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’.
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”.
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.
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