the Court of Verona takes stock
JURISPRUDENTIAL GUIDELINES |
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Compliant |
Tribe. Florence, Tutelary Judge Office, decree February 15, 2022 Tribe. Milan section IX, November 22, 2021 Tribe. Milan section IX, September 13, 2021 Tribe. Monza section IV, July 22, 2021 |
Different |
Court of Pistoia March 4, 2022 |
The Court of Verona, in acceptance of the minors draw by Ms DB, mother of two, has authorized the instant to do to the girlsupon negative outcome of antigenic tests aimed at detecting the possible presence of AntiCovid, vaccination against Covid 19 as well as accompanying them to a vaccination center and signing the relative informed consent even in the absence of the consent of the other parent.
In particular, the Scaligero Court acknowledged that the minor onesduring their respective hearings, they clearly expressed their willingness to undergo the vaccinations provided, for the main purpose, which they refer to, to avoid restrictions on personal freedom in their relationship life.
This perspective must certainly be seconded as it is aimed at promote a correct psychophysical balance of minors, which constitutes one of the components of their health and personality, also due to the phase of growth they are experiencing; that it should still be pointed out that the vaccination of the two minors allows them to return to see their father, who, moreover, has made a specific question in this regard, as well as the paternal siblings and grandparents, who are all peacefully unvaccinated, with a very low risk of getting infected and infecting the aforementioned; that the resumption of family relationships is also an important aspect of the psycho-physical development of minors.
In a more general perspective – observes the Veronese College – it is known that the pandemic is currently in a phase in which the highly contagious Omicron 2 variant prevails, which is especially widespread in the younger age groups, so that vaccination of they can contain the spread of the contagion; with regard to the extension of the anti-COVID-19 vaccine to children aged between 5 and 11, it is appropriate to recall the recommendation of the EMA’s Committee for Medicinal Products for Human Use (CHMP).
A main study in children in this age group showed that the immune response to Comirnaty, given at a lower dose (10 µg) in this age group, was comparable to that seen at the higher dose (30 µg) in the age group between 16 and 25 years (measured by target level against SARS-CoV-2).
The effectiveness of the Commission was calculated on about 2,000 children aged 5 to 11 who do not show signs of previous infection; the children received the vaccine or placebo (dummy injection); of the 1,305 children who received the vaccine, three developed COVID-19, compared with 16 of 663 children who received placebo.
Thus, in that study, the vaccine was 90.7% effective in preventing symptomatic disease (although the true rate could be between 67.7% and 98.3%).
The most common side effects seen in children aged 5 to 11 years are similar to those seen in people aged 12 years and older (these include injection site pain, tiredness, headache, redness and injection site swelling, muscle pain and chills) and these effects are usually mild or moderate and improve within a few days of vaccination.
Therefore, the CHMP considered that the Commission’s benefits outweigh the risks in children aged 5 to 11 years. In conclusion, the Court held – on the basis of indications from the scientific community – that the vaccination is in the interests of the minor and has consequently accepted the mother’s request.
The provision under review follows the path traced by the prevailing jurisprudence of merit which, in similar disputes, resolves the conflict between parents in favor of the one who acts to obtain authorization for the administration of the vaccine for their children.
Beyond the resolution of the merits of the dispute, the order is also marked for having affirmed – in the face of the objection raised by the defendant – the jurisdiction of the ordinary court based on art. 316 of the Italian Civil Code
On this point, it should be remembered that different jurisprudence has been registered in the directive.
According to some Courts, where the parents are not separated and there are still conflicts regarding the appropriateness of administering the vaccine to their children, the competence is attributed to the Juvenile Court which will be brought in an appeal pursuant to Articles 333 and 336 cc (cf. Tribe. min. Trieste 5 November 2021).
There have been other courts, such as that of Genoa, where even the competence of the Tutelary Judge has been recognized pursuant to art. 3, paragraph 5 of Law no. 219/2017.
This law protects the right to life, health, dignity and self-determination of the person by establishing that no health treatment can be or continued with the free and informed consent of the person concerned, except in cases expressly provided for by law.
In particular, art. 3 paragraph 5 of the aforementioned law provides that “In the event that the lawyer of the disabled or disabled person or the support administrator, in the absence of the anticipated treatment provisions (DAT) referred to in Article 4, or the legal representative of the minor refuses the proposed treatments and the doctor considers instead that these are appropriate and necessary, the decision is left to the tutelary judge upon appeal by the legal representative of the person concerned or by the subjects referred to in articles 406 and following of the civil code or the doctor or legal representative of the health facility “.
The family judges of the Court of Genoa adopted on 23 September 2021 the guidelines relating to the procedural rules applicable in the event that “disagreements on consent” arise in relation to vaccinations against COVID-19 to be administered to minors, considering that art. 3, paragraph 5 of Law no. 219/2017 is a special rule, intended, as such, to prevail over other provisions of a general nature.
Therefore, for the Court of Genoa, the competence would be of the Tutelary Judge and the procedure that will follow the rite of voluntary jurisdiction – must be introduced with an appeal to the GT except in cases in which it is already pending in the judgment of separation, secondment before the Ordinary Court or a procedure for forfeiture of parental responsibility before the Juvenile Court. In such cases the jurisdiction is rooted before the ordinary and juvenile judge.
Faced with the presentation of the appeal, the Tutelary Judge, before deciding pursuant to art. 3, paragraph 5 of Law no. 219/2017 must:
– hear from parents; – to hear the personal minor or if he or she has reached the age of twelve even under the age of one where capable of discernment; – to consult the competent doctor to obtain the opinion Finally, there was no lack of jurisprudential addresses diametrically opposed to on the basis of which the exclusive competence of the ordinary Court was recognized even when a separation procedure is not in progress between the parents. (cf. Tribe. Parma, section I civ., Sent. 11 October 2021). |
The Judges, in the case submitted to their knowledge, recognized their competence following the presentation of an urgent appeal by a parent who had asked to be able to proceed independently to vaccinate minor children despite the mother’s refusal.
For the Court of Parma, art. 316 of the civil code, which attributes disputes concerning the conflict between parents exercising parental responsibility on issues of particular importance such as health to the Ordinary Court.
The Juvenile Court also ruled in line with this ruling (Cf. Tribe. min. Turin, 1 October 2021) who pointed out that “if the parent on a matter of particular importance is inserted in the course of a provision of parental authority in front of the juvenile authority, the latter would not be competent to settle the conflict, not being precisely foreseen for it reads an attractive vis in reverse in favor of the Juvenile Court in relation to questions falling within the jurisdiction of the ordinary Court, unless the conflict actually results in a bad exercise of parental responsibility. Only in this eventuality and provided that a de potestate proceeding is already pending before the Juvenile Court, will the juvenile judicial authority also have to decide on the conflict “.
Outcome:
Acceptance of the appeal
Normative requirements:
Art. 316 cc
Art. 709 cc ter