MINORS PROTECTION IN DOMESTIC VIOLENCE, Deborah Breda

The Implementation of Article 31 of the Istanbul Convention in Italy

Abstract: The Istanbul Convention (2011) is a fundamental international legal instrument for preventing and combating violence against women and domestic violence. Article 31, in particular, addresses the sensitive issue of child custody and visitation rights, establishing the obligation to prioritize the safety of the victim and of minors in judicial decisions. This contribution examines the normative implications of this article, the paradigm shift it requires within national legal systems, and the critical issues that have emerged in its implementation in Italy, which is often characterized by the so-called “protective paradox.”

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versione italiana

Introduction

The Council of Europe Convention on preventing and combating violence against women and domestic violence, better known as the Istanbul Convention, represents a milestone in the legal recognition of gender-based violence as a violation of human rights. Entering into force in 2014, it imposes specific obligations on the States Parties aimed at protecting victims as well as preventing violence.

Article 31 constitutes a crucial element of this regulatory framework, as it addresses the sensitive issue of child custody and visitation rights in cases involving domestic violence. It affirms the need for judicial decisions to give absolute priority to the safety of the victim and of children, overcoming traditional approaches that often prioritized maintaining contact with both parents at any cost.

Key Text and Interpretation of Article 31

“1. Parties shall take the necessary legislative or other measures to ensure that, in the determination of custody and visitation rights of children, incidents of violence falling within the scope of this Convention are taken into account.

2. Parties shall take the necessary legislative or other measures to ensure that the exercise of custody or visitation rights does not jeopardise the rights and safety of the victim or children.”

Article 31 imposes several key obligations:

Mandatory risk assessment for domestic violence in custody proceedings, conducted by both civil and criminal courts.
Violence must be treated as a central—rather than marginal—factor in custody decisions. Shared custody cannot be presumed as the standard solution when a context of abuse exists.
A redefinition of the best interests of the child, prioritizing protection and safety over the mere preservation of a relationship with both parents when one is abusive. Witnessed violence is recognized as a form of maltreatment.
Effective coordination between civil and criminal courts, in line with the principle of due diligence, preventing the separation of proceedings that may compromise safety.

The “Protective Paradox” in the Italian Legal System

Italy ratified the Convention through Law No. 77 of 27 June 2013, which makes its provisions legally binding. This law requires judges and legislators to apply Article 31 by mandating an obligatory assessment of domestic violence in custody and visitation proceedings.

In practical terms, this regulatory framework provides that:

In cases of confirmed violence, custody should preferably be granted to the non-abusive parent—often the mother—excluding the abusive parent.
Visitation rights of the abusive parent must be regulated to ensure the safety of the victim and the children, through supervised or protected meetings.
In situations of serious risk, visitation rights may be suspended or denied.
Civil and criminal files must be communicated and coordinated to enable informed and protective decisions.

Despite this advanced legal framework, GREVIO reports and several analyses point to significant difficulties in Italy’s correct implementation. Law 54/2006 on shared custody is often applied automatically, without adequate consideration of violence and victim safety, thus perpetuating the so-called “protective paradox.”

Conclusions

Article 31 of the Istanbul Convention is not a mere legal provision, but an ethical beacon that calls for a clear and uncompromising choice: in decisions regarding custody and visitation, the physical and psychological safety of victims—women and children—must be the guiding principle. Although Italy has formally incorporated these obligations through Law 77/2013, the gap between formal adherence and actual implementation remains significant, fueling a dangerous “protective paradox.”

It is precisely in this gap that a silent tragedy unfolds. While courts debate “measures” and “visitation rights,” for a child those abstract words take on the concrete form of a traumatic memory: the smell of fear seeping under the bedroom door; the deafening sound of a raised voice; the muffled crying of a mother; the sudden shattering of an object followed by a heavy silence. These are the ghosts that inhabit their memory. And that same door, today, must not be turned by justice into the passage through which those ghosts might return. No ruling should ever force a child to relive, in the name of the law, the nightmare they have only just begun to leave behind.

In this context, the automatic application of shared custody in the presence of domestic violence risks betraying its protective mission. It can, in fact, become a tool of indirect persecution—a legal loophole that allows the abusive parent to maintain control over the life of the former partner, perpetuating a cycle of abuse through the very mechanisms that should instead guarantee the child’s well-being.

Ensuring genuine—not merely formal—protection means recognizing that the supreme task of justice in these delicate matters is not merely to resolve conflicts, but to safeguard the child’s right to safety and resilience. Translating the Convention’s requirements into courageous practices means turning that bedroom door into a truly inviolable boundary, building without hesitation a future in which the best interests of the child coincide with their inalienable right to grow free from the shadow of violence—and in which a mother may find freedom not only de iure, but de facto.

REFERENCES

Council of Europe. (2011). Council of Europe Convention on preventing and combating violence against women and domestic violence. Istanbul.
GREVIO. (2020). Baseline Evaluation Report on Italy. Group of Experts on Action against Violence against Women and Domestic Violence.
GREVIO. (2022). Evaluation Report on the Implementation of the Istanbul Convention in Italy. Group of Experts on Action against Violence against Women and Domestic Violence.
ISTAT. (2015). Violence against women inside and outside the family. Italian National Institute of Statistics.
Law No. 77 of 27 June 2013. Ratification and implementation of the Council of Europe Convention on preventing and combating violence against women and domestic violence.
Law No. 69 of 19 July 2019. Introduction of the “Red Code”.
Romito, P. (2021). Gender Violence Against Women and Children. FrancoAngeli.
Saccucci, C. (2020). The Istanbul Convention: Article-by-Article Commentary. Editoriale Scientifica.