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Extended effects tutorial 5
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Parental responsibility and intercountrycontact/access arrangements
In this session, we consider the acquisition of parental responsibility, the contact/access
rights between parents and children by reference to a case study. We identify legal issues in
cross-border family law cases which fall within the scope of Brussels IIbis and Hague Child
Protection Convention and demonstrate familiarity with the terminology of the legislation and
its role in preventing and resolving disputes.
Tutorial notes
Brussel IIbis tells nothing about applicable law. So it can only prevail with jurisdiction and
applicable law.
Applicable law;
- art. 15 Hague 1996: lazy article
- art. 16 Hague 1996: Also lazy: if you got jurisdiction solely on the habitual residence
of the child then the applicable law is also the habitual residence of the child.
→ reason why they pick a court that deals with questions on children to
use their own legal system as a default is that they are experts in their
own law and the child lives there and is under that law.
You see this in art. 16(2) en 16(3) moving the child does not do a lot.
The habitual residence of the child is the locus. This is mostly the habitual residence
of the parents. As a child you have no soeverein friends or property. Your habitual
residence is linear to your parents. You get more autonomous as you age. Reasons
why it is the child’s habitual residence and not the parent although it has a strong
connection
- you have two parents
- the child is the centered in the instrument
- bottom up perspective
- The child is the most vocal in a procedure and this is to remind the judge
about this. Powerful message to the judge
- Also a powerful message to the parents. You can not just take your child with
you. The child has to have their own habitual residence, so connection.
Remind the parents that the children are the most important
(Book: the Children Act 1989. And film.)
General rule on child abduction that the child needs to be returned to the State that the child
abducted from. It is barred that the child needs to go back but there a procedure can show
that the best interest is another state.
Habitual residence will stay difficult. The outcome can even be that someone loves a house
more in that country than another. It is very thin.
Case law on habitual residence favors the wealthy because they have property
everywhere.
, In family law we have three routes;
1. Procedural
→ answers which court, which law and recognition
2. International substantive
→ from the human rights perspective (HR)
→ cases about identity, if you are a partner or spouse or parent or not
→ private and family life, art. 8 ECHR
→ they are not about wherever you can live together as partners or
parents. This is usually a question a state has. So it is about whether the
state should sanction even though the domestic law says yes, that it is not
possible.
→ you can do what you want in case of a term or something that
you don’t want to use in case that there is consensus if you can sanction it. So
for example same sex marriage sanction but other options.
States agree to be part of the EU and not to a same sex bond. You join a club like
minded countries. so in term you have to be like minded. If you don’t like The CUE says that
you are like minded and otherwise you need to step out. How to establish if there is
consensus? We use the territory in this. Always think about the political background on
CJEU case law because they are politicians.
3. national domestic
→ we don’t look at this course. So only route 1 and 2
Materials
● J. M. Scherpe, European Family Law Volume III, Chapter
8
Parental responsibility = a set of powers, rights and duties with regards to children that the
law allocates to parents or to third persons. The HCPC 1996 defines the term ‘parental
responsibility’ as including ‘parental authority, or any analogous relationship of authority
determining the rights, powers and responsibilities of parents, guardians or other legal
representatives in relation to the person or the property of the child’ (article 1(2)). Parental
responsibility include;
- the right to determine to child’s residence
- the right to maintain personal relationships with the child where appropriate
- all other functions of any person or institution aimed at taking care of the child’s
person or property.
Nowadays it is generally agreed that the primary responsibility for caring for and bringing up
children falls equally on both parents. Article 18 of the UNCRC. The consensus around this
idea, however, does not translate into the unconditional automatic attribution of parental
responsibility to both parents as soon as paternity and maternity have been legally
established. Two broad types of legal systems in this context;
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