On 7 December 2022, the Commission adopted a proposal for a Council Regulation on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and on the creation of a European Certificate of Parenthood.
In her 2020 State of the Union speech, Commission President von der Leyen referred to the need to ensure that the parenthood established in a Member State is recognised in all other Member States.
In accordance with this political commitment, the Commission adopted a proposal for a regulation harmonising the rules of private international law in the field of parenthood. The objective of the proposal is to facilitate the recognition in a Member State of the parenthood established in another Member State.
The need to ensure the recognition of parenthood between Member States is important because citizens increasingly find themselves in cross-border situations, for example where they have family members in another Member State, travel within the EU, move to another Member State to find a job or start a family, or buy property in another Member State. However, an estimated 2 million children may currently face difficulties in having their parenthood recognised in another Member State for all purposes, including when they move to another Member State or return to their Member State of origin.
Under EU law, Member States must already recognise parenthood as established in another Member State for the purposes of rights derived from EU law, in particular from EU law on free movement, such as the right of entry and residence in another Member State, the right to equal treatment and the right to obtain travel documentation for the child.
However, EU law does not yet require the recognition of parenthood as established in another Member State for the purposes of the rights that the child derives from national law, such as succession and maintenance rights.
The non-recognition of parenthood can have significant adverse consequences for children:
- the fundamental rights of children, such as their right to an identity, to non-discrimination and to a private and family life, may be hampered;
- children can lose their rights to succession or maintenance in another Member State;
- children can lose their right to have one of their parents act as their legal representative in another Member State on matters such as medical treatments or schooling.
These difficulties may lead families to embark on legal proceedings to have the parenthood of their child recognised in another Member State, but these proceedings have uncertain results and involve significant costs, time and burden for both families and the Member States’ judicial systems.
Ultimately, the non-recognition of parenthood deters families from exercising their right to free movement for fear that the parenthood of their child will not be recognised in another Member State for all purposes.
Objectives of the proposal
The proposal aims to:
- strengthen the protection of the rights of children in cross-border situations within the EU, including their right to an identity, to non-discrimination, and to respect for a private and family life, as well as their right to succession and maintenance in another Member State;
- provide legal certainty and continuity of the parenthood of children; and
- reduce the costs borne by families and national judicial systems in connection with proceedings for the recognition of parenthood in another Member State.
The proposal has the best interests of the child as its primary consideration. Under international law and EU law, all children have the same rights, so the proposal covers the recognition of the parenthood of all children, irrespective of how they were conceived or born, and irrespective of their type of family.
The Council conclusions on the EU Strategy on the rights of the child equally underline that children’s rights are universal, that every child enjoys the same rights without discrimination of any kind and that the best interests of the child must be a primary consideration in all actions relating to children, whether taken by public authorities or by private institutions.
The proposal therefore includes the recognition of the parenthood of children with two same-sex parents and children adopted domestically in a Member State by one or two parents.
A domestic adoption in a Member State is an adoption in which the child and the adoptive parent or parents have the habitual residence in the same Member State. The proposal does not cover intercountry (or international) adoption, that is, an adoption in which the child and the adoptive parent or parents do not have the habitual residence in the same country, as such adoption is already covered by the 1993 Hague Convention on Intercountry Adoption.
It should be noted that the case law of the European Court of Fundamental Rights already requires States within its jurisdiction (that is, including the EU Member States) to recognise the parenthood established abroad between a child born out of surrogacy and the biological parent, and to provide for a mechanism for the recognition of the parenthood between that child and the non-biological parent, for example through the adoption of the child by the non-biological parent (see, for example, Mennesson v. France, decision of 26 June 2014, and Advisory Opinion P16-2018-001 of 10 April 2019).
The proposal applies irrespective of the nationality of the child and of the nationality of the child’s parents.
However, in line with existing EU law, the proposal only requires the recognition of the parenthood of the child when that parenthood has been established in another Member State, as typically proved by a document issued by the authorities of a Member State (for example, a birth certificate, a court decision, a notarial act or a decision by an administrative authority). The recognition of the parenthood established in a non-EU country, as typically proved by a document issued by the authorities of the non-EU country, will remain governed by the national law of each Member State.
The Commission proposal was identified as a key action in the EU Strategy on the rights of the child and in the EU LGBTIQ Equality Strategy . The European Parliament welcomed the Commission’s initiative in its Resolution on the protection of the rights of the child in civil, administrative and family law proceedings and in its Resolution on LGBTIQ rights in the EU.
How will the proposal facilitate the recognition of parenthood?
The reasons for the current difficulties with the recognition of parenthood between Member States are that the Member States have:
- different substantive law rules on the establishment of parenthood;
- different conflict of laws rules for the establishment of parenthood in cross-border situations; and
- different rules on the recognition of parenthood established in another Member State.
In addition, existing EU regulations on family law (in particular on parental responsibility matters and maintenance), succession and public documents do not include the recognition of parenthood in their scope.
To fill the gap in EU law and address the difficulties with the recognition in a Member State of the parenthood established in another Member State, the Commission is proposing the adoption of harmonised rules on the following:
- international jurisdiction, that is, rules determining which Member State’s courts are competent to establish parenthood in cross-border situations,
- applicable law, that is, conflict of laws rules designating the national law that should apply to the establishment of parenthood in cross-border situations, and
- the recognition of court decisions and the acceptance of authentic instruments (documents issued by a public authority or a notary) on parenthood issued in another Member State. Member States would not be able to refuse the recognition of parenthood established in another Member State by invoking public policy grounds that would lead to discrimination contrary to the EU Charter on Fundamental Rights - for example, by refusing recognition merely on the ground that the parents are of the same sex.
The Commission is also proposing the creation of a European Certificate of Parenthood that children (or their legal representatives, typically their parents) can request to prove their parenthood in another Member State. The Certificate is specifically designed for use in another Member State although, once issued, it can also be used in the Member State of issuance. Its use would be optional for children and their families and it would not replace equivalent national documents providing evidence of parenthood (such as a birth certificate). However, the use of the Certificate would have advantages as it would have identical contents and effects irrespective of the Member State of issuance and would be issued in a uniform form existing in all EU official languages, which would significantly reduce translation costs for families.
The introduction at EU level of uniform rules on international jurisdiction and applicable law for the establishment of parenthood in cross-border situations aims to avoid the current situations in which the authorities of different Member States may establish different parenthoods for the same child. The introduction at EU level of uniform rules on the recognition of the parenthood established in another Member State aims to facilitate the continuity of parenthood status within the EU.
The adoption of EU uniform rules on international jurisdiction and applicable law for the establishment of parenthood in cross-border situations and on the recognition of parenthood in another Member State would complement current EU legislation on family law and succession and facilitate its application, as the parenthood of a child is a preliminary question that must be resolved before applying existing EU rules on parental responsibility, maintenance and succession as regards the child.
What is the relationship between the proposal and the law of the Member States?
Under the Treaties, substantive law on family matters, including the legal status of persons, falls within the competence of Member States, which means that the establishment of the parenthood of a person in a domestic situation is governed by national law. However, the EU can adopt measures concerning family law with cross-border implications pursuant to Article 81(3) TFEU, such as measures to facilitate that, once parenthood has been established in a Member State, it is recognised in all other Member States.
The rules in the proposal are designed to harmonise the Member States’ rules on international jurisdiction, applicable law and recognition in matters concerning parenthood. However, in harmonising those rules, the proposal takes into account the characteristics of the Member States legal systems. For example, in deciding on the applicable law, the proposal takes into account the connecting factors used most frequently by the Member States (such as habitual residence, nationality and State of birth). Also, in deciding on the types of documents that should be recognised between Member States, the proposal takes into account the different systems of establishing parenthood in the Member States as well as the particularities of each Member State as regards the national competence of authorities dealing with parenthood.
In addition, the proposal does not affect the Member States’ exclusive competence to regulate matters of substantive family law. Member States will continue to decide how family should be defined, the substantive conditions and procedures to establish parenthood in domestic situations and the rights and obligations derived from parenthood. Measures proposed under Article 81(3) TFEU on family law with cross-border implications do not affect the competence of Member States to legislate on such matters.
The proposal does not cover the recognition in a Member State of marriages or registered partnerships concluded abroad.
What are the next steps?
The Member States must examine and discuss the contents of the proposal within the Council.
The proposal must be adopted under a special legislative procedure whereby the Council must act unanimously after consulting the European Parliament.