Dr Guido Noto La Diega is a Lecturer in Law at Northumbria University. Please tweet comments to @guidonld or email the author: guido.notoladiega@northumbria.ac.uk.
While same-sex marriage is visibly gaining momentum (see Australia, Austria, Germany and Malta this year), many countries have not fully recognised the rights of same-sex couples. This usually takes the form of civil unions (e.g. Italy and Greece) or of no recognition (e.g. Poland and Lithuania). However, other solutions are also possible. For instance, some countries recognise only same-sex marriages celebrated abroad (e.g. Armenia and Estonia).
In Northern Ireland, adoption has been available to same-sex couples since 2013, even though the Northern Ireland Assembly voted against same-sex marriage (Northern Ireland Human Rights Commission, Re Judicial Review [2013] NICA 37). However, in many countries where there is no same-sex marriage, these couples cannot access adoption. This is the case in Italy, even though the case that is commented on here brings some good news.
In Italy, the Adoptions Act (Legge No 183/1984) allows only married couples to adopt a minor. Since only heterosexual couples can get married, same-sex couples are de facto excluded from the adoption. However, this regime applies only to internal situations (e.g. two women domiciled in Italy adopting a minor in Italy). Different rules apply to the adoption by same-sex couples in other countries, once the couple asks the Italian authorities (ufficiale di stato civile) to recognise the effects of the adoption. This is the topic recently clarified by the Court of Appeals of Genoa, with ordinanza No 1319 of 1 September 2017.
FACTS
Two married men adopted a child in Brazil and the civil servant competent for the registration of foreign decisions (ufficiale di stato civile) refused to register the adoption in Italy on the grounds that the Adoption Act did not allow unmarried couples to adopt and that the judge was required to assess the legality of what the civil servant considered an international adoption. This situation may look bizarre, given that the couple was not an unmarried one. However, the Italian legislator opted to automatically downgrade same-sex marriage celebrated abroad to civil unions (art. 32 bis, Private International Law Act, Legge No 218/1995).
One of the husbands, an Italian-Brazilian man, lodged a complaint before the Court of Appeal of Genoa arguing that when it comes to national adoptions celebrated abroad the Italian Adoption Act was not applicable. Conversely, the Private International Law Act should prevail, which meant that foreign adoptions should automatically be recognised, if there was no public policy reason not to.
HELD
The Court of Appeal rejected all the defenses put forward by the civil servant and held that same-sex adoptions celebrated abroad should be automatically recognised in Italy by the competent civil servants, without any need for judicial scrutiny.
The main reason is that even though Italian unmarried couples cannot adopt in Italy, there is no public policy or ordre public (ordine pubblico) consideration preventing the full recognition of the effects of foreign same-sex adoptions.
Under art. 65 of the Private International Law Act, the recognition of foreign adoptions is automatic, if it meets three requirements. First, the foreign authority has to be competent and this was the case with the Brazilian Tribunal de Justiça authorising the adoption. Second, the recognition of the effects must not be contrary to the ordre public. This being the main and most problematic point, the following analysis be look into it separately. Third, the right to a fair trial must be ensured and, in this case, it was proved because the Brazilian judge attested to the respect of all the relevant substantial and procedural rules.
The notion of ‘ordre public’ is a vague one, which evolves in response to societal changes and international legal developments. It has the purpose of preventing the application of foreign laws or the recognition of foreign decisions that would be contrary to the foundations themselves of the Italian legal system. The Italy Supreme Court (Corte di Cassazione, 30 Septembre 2016 No 19599) held that the fact that a national provision is imperative is not enough to qualify as ordre public. Indeed, a foreign law or decision is contrary to ordre public only if does not comply with the fundamental principles of Italian law and, in particular, with human rights laws enshirened in the Italian Constitution, the EU treaties, the Charter of Fundamental Rights of the EU and the European Convention of Human Rights.
Now, the Court of Appeals of Genoa makes clear that the national regime preventing same-sex couples from accessing adoption is not of a ‘fundamental’ nature and, therefore, does not meet the criteria for the ordre public. Consequently, foreign same-sex adoptions shall be automatically recognised in Italy.
However, this goes with the proviso of the best interests of the child. Indeed, judgements relating to parental responsibility shall not be recognised “if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought taking into account the best interests of the child” (Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, art 23(a)). This is a question of fact, but courts usually hold that remaining in the adopting family and the recognition of all the relevant legal effects is in the best interest of the child. In this case, the child had been living with the couple since he was 12 months old and for 2 years.
The ordre public notion is becoming a principle that opens, as opposed to closing, the national legal systems to facts and values that are not fully recognised internally. This erosion of the ordre public is not only due to international developments and societal changes, but also to the role of the best interest of the child. Indeed, foreign laws and decisions that could prima facie seem contrary to public policy are deemed not to be because the reflect the best interests of the child (cf. European Court of Human Rights, Paradiso and Campanelli v. Italy, app. 25358/12).
While eventually recognising foreign same-sex adoptions to their full extent, the Court of Appeal’s clarification that the ban to national same-sex adoptions may have further repurcussions. Indeed, it could open the doors to a national form of adoption called ‘international adoption.’ This is the possibility for Italian couples to adopt foreign minors. One of the main factors a judge needs to assess before authorising the international adoption is whether the adoption would be contrary to the fundamental principles of Italian law. Since it is now clear that the de facto exclusion of homosexuals from adoption is not ‘fundamental’, one may foresee that future case law will enable Italian same-sex couples to adopt foreign children.
Italian speakers can read the full paper here. The paper should be cited as Guido Noto La Diega, ‘Corte d’appello di Genova: riconoscimento automatico di adozione omogenitoriale nazionale straniera’ (Articolo 29, 4 December 2017) <http://www.articolo29.it/2017/corte-dappello-genova-riconoscimento-automatico-adozione-omogenitoriale-nazionale-straniera/>
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