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Nathan Lewin's Definitive Letter to the Italian Government
Mr. Giampaolo Cantini
Re: Application of the United Nations Convention on the Rights of the Child to the Ruling of the Juvenile Court of Genoa Awarding Custody of Nitzan and Danielle Dulberg to Mr. Moshe Dulberg
Dear Mr. Cantini:
First, I want to thank you for meeting with me, Ms. Alyza Lewin and Rabbi Raphael Butler on October 21, 1999, to discuss the recent ruling of the Juvenile Court of Genoa regarding the custody of Nitzan and Danielle Dulberg. We appreciate the attention you have given this matter and the promptness you have shown in responding to our concerns.
During our meeting with you, we mentioned that the decision of the Genoa court -- in particular, the custody and visitation arrangements spelled out by the court -- appear to violate the terms of the United Nations Convention on the Right of the Child. To assist the Italian government in resolving this issue, we offered to outline for you in writing the specific articles of the Convention that we believe have been violated. This letter describes those violations.
A. The Ruling of the Juvenile Court of Genoa
The Juvenile Court set forth the following custody and visitation arrangements:
The actions of the Genoa court are troubling not only because they are so severe, but also because they were imposed without the benefit of (a) a complete psychological evaluation of Mrs. Pikan-Rosenberg or her daughters and (b) the testimony of expert witnesses who could describe (in an unbiased fashion) the religious lifestyle in which Mrs. Pikan-Rosenberg had raised her daughters. In addition, despite the fact that the Nitzan and Danielle (ages 13 and 10) are clearly old enough and mature enough to express their own opinions and desires, the Court completely disregarded the girls expressed preference to live with their mother.
As described below, we believe that the order issued by the Genoa court violates the United Nations Convention on the Rights of the Child because it (a) imposes severe limitations on Nitzan and Danielles ability to meet with and communicate with their mother, other family members and friends; (b) undermines the girls cultural and religious identity; (c) infringes on the girls rights to privacy and freedom of expression; (d) disregards the expressed wishes of the children to live with their mother; and (e) fails to formally evaluate what actions are in the best interest of the children.
B. The Convention on the Rights of the Child
The Convention on the Rights of the Child (the "Convention") states, in Part I, Article 9, that "a child shall not be separated from his or her parents against [the childs] will." Article 9 also recognizes the "right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis." (Article 10 notes that even children whose parents reside in different countries "have the right to maintain on a regular basis . . . personal relations and direct contacts with both parents.") Despite these clear principles, the Genoa court has separated Mrs. Pikan-Rosenberg from her daughters against her daughters will and has denied Mrs. Pikan-Rosenberg regular, frequent contact with the girls.
Part I, Article 15 of the Convention recognizes the "rights of the child to freedom of association." The Italian courts ruling, which prohibits Nitzan and Danielle from communicating with anyone other than their mother or maternal grandparents without the fathers consent, clearly violates this clause.
In its Preamble, the Convention states that its signatories "tak[e] due account of the importance of the traditions and cultural values of each people for the protection and harmonious development of the child." The decision of the Genoa court, however, appears to contradict this basic tenet. Rather than recognize the importance of the traditions and cultural values to which Nitzan and Danielle became accustomed while living with their mother, the Italian court belittles the importance of those traditions and undermines the girls adherence to those traditions. The ruling restricts the girls access to individuals who share their traditions, while at the same time requiring the girls to be exposed to cultures and traditions that conflict with their existing religious values.
In Part I, Article 8 of the Convention, State Parties "undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations." The actions of the court in Genoa, however, appear aimed at distancing the girls from their past lifestyle. Far from preserving the girls identity, the Courts actions rupture that identity and seek to replace it with a new Italian identity.
According to Part I, Article 2 of the Convention, each State Party is prohibited from discriminating against any child on the basis of the childs or his parents religion. Article 2 also prohibits State Parties from discriminating against or punishing a child for the "activities, expressed opinions, or beliefs of the childs parents." The unusual severity of the Genoa courts opinion, however, suggests that contrary to the Conventions requirements, (a) Mrs. Pikan-Rosenberg and her children were treated more harshly because they are Orthodox Jews and (b) Mrs. Pikan-Rosenbergs children were "punished" for Mrs. Pikan-Rosenbergs unlawful actions (i.e. failing to return the children to Italy).
Part I, Article 16 of the Convention states that "No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence. . . ." By requiring that a third party be present whenever Nitzan and Danielle meet with their mother, and by allowing the girls telephone conversations with their mother to be monitored and recorded, the Genoa court has violated the girls right to privacy. Furthermore, by requiring that the girls speak to their mother in Italian, and by limiting the spectrum of people with whom the girls may be in contact, the court has interfered with the childrens "correspondence" (in violation of Article 16) and violated their right to "freedom of expression" protected by Part I, Article 13 of the Convention, which states, "The child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print . . . ."
Part I, Article 14 of the Convention protects a childs right to "freedom of thought, conscience and religion." Article 14 also requires State Parties to respect the rights and duties of the parents "to provide direction to the child in the exercise of his or her right . . . ." The actions of the Genoa court which prevent the Nitzan and Danielle from (a) practicing their religion as they choose, (b) associating with individuals who share their cultural and religious beliefs, and (c) receiving religious direction from their mother violate this clause of the Convention. According to Article 14, "freedom to manifest ones religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others." The severe restrictions imposed by the Genoa court fail to meet this high standard. Allowing Nitzan and Danielle to practice their religion as they choose, to associate with individuals who share their cultural and religious beliefs, and to receive religious direction from their mother poses no threat to "public safety, order, health or morals" or to "the fundamental rights and freedoms of others."
The Convention requires that a child be "provided the opportunity to be heard in any judicial and administrative proceedings affecting the child." (Part I, Article 12). Article 12 also states that a child "who is capable of forming his or her own views" has the right to "express those views freely in all matters affecting the child," and the childs views shall be given "due weight in accordance with the age and maturity of the child." Nitzan (age 13) and Danielle (age 10) both told the court in clear and definitive terms that they wished to live with their mother in Israel. The Genoa court, however, dismissed the girls expressed desire and determined on its own, without any proof or objective statement of opinion, that the girls stated desire was not "authentic." No neutral psychologists ever examined the girls to determine the validity of their expressed will. Absent this neutral professional analysis, it was improper for the court to ignore the girls opinion. Greater weight should have been given to the childrens expressed wish, in light of their "age and maturity."
Despite repeated requests by Mrs. Pikan Rosenberg and her attorneys, the Italian court failed to appoint a professional consultant of any kind (psychologist, psychiatrist or advisor) familiar with the background and culture of the girls to provide the court with an objective, and comprehensive statement of opinion that could assist the court in ruling on the childrens custody. The court failed to appoint a psychologist to evaluate the girls, and refused to hear from any experts who could educate the court on the nature of the Orthodox Jewish lifestyle.
Part I, Article 3 of the Convention requires that "the best interests of the child shall be a primary consideration" in all actions concerning children. The court in Genoa concluded, without any proof, that Mrs. Pikan-Rosenbergs Orthodox Jewish lifestyle was harmful to Nitzan and Danielle. Without the benefit of a professional psychological evaluation of the girls, however, it is impossible for a court to determine with any degree of certainty that the girls are better off in a non-Orthodox Italian surrounding than in an Orthodox Israeli setting. It is clear, for example, that the levels of crime, drugs, alcoholism and violence are recognizably less in a religious society than in a non-religious society. Because the Genoa court failed to appoint a professional psychologist to evaluate the girls, and because the court made a determination based on inadequate knowledge of the nature of the Orthodox Jewish lifestyle, the courts decision is flawed. The court failed to formally evaluate what actions are in the best interest of the children and, consequently, failed meet its obligation under the Convention.
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I hope this analysis will assist you in addressing this sensitive issue. Please call me at 202-833-5118 if you require any additional information or wish to discuss this further.
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