The Non-Waivable Right to Participation of Foster Parents: Cassation Court Ordinance No. 16342/2025

In the complex and delicate landscape of family law, the protection of minors represents a fundamental pillar. Every decision affecting a child's life must be made by prioritizing their best interests, a principle recognized by both national and international legislation. In this context, Ordinance No. 16342 of June 17, 2025, issued by the Court of Cassation, presided over by Dr. M. A. and reported by Dr. R. C., offers essential clarification on the role and rights of foster parents in proceedings concerning custody and adoption. The ruling, which saw N. M. G. and V. in opposition, quashed and remanded the judgment of the Court of Appeal of Rome, highlighting a procedural aspect of crucial importance for the correct assessment of the minor's best interests.

The Crucial Role of Foster Parents in the Minor's Journey

Out-of-home care is a legal instrument designed to provide a minor, temporarily lacking a suitable family environment, with a healthy and protective upbringing context. Foster parents are not mere custodians; they assume a vicarious role to that of parents, integrating into the minor's daily life and becoming stable and essential reference figures for their psychophysical and emotional development. Law No. 184 of 1983, "The Minor's Right to a Family," and its subsequent amendments, particularly those introduced by Law No. 173 of 2015, have progressively strengthened the recognition of foster parents' centrality, not only as caregivers but as active and informed participants in decisions concerning the minor.

The Ruling of Ordinance No. 16342/2025 and Its Significance

The Court of Cassation, with its Ordinance, has forcefully reiterated a principle already present in our legal system, but which requires constant attention for its correct application. The ruling states:

In out-of-home care, foster parents, as vicarious figures of parents and by virtue of the daily nature of their relationship with the child, must be summoned, under penalty of nullity, pursuant to Article 5, paragraph 1, of Law No. 184 of 1983, as amended by Article 2 of Law No. 173 of 2015, in civil proceedings concerning parental responsibility, custody, and adoption, and therefore, also in appeal proceedings, in order to allow for a complete assessment of the minor's best interests.

This pronouncement is of fundamental importance. The Cassation Court clarifies that the summoning of foster parents in proceedings affecting parental responsibility, custody, and adoption of a minor is not a mere formality but an essential requirement, the absence of which leads to the nullity of procedural acts. The reason is twofold: on the one hand, foster parents are recognized as "vicarious figures of parents," which grants them a position almost equivalent to that of parents, albeit temporary and with specific purposes. On the other hand, the "daily nature of their relationship with the child" makes them custodians of valuable and irreplaceable information regarding the minor's health status, needs, habits, and desires. Ignoring their contribution would mean depriving the judge of essential knowledge for a "complete assessment of the minor's best interests," the true guiding principle of every judicial decision in this matter.

Practical and Legal Implications for the Protection of Minors

The Cassation Court's Ordinance has a significant impact on judicial practice and the protection of minors' rights. Here are the main implications:

• Obligation to Summon: The obligation for the judge to summon foster parents in all levels of judgment, including appeal, in proceedings concerning parental responsibility, custody, and adoption is reinforced.
• Procedural Nullity: The failure to summon foster parents renders the proceeding null and void, a serious defect that can compromise the entire procedure and the validity of the decisions made.
• Minor's Best Interests at the Forefront: The ruling reiterates that the primary objective is always and in any case the protection of the minor's best interests, and that the participation of foster parents is instrumental to this end.
• Recognition of the Role of Foster Parents: The recognition of the active and irreplaceable role of foster parents, whose direct knowledge of the minor is fundamental for guiding judicial choices, is consolidated.

This decision aligns perfectly with Article 5, paragraph 1, of Law 184/1983, as amended by Article 2 of Law 173/2015, which already provided for the right of foster parents to be heard. The Cassation Court has here emphasized the sanction of nullity for its non-observance, elevating the principle to an unwaivable procedural guarantee.

Conclusions: A Step Forward for Juvenile Justice

Ordinance No. 16342/2025 of the Court of Cassation represents a further, fundamental piece in the construction of a judicial system increasingly attentive to the needs of minors and to the valorization of all figures who contribute to their well-being. It not only clarifies a crucial procedural aspect but also strengthens the principle that the minor's best interests cannot be adequately protected without full knowledge of their daily reality, of which foster parents are the most direct and qualified witnesses. For legal professionals, this ruling is a reminder to vigilantly ensure compliance with procedural guarantees, ensuring that every relevant voice, especially that of those who live in close contact with the minor, is heard for full and effective justice.