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Parental responsibility - Community law

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Cooperation for the protection of children in the European Union

The goal of the European Union is to create a secure legal environment for children by ensuring the free circulation of judgments on parental responsibility within the European Union. This goal is set out in the Programme for mutual recognition of judgments. The first step towards the mutual recognition of judgments in the family law area was Council Regulation 1347/2000 which layed down harmonised rules on the jurisdiction and recognition and enforcement of certain judgments on parental responsibility. Since then, following a proposal from the Commission, a new step has been be taken by the adoption of a Council Regulation 2201/2003 which replaces Council Regulation 1347/2000 as of 1 March 2005. A Practice Guide PDF 652 KB (PDF 652 KB) is available for the application of Council Regulation (EC) No. 2201/2003 ("the new Brussels II Regulation"), which entered into application on 1 March 2005. The Practice Guide has been drawn up by the Commission services in consultation with the European Judicial Network in civil and commercial matters.

As citizens increasingly move from one Member State to another, there is an increasing number of cases where family members are not of the same nationality and/or do not live in the same Member State. This social reality creates a need to lay down uniform rules on jurisdiction and recognition and enforcement of judgments on parental responsibility.

As a first step, the Council adopted Council Regulation No. 1347/2000 on 29 May 2000. The Regulation entered into force on 1st March 2001 and applied to judgments on parental responsibility that were issued in a Member State on the occasion of a divorce proceeding. If a judgment was not linked to a divorce proceeding, it was not covered by the Regulation. The Regulation applied to judgments deciding, for instance, with which parent the children should live (custody rights) and whether the other parent had the right to visit the children (access rights). (See "Parental responsibility - General Information” ). It did not apply to judgments dealing with maintenance obligations which are dealt with by a Council regulation on jurisdiction and the recognition and enforcement of judments in civil and commercial matters. Finally, the Regulation applied only to judgments that concerned children common to both spouses.

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It applied in all Member States with the exception of Denmark.

Main objectives of the new Brussels II Regulation

The Regulation ensures that a judgment on parental responsibility can be recognised and enforced in another Member State through a uniform, simple procedure. It also lays down uniform rules on jurisdiction. It gives answers to the questions:
  • in which Member State the courts are competent to decide on the divorce and the question of parental responsibility and
  • how a judgment on parental responsibility is recognised and enforced in another Member State.

Which courts are competent?

The courts are competent to rule on parental responsibility in the Member State where the child is habitually resident.

How can a judgment be recognised and enforced in another Member State?

Any interested party may request that a judgment on parental responsibility shall be recognised and enforced in another Member State.

A list PDF 175 KB (PDF 175 KB), communicated by the Member States, sets out to which court such a request shall be submitted.

The court shall declare, without delay, that the judgment is enforceable in that Member State. The court shall, however, refuse to declare the judgment enforceable if:

  • this would be manifestly contrary to public policy in that Member State,
  • the child has not been given the opportunity to be heard except in case of urgency,
  • the person claiming that the judgment infringes his or her parental responsibility has not been given an opportunity to be heard,
  • the judgment has been given in the absence of a party who has not properly received the documents in time to prepare his or her defence,
  • the judgment is irreconcilable with another judgment (under certain conditions).

A person is entitled to legal aid when applying the enforcement of a judgment if he or she was entitled to legal aid in his or her Member State of origin.

A European regime to protect children of separated couples

In 1999, the Ministers of Justice endorsed the principle of mutual recognition of judgments as the cornerstone for the creation of a genuine judicial area and identified access rights as a priority. In May 2000, Council Regulation 1347/2000 was adopted (see above). This was followed by an initiative presented by France in July 2000 on the question of access rights. In November 2000, a Programme for the mutual recognition of judgments was adopted including judgments on parental responsibility as one of its areas of action.

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

  • extends the rules on mutual recognition and enforcement of Regulation 1247/2000 to all decisions on parental responsibility,
  • ensures the right of the child to maintain contact with both parents and
  • prevents parental child abduction within the Community.

Free circulation of all judgments on parental responsibility

In order to ensure equality of treatment for all children, the scope of this regulation covers all judgments on parental responsibility concerning children of married and unmarried couples.

Ensuring the right of the child to maintain contact with both parents

The regulation ensures that a child can maintain contact with both parents after a divorce also when the parents live in different Member States. In certain cases, parents may be reluctant to let their children travel to another Member State to visit the other parent despite a judgment granting the other parent access rights. The Regulation seeks to overcome this by allowing judgments on access rights to be automatically recognised and enforced in another Member State. For example, if a mother does not allow her child to go to another Member State to visit the father in accordance with a judgment, the father can request that the judgment be enforced in the other Member State just as if it had been delivered in that Member State. An additional procedure to have the judgment declared enforceable as described above in Council Regulation No 1347/2000 is no longer necessary in that case.

Dissuading child abduction within the European Union

The regulation puts into place rules seeking to effectively solve the problem of child abduction within the Community. In order to create a dissuasive effect, it gives the courts of the Member State of the child's residence before abduction the final say. This way, parents will no longer be tempted to resort to abduction in order to bring a case before a judge of their own nationality in the hope of reversing a judgment issued in another Member State. The courts of the Member State to which the child has been abducted can decide not 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. It is however for the courts of the Member State where the child resided before the abduction to take the final decision where the child shall stay. The child and the left-behind parent shall be given an opportunity to be heard during the procedure. Central authorities will have an obligation to assist the parents who are victims of an abduction, promote mediation and support communication between courts.

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Charter of Fundamental Rights in the European Union

The right of the child to be heard is a fundamental right which is stated in Article 24 of the European Union's Charter of Fundamental rights. The views of the child shall be considered on matters which concern them in accordance with their age and maturity. It also states that the child's best interest shall be the primary consideration in all actions relating to children, whether taken by public authorities or private institutions.

Reference documents

  • Programme of measures for implementation of the principle of mutual recognition of decisions in civil and commercial matters
  • Council Regulation 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses
  • Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters
  • Proposal for a Council Regulation concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility repealing Regulation (EC) No 1347/2000 and amending Regulation (EC) No 44/2001 in matters relating to maintenance
  • Charter of Fundamental rights of the European Union
  • Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000
  • Council Regulation (EC) No 2116/2004 of 2 December 2004 amending Council Regulation (EC) No 2201/2003 concerning juridiction and the recognition of judments in matrimonial matters and the matters of parental responsibility, repeating Regulation (EC) No 1347/2000, as regards Treaties with the Holy see.
  • Practice Guide PDF 652 KB (PDF 652 KB) for the application of Council Regulation (EC) No 2201/2003
  • List PDF 175 KB (PDF 175 KB) of competent courts published in OJ C040 of 17 February 2005.

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Last update: 27-06-2006

 
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