| title | Jurists, experts and children: Comparative study on the utilized forms of non legal knowledge regarding foster care for minors. |
| consultor | Luigi Goffredi |
| coordinator | Prof. Alessandro Simoni |
| researcher | Christian Diesen, Professore di diritto processuale presso l’Università di Stoccolma; Philip Milburn, Francia; Kathleen Schnoor, Germania; Jörg M. Fegert, Germania; Trevor Buck, University di Leicester, Inghilterra |
| description | Procedures regarding fostercare for minors are in fact atypical demonstrations of modern forms of justice that affect values which are not well governed by the rights of the state and are difficult to classify in precise norms. The removal of a minor from a family and the consequential placing him/her into the foster care of another require a serious legitimation of judicial power, that in this context, finds difficulty in basing itself solely on the referal to a norm/law, because of the incapacity on behalf of legislators who sufficiently standardize forms of discomfort in the family in order to decrease the judge’s responsiblilty. Obviously, the question here is placed on another scheme, that is, the legitimation of judicial decisions that are not purely and formally judicial but that proceed through their integration with evaluations of other types, primarily scientific ones. This intricate characteristic of laws regarding minors often leads the public opinion to a “personalization” of judicial activities, that is no longer seen as the neutral application of laws but as the expression of pure discretionality on behalf of the operating judge. The social, moral and political responsability is assigned to he who is part of the judiciary system to make decisions often seen as unjust, ( this is also due to the lack of a precise reference of parameters), and given the values which are involved, (the sacral character of blood – ties) inevitably have great emotional impact. This “personalization” is reflected in some recent government policies, apparently bent on transforming the special units/organs of justice regarding minors and eliminating “expert” judges on internal levels. This is how the problem presented itself in the political arena in terms of balancing abstract values, on the one hand, the power of the state and on the other, the autonomy of the family, paradoxically forgetting that the real difficulty of standardizing forces the system to evaluate every legislative reform project within the setting of the reality of decisive trials that then prepare the choices regarding the removal of minors and their placing in foster homes. Above all, on the basis of the knowledge linking the actual relationship between jurists and “experts”. This relationship is not a simple one because it forces the jurists to confront science /scientific evidence and multi-faceted professional groups who are also full in internal contradictions. In this case, knowledge of reality can come about in many ways, one of which happens to be the most effective: Comparison, in other words, a rational confrontation of the composition of the same phenomenon in diverse yet similar contexts. Regarding the aspect that particularly interests us here, it is clear how much one can learn from the comparison among decision-making trials involving regulations which are not too distant in their basic judicial data. ??? Is the functioning system in Italy regarding the removal of minors and their eventual foster care truly a peculiar one? Are the forms of use regarding non judicial knowledge (both internal and external to the judging organs) truly decisive for obtaining results from trials? Does the advanced “Juridiction” of judicial bodies allow for a greater degree of guarantee for the parties involved? Whoever wishes to answer these questions has not had until today any available information outside of Italy, due to the lack of compared studies regarding laws for minors. In order to correct this cultural gap, the publication of a collective volume of studies regarding diverse European regulations, chosen on the basis of their importance and relevance to the particulare Italian prospective or for their overall evaluation of alternatives of political or hypothetical rights, supported by essays of a general character regarding judicial/expert relationships in laws regarding minors. |
| target aims | Custody and promotion of rights regarding minors and families |
| destination | Minors and families |
| methodology | The chosen segment strives to avoid research that is too vast and instead closely examines experiences that indeed show aspects of importance, or that however are representative of particular judicial traditions.The foreign regulations/laws that will be studied include England, France, Germany and Sweden. The choice will give us the possibility to know/discover the evolution of the problem considered in the main judicial European and Roman-germanic traditions and in common law, but also to pay close attention to specific aspects regarding the custody of minors. Trials involving minors in each individual country are in fact the result of an evolution upon which visions about characteristics and functions involving civil trials are of a certain influence but also the balance between jurisdiction and administration. One can arrive at the explanation of certain phenomenons by distinguishing between models of “adversary” trials and models that leave a more ample power to the judge’s initiative, (for example, the use of experts respectively as auxiliaries of the judge or means of evidence produced wholely by the parties). In cases regarding the trials of the condition of minors, there are other influencing factors for which traditional divisions of trial systems are not decisive, as for example, the extremely important role played by the non judicial structures, namely social services. A role that can be concealed, as when the courts tend to ratify positions expressed by the social services but that can also be completely substitutive of court activity, which has occurred in some social states like Sweden. Contributions will be written by foreign experts and translated into Italian. In order to avoid drawbacks that can be frequent in this type of research, and to guarantee homogeneity in the gathering of data , the authors will prepare their contributions on the basis of a detailed outline provided by the curator/administrator. The contributions will describe not only the laws in force but also the applicative procedures, problems and tensions/pressures. The authors will not only include “pure” academicians but also people with practical experience such as judges or lawyers. The essays will provide a synthetic yet complete panorama of the procedures involving foster care in these various countries even though the documentation is centered on the specific problem regarding the relationship between judicial and non judicial knowledge. The essays of foreign origin will be followed by a component dedicated to Italian rights with the emphasis on reform tendencies and another part entrusted to a psychologist where there will be a description of problems that arise by the involvement of sciences that study infancy/childhood in trial mechanisms. An opening chapter will synthesize the results of the research. |
| financial loans | Cofinancing CESVOT Self-financing Il Forteto Foundation |
| partner | Fondazione Il Forteto Onlus; Cesvot; Università degli Studi di Firenze, Dipartimento di Diritto Comparato e Penale della Facoltà di Giurisprudenza |
