[21] Defence for Children and Cespi Report for 2021, Minorenni stranieri non accompagnati, Legge 47/2017, rapid survey on Apulia, Marche, Liguria, Sicily, published on June 2022, available in Italian at: bit.ly/3li1SI0.
[22] Defence for Children and Cespi Report for 2021, Minorenni stranieri non accompagnati, Legge 47/2017, published on June 2022, available in Italian at: bit.ly/3li1SI0.
[23] Decree of 8 August 2022 on the reimbursements in favour of the voluntary guardians of unaccompanied minors, available at bit.ly/3JKExXZ.
[24] Decree of 8 August 2022, Article 2.
[25] Ibid. Article 3.
[26] Ibid. Article 4.