The separation of parents is always a complicated and sensitive issue for the ex-partners and the child(ren). Citizens recurrently turn to the European Parliament asking for help in cases of alleged discrimination on grounds of nationality regarding parental authority or in cases of possible parental child abduction.
The number of bi-national marriages in the EU is constantly growing. When such a marriage breaks down the ex-partners often decide to return to their respective country of origin. If a couple has a child the situation can become very complicated. Frequently, once parents have separated, the parent who does not have custody of the child(ren) abducts them or refuses to send them back following an access visit. Another scenario is even more common: children are removed or retained by their primary carer, but without the permission of the other parent. This is in breach of the legal rights of the other parent and often leads to court proceedings.
Mediator for International Parental Child Abduction
The European Parliament has established the Office of the Mediator for International Parental Child Abduction, whose role is to assist in trying to find a voluntary agreement between the parent who abducted the child and the other parent, keeping in mind primarily the interest of the child or children. Indeed, under Article 24 of the Charter of Fundamental Rights of the European Union, ‘Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity’.
Petitions
European Parliament’s Committee on Petitions (PETI) has, for many years, been receiving petitions on alleged discrimination on grounds of nationality regarding parental authority over children born to spouses of different nationalities, notably concerning Germany’s youth welfare offices (Jugendamt). There have also been cases recently concerning matters in Denmark, and also in France, the UK and other EU countries.
The committee, in its Explanatory Statement for a European Parliament resolution on the activities of the Committee on Petitions 2013 (2014/2008 (INI)), stated “that it cannot resolve such petitions individually except by referral to the authorities of the Member States concerned for a series of reasons, e.g. the Committee cannot over-rule decisions, taken by local courts because of questions of competence and the separation of power”.
EU Regulation
The granting of custody rights or visiting rights in respect of children born to married or unmarried couples and the arrangements for their exercise are governed not by EU law, but by national law.
However, there are clear rules on cross-border parental child abduction within the EU as well as on the recognition and enforcement in another Member State of decisions in matters of parental responsibility, which can be found in Regulation (EC) No 2201/2003 (‘the Brussels IIa Regulation’).
The regulation has applied since 1 March 2005 in all EU countries except Denmark. Denmark did use its exemption clause (‘opt-out’) regarding the cooperation on justice and home affairs and decided not to participate in the adoption of this regulation. Therefore, it is not bound by it, nor subject to its application.
The European Commission has recently launched a review of the functioning of the Brussels IIa Regulation. To this end, it published on 15 April 2014 a report on its application which highlights legal problems that international couples (spouses from different nationalities) face across Europe when they try to resolve cross-border disputes concerning their marriage or the custody of their children.
The European Parliamentary Research Service (EPRS) published on 28 May 2014 a briefing on “international parental child abduction“, including links to analysis and case law.
The European Commission website provides further information on Protecting children’s rights and Divorce and legal separation.
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The term “habitual residence” is used to define international jurisdiction,, see Borras report and “the best interest of the child always come first:…”, page 1307, Jurisprudence, 2013, by Koen Lenaert, Judge, CJEU.
Although the BIIR in principle regulates divorce and PR matters in cross border disputes between Member States, contains two articles that extend its scope in third states. Articles 7 & 14 could deal for disputes between a multinational European couple who live in a third state, e.g. the Saudi Arabia or the UAE. In these countries custody of the children is awarded by de facto and without trial, to the father in the former, to the mother in the later. Thus article 14 of BIIR enables a European parent to bring the case to the courts of his native MS. In a such a case the term “habitual residence” must be replace with the equivalent one, the “court that has international jurisdiction”.
The definition of “wrongful removal of a child”.
The Court systematical defines as wrongful the removal of a child from one MS to another MS, see C‐400/10. This narrow, however, definition, excludes from the “wrongful” characterization the removal of a child from a MS and taken a third state, e.g. a non signatory of the Hague Conventions. In my view the removal of the child from the residence by a parent, without the consent of the other, constitutes a violation of the right of custody of the non‐consenting parent and therefore is illegal (breach of article 2.9) . Namely, the act of arbitrarily acting parent violates the right of the non‐consenting parent to decide on the place of residence of his child.
Many thanks for these additional explanations, Konstantinos Giannopoulos, professor of finance.
Many thanks for reading carefully the post, Jeanette BELL. We corrected the unfortunate expression.
Good Morning,
I thought you may like to know that the third sentence, “… If a couple has a common child…” ought to read, “…if a couple has a child in common….” as the meaning is totally different.
http://www.definitions.net/definition/common
* Syn: common , ordinary , vulgar refer, often with derogatory connotations, to what is usual or most often experienced. common applies to what is widespread or unexceptional; it often suggests inferiority or coarseness: common servants; common cloth. ordinary refers to what is to be expected in the usual order of things; it suggests being average or below average: a high price for something of such ordinary quality. vulgar means belonging to the people or characteristic of common people; it suggests low taste, coarseness, or ill breeding: vulgar manners; vulgar speech. See also general.
Best regards,
Jeanette BELL
EUROPEAN PARLIAMENT
Directorate for Relations with National Parliaments
Institutional Cooperation Unit
WIE 5/U/27
+32 2 2842269
Good Morning,
I thought you may like to know that the third sentence, “… If a couple has a common child…” ought to read, “…if a couple has a child in common….” as the meaning is totally different.
Best regards,
Jeanette BELL
EUROPEAN PARLIAMENT
Directorate for Relations with National Parliaments
Institutional Cooperation Unit
WIE 5/U/27
+32 2 2842269