Adozione del convivente e diritto positivo: un matrimonio impossibile

Di Giampaolo Miotto -

This sentence (Juvenile Court of Milan, n. 268/2016) challenges the interpretation of article 44, letter d), law n. 184/183, given by the Civil Supreme Court of Cassation (sentence n. 12962/2016), according to which the adoption in “special cases” concerns also those underage people who cannot be placed in foster care before the adoption. The Court of Milan does not agree with the Supreme Court about this broad critical interpretation of the legislative rule: according to the territorial judge, indeed, this regulation should be applied just in cases where the adoption has not been possible, in spite of the suitability of the underage person. This opinion can be shared because of both the logical interpretation of the rules set by article 44, considered as a whole, and their literally and systematic interpretation. Moreover, the juridical notion of “impossibility provided for by law”, used by Supreme Court in order to argue the aforementioned decision, seems to be intimately irrational and may also produce some paradoxes.