Contact (law) - Parental Responsibility in EU Law

Parental Responsibility in EU Law

The European Union has set up machinery for the mutual recognition of Family Law judgments through Council Regulation 2201/2003 which continues the harmonisation of the rules on jurisdiction and on the recognition and enforcement of all judgments on parental responsibility. The intention is to ensure that parental responsibility orders can be recognised and enforced through a uniform procedure. The courts in the Member State where the child is habitually resident have the primary jurisdiction to rule on parental responsibility. The courts in the other Member States shall enforce those judgments unless:

• this infringes public policy in the given Member State – an extremely unlikely eventuality;
• the child has not been given the opportunity to be heard except in cases of genuine urgency (in all cases, the fundamental right of every child to be heard and for his or her views to be given due weight in accordance with their age and maturity, is provided in Article 24 Charter of Fundamental Rights of the European Union which also states that the child's best interest shall be the primary consideration in all cases affecting their interests, whether initiated by public authorities or private institutions);
• the person claiming that the judgment infringes his or her rights of parental responsibility has not been given an opportunity to be heard, or was not allowed a reasonable time to prepare his or her defence (see natural justice); and
• the judgment is irreconcilable with a second subsisting judgment (under certain conditions).

Following a proposal from the Commission in May 2002, a regulation on parental responsibility which was adopted on 27 November 2003 and applies from the 1st March 2005:

• ensures the right of the child to maintain contact with both parents even when the parents live in different Member States by allowing automatic recognition and enforcement of judgments on access rights, and
• seeks to prevent parental child abduction within the Community. The courts of the Member State of the child's residence before abduction always have the jurisdiction. Some parents have abducted children to their own states in the hope of receiving more favourable treatment. The courts of the abducting parent's nationality can only refuse to return the child immediately if this is necessary:

either because there is a grave risk that the child would be in danger if he or she returned, or

if the child has attained a certain age and maturity and does not want to return.

But the court in the state where the child resided before the abduction takes the final decision as to where the child shall stay, and such decisions must be respected in the state of current residence.