Judgment No. 11138 of 2024 and the Importance of the Minor's Interest in the Declaration of Adoptability

In the Italian legal landscape, Judgment No. 11138 of April 24, 2024, by the Court of Cassation, represents an important reflection on the delicate issue of adoption and the declaration of adoptability. The Court, referencing Constitutional Court Judgment No. 183 of 2023, emphasizes the importance of considering the minor's interest within the context of affective relationships with the biological family.

Regulatory and Jurisprudential Framework

Article 27 of Law No. 184 of 1983, which governs adoptions in Italy, stipulates that a declaration of adoptability can only be issued when the judge ascertains the minor's state of abandonment. However, the recent interpretation provided by the Constitutional Court requires the judge to carefully assess whether the cessation of socio-affective relationships with the family of origin is truly in the minor's best interest. This approach deviates from a purely formal view, demanding a deeper consideration of the affective bond, which can influence the minor's well-being.

The Judge's Role in the Declaration of Adoptability

The Court of Cassation, in the judgment under review, rejected the appeal to confirm that, in proceedings for the declaration of adoptability, it is essential not only to ascertain the state of abandonment but also to consider the maintenance of relationships with the family of origin, if this serves the minor's interest. In the specific case examined, a significant affective bond emerged between the minors and their mother and grandmother, leading the judge to decide not to sever these relationships.

Declaration of adoptability - Art. 27 of Law No. 184 of 1983 - Constitutionally oriented interpretation - Constitutional Court judgment No. 183 of 2023 - Minor's interest in maintaining relationships with the family of origin - Assessment - Necessity - Specific case. In the matter of declaration of adoptability, the constitutionally oriented interpretation of Article 27, paragraph 3, of Law No. 184 of 1983, as per Constitutional Court judgment No. 183 of 2023, requires the judge to assess whether the cessation of socio-affective relationships with the biological family, as a consequence of the rupture of the legal-parental bond, is in practice consistent with the minor's interest. (In this specific case, the Court of Cassation upheld the appealed judgment which, in proceedings for the declaration of adoptability, had allowed the minors' relationships with their mother and grandmother not to be severed, due to the affective bond that emerged from the technical expert's report).

Implications of the Judgment

This judgment has several implications for family law and adoption practices. Among these, the following can be highlighted:

• Re-evaluation of affective bonds: Judges must consider the existing affective bonds between the minor and their biological family.
• Minor's interest: The assessment must always be oriented towards the superior interest of the minor, as provided by national and international regulations.
• Need for in-depth analysis: It is crucial for judges to conduct a thorough and personalized analysis of each individual case, avoiding standardized approaches.

Conclusions

Judgment No. 11138 of 2024 by the Court of Cassation marks an important step towards greater protection of minors' rights in adoption situations. By recognizing the importance of affective bonds with the family of origin, the Court offers food for thought for all legal professionals and families involved in the adoption process. The careful and personalized analysis of affective relationships represents a fundamental element for ensuring the well-being of minors and the respect of their rights.