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College 5 effects
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Lecture notes of 10 pages for the course Family Law in Europe at UM (College 5 effects)
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Intercountry child abduction andcontact/access arrangements
One of the consequences of a separation is that either after or before the breakdown of the
marriage each parent chooses his or her new place of residence. In case of a transnational
relationship, where the parents are not of the same nationality, one of the parents may
decide to move with the children to the State of his or her origin. If this happens without the
consent of the other parent also possessing rights of custody the situation will be described
by the legal term parental child abduction. If this happens with the consent of the other
parent, cross-border contact arrangements will need to be agreed. In case of parental child
abduction or contact arrangements the question is which international rules apply to solve
the dispute between the parents in the best interests of the child.
Literature
J. M. Scherpe, European Family Law Volume I, Chapter 5 and
Volume III, Chapters 6 and 8.
Materials
● Regulation (EC) No 2201/2003 of 27 November 2003 (Brussels IIbis or Brussels IIa),
in particular the articles on parental responsibility
● Hague Convention on the Civil Aspects of International Child Abduction (1980; or
1980 Hague Child Abduction Convention)
● Hague Convention on Jurisdiction, Applicable Law, Recognition Enforcement and
Cooperation in respect of parental responsibility and Measures for the Protection of
Children (1996; or 1996 Hague Child Protection Convention)
Questions
1. What are the approaches to cross-border child protection?
2. What rules apply in cases of intercountry child abduction?
How can intercountry abduction be deterred?
3. What rules apply in cases of intercountry child abduction?
, Slides
Objectives of this lecture – main topics
1) Different approaches to cross-border child protection
2) Legal framework against inter-country abduction
3) Legal framework for cross-border contact arrangements
Most legal systems have a child centered approach.
Different approaches to cross-border child protection
First proposition
According to Rob George, the welfare approach traditionally followed by the
English courts in child protection cases is compatible with the human rights
approach enshrined by Art. 8 ECHR (and caselaw).
→ Read the text of Michael Greggs 32 pages under week 4!
Second proposition
According to the paper by J. Ferrer-Riba, “parental responsibility” may relate to
other people than the “parents”. The reference to “responsibility” is also
misleading in view of the prevailing child-centered approach.
→ Read the paper of Ferrer-Riba!
→ This concept of parental responsibility is a little misleading. Responsibility is
also not adequate because human rights lead to it. We actually want to achieve
in the application a prevailing child centered approach, so responsibility is
limited. Child centered is crucial looking at human rights.
An illustration of different approaches to cross-border child protection
- Ms Gogova and Mr Iliev have a child aged 10 but their relationship ended. They are
all Bulgarian and all reside in Italy
- Ms Gogova wished to renew her child’s passport
- Under Bulgarian law (=because who is a national of Bulgaria and who is entitled to a
passport), decisions on travel by a minor child and obtaining a passport in the child’s
name are to be taken by common agreement of the parents. In addition, an
application for a passport for such a child just be made by both parents together to
the competent authorities
- As Mr Iliev did not cooperate with Mis Gogova in obtaining a new passport for their
child, she made an application to the Bulgarian court to request a court authorization
(instead of father’s consent).
- Father does not want to because if the child has a Bulgarian passport he
feared that the mother will travel with the child to Bulgaria while he lives in
Italy
- Primary caretaker is most common, the mother.
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