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From a terminological standpoint, in the Grand Duchy of Luxembourg the term “parental authority” is used in preference to “parental responsibility”. This concept encompasses all the rights and obligations assigned by the law to parents in respect of the person and property of the minor children under their care for the fulfilment of their duties with regard to protection, education and maintenance.
Parents have parental authority to protect the child in terms of security, health and morality. They have the right and duty of custody, supervision and education. Parental authority is not an absolute and discretionary right of a parent. Parental authority must be exercised in the interest of the child.
During the marriage, the general rule is that the father and mother exercise parental authority jointly. If the parents are not married, in principle the mother exercises parental authority.
In the event of the death of the parents or if the parents are unable to take care of their children, a guardian must be appointed. The last surviving parent may choose the guardian. If a guardian is not chosen, the family council or, in its absence, the guardianship judge appoints a guardian.
In the event of divorce by mutual consent, the parents can decide by joint agreement to exercise joint custody. For all other forms of divorce, parental authority is exercised by the parent to whom the court has awarded custody.
Except in exceptional and serious circumstances, the Luxembourg courts often award custody to the mother, especially if the child is very young. The parent who does not have custody has visiting and supervision rights.
If the custody has been awarded to a third party, the other attributes of parental authority continue to be exercised by the father and mother. However, if the court appoints a third party as temporary guardian, it can decide that this third party must request that a guardian be appointed.
Any agreement by the parents on matters relating to parental authority is legally binding only if the competent court approves.
The parents can have recourse to family mediation.
The judge can decide on the following matters:
The parent who has custody has an obligation of information vis-a-vis the parent who does not have custody, which means that he/she must inform the other parent of important choices and significant events in the child’s life. While the parent who does not have custody has a certain right of supervision of the child’s maintenance and education, this does not entitle the holder to be informed of every detail of the child’s life.
If the parent who does not have custody believes that the parent who has custody is using the right of custody against the interest of the child, he/she can refer the case to the competent court to settle the dispute. In this case, the court can order a change of custody or impose on the parent who has custody certain conditions relating to the child’s education.
It is accepted that when parental authority is exercised jointly by two parents who live apart, this presupposes that there must be a broad understanding and consensus to ensure continuous and constructive cooperation in decisions concerning the child’s custody, supervision and education.
The guardianship judge has jurisdiction either if the father and mother cannot reach an agreement on the interest of the child or if, within the framework of the simple and straightforward arrangements for legal administration, the two legal administrators who are expected to work together cannot reach an agreement.
In divorce or legal separation proceedings, in principle the judge in chambers has exclusive jurisdiction to decide on the temporary custody of the child. However, the measures that he orders can be changed by the judge of the juvenile court if the child’s physical or mental health or his/her education or social or moral development are jeopardised. In the event of a divorce or legal separation, the court that grants the divorce or legal separation decides at the same time on the question of parental authority. Following the divorce or legal separation, the juvenile court can determine, change or supplement the right of custody.
Applications for total or partial delegation of parental authority should be brought before the district court of the domicile or habitual residence of the child if he/she is under age. The court takes all the useful information measures and notably an examination of the personality of the minor child, in particular by means of a social investigation, medical, psychiatric and psychological examinations, an observation of the child’s behaviour or a vocational guidance examination. He interviews the parents or the guardian and the person who has taken the child into their care. Finally, he can order any temporary measure that he deems useful for the child’s custody and education.
Finally, applications for total or partial deprivation of parental authority are brought by the public prosecutor’s office before the district court sitting in civil proceedings of the domicile or residence of the father or of the mother. If the father or mother have no known domicile or residence in the country, the action is brought before the court of the district in which the children reside. If the children are not all in the same district, the action is brought before the district court of Luxembourg. The public prosecutor orders an investigation into the situation of the family of the minor child and the morality of his/her parents. They are ordered to submit to the court any remarks and objections that they deem appropriate. In any case, the court can, of its own motion or at the request of the parties, take any temporary measures that it deems useful for the custody of the child. Also, the court can in any case revoke or modify these measures.
The action before the judge of guardianship is brought at the request of either the father or the mother. The parties are exempted from the need to go through a lawyer.
As regards requests relating to parental authority within the framework of divorce proceedings or legal separation, we refer to point 11 of “Divorce - Luxembourg”.
Following a divorce or legal separation, the juvenile court can be applied to at the request of either of the parents or of the public prosecutor. The request is submitted in four copies on ordinary paper to the clerk of the juvenile court of the district in which the child has his/her domicile or habitual residence. In addition to the facts on which the request is based, the request should give the surnames, first names, profession and domicile of the parties. To be valid, it should mention the election of domicile in the Grand Duchy of any applicant who does not reside there. The parties are exempted from the need to go through a lawyer.
Applications for delegation of parental authority should be brought in the form of a request. The parties are exempted from the need to go through a lawyer. The request can be submitted to the public prosecutor who applies to the court. If the father, mother or guardian wishes to recover the rights which they have delegated, they must submit a request to the court of the domicile or habitual residence of the party to whom such rights have been awarded.
Finally, applications for total or partial deprivation of parental authority are brought in the form of a request stating the facts and accompanied by supporting evidence. The clerk of the court notifies the request and convenes the parents or ascendants against whom the action is brought. The parties are exempted from the need to go through a lawyer. If the father, mother or guardian wishes to recover the rights which have been withdrawn from them, they must submit a request to the court of the domicile or habitual residence of the party to whom such rights have been awarded.
Persons whose income is considered to be insufficient according to Luxembourg law can receive legal aid. To receive this aid, they must fill in a questionnaire that can be obtained from the central social work department and send it to the territorially competent president of the bar association, who will take the decision.
Legal aid covers all the costs relating to the court proceedings, procedures or actions for which it is granted. It covers, for example, stamp duties and registration costs, clerks’ fees, lawyers’ fees, bailiffs’ duties and fees, notaries’ expenses and fees, technicians’ expenses and fees, witness taxes, fees of translators and interpreters, fees for certificats de coutume, travelling expenses, duties and fees relating to formalities for registration, mortgage and encumbrance and where necessary costs for publication in newspapers.
It is possible to appeal against a decision on parental authority before the court of appeal (civil chamber). In principle, the period for the appeal is forty days. However, the period of appeal against a decision by a judge in chambers is fifteen days.
Luxembourg law provides for two ways to enforce a decision concerning parental authority in the event of systematic refusal to comply.
Firstly, there is a civil penalty, i.e. an astreinte (periodic penalty payment) whereby the party concerned must pay a sum of money for each day, week or month of delay. This is ordered by a court against the recalcitrant parent to force him/her to meet his/her obligation in kind. The action takes the form of a summons to appear before the district court of the child’s place of residence. The parties must go through a lawyer.
Secondly, there are criminal-law penalties. Failure to represent a child is punishable by a custodial sentence of between eight days and two years and/or a fine of 251 to 2,000 euros. If the party found to be at fault has totally or partially forfeited parental authority over the child, the custodial sentence can be increased to three years. The public prosecutor’s office can hear the case either of its own motion or be applied to by the victim by means of a criminal action. The district court, sitting in correctional proceedings, fixes the criminal-law penalties and, where appropriate, the damages to be awarded to the victim. The parties are exempted from the need to go through a lawyer.
Pursuant to Council Regulation (EC) No. 2201/2003 of 27 November 2003 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses, a decision on parental authority given by the court of another country of the European Union is recognised ipso jure in the Grand Duchy. In other words, recognition of such decisions is not subject to any procedure.
However, a judgment given by a court of another country of the European Union on the exercise of parental authority in respect of a child of both parties which is enforceable and has been served or notified is enforced in the Grand Duchy after it has been declared enforceable on the application of any interested party. The request for the declaration of enforceability must be submitted to the president of the district court through a lawyer. The decision of the president of the district court may be appealed against before the court of appeal. An appeal in cassation against the decision of the court of appeal may be brought before the court of cassation.
Pursuant to the “Brussels II Regulation”, any interested party can apply to the president of the district court to hand down a non-recognition decision relating to parental authority issued by a court in another country of the European Union. This party must go through a lawyer.
The request may be dismissed only on the following grounds:
Either party may appeal before the court of appeal against the decision of the president of the district court. An appeal in cassation against the decision of the court of appeal may be brought before the court of cassation.
Pursuant to article 15 of the aforementioned Convention, Luxembourg reserves the competence of its authorities called upon to decide on a request for an annulment, dissolution or loosening of the matrimonial ties between the parents of a minor child to take measures to protect their person or property. However, the authorities of other contracting countries are not under an obligation to recognise such measures.
Following the divorce of the parents, it is generally admitted by jurisprudence that the law applicable to the divorce applies, i.e.:
In any case, the lex forem, i.e. Luxembourg law, is concurrently competent as the law governing mandatory rules and public order.
Last update: 04-07-2006