Cross-border disputes regarding the custody of minor children in the EU

As lawyers specializing in family law (we’re sometimes called “custody lawyers”), we know that during the divorce or separation process, much to our dismay, children are the ones who suffer most from disputes that arise between parents, and tend to be the ones who pay the price for their parents’ disagreements. In many instances, member states don’t cooperate, and don’t give priority to the minor’s interests in legal proceedings dealing with parental custody (joint custody, guardianship, etc.). For this reason, we believe that it should be one of the top priorities of every member state to ensure and defend the fundamental rights of minors during legal proceedings.

There are various child protection regulations designed to safeguard the child’s best interests. At the international level, it is the 1996 Hague Convention which regulates matters of parental responsibility and includes numerous measures for the protection of children. In Europe, such matters are addressed by the Brussels II bis Regulation, which covers all aspects concerning minors. Furthermore, there are cooperation mechanisms between the various countries thanks to the signature of multilateral international conventions such as the 1980 Luxembourg Convention. This agreement was made within the framework of the Council of Europe and regulates the recognition and enforcement of legal decisions concerning the custody of children, as well as the restoration of said custody.

However, in the context of child protection, experience has shown that existing regulations aren’t sufficient to address situations that arise on behalf of the often invoked best interests of the child. The European Parliament recently approved a non-binding resolution to encourage cooperation between member states in legal proceedings on parental custody. In the text, the European Parliament attempts to address the failures of European legislation on family law in view of its upcoming review. “There is a need for more cooperation in family matters with cross-border aspects. Our aim is not to impose a single vision of how to handle family conflicts or deal with child welfare issues, but to ensure that the freedom of persons within the Union works in practice, also when it is related to family matters,” said Cecilia Wikström, Swedish MEP and chair of the European Parliament’s Petitions Committee.

Defending children’s rights in legal proceedings

One of the measures proposed by the European Parliament is that countries establish specialized chambers within the family courts or mediation bodies with the aim of processing those transnational disputes involving children more quickly. These cases range from the compulsory transfer of children to another EU country, to abduction by one of the parents and custody disputes between nationals of different member states.

MEPs recommend that member states improve their legal cooperation and call on the European Commission to provide clear information to citizens regarding parental custody disputes (for example, on parental rights in the various countries).

In addition, they emphasize that children involved in cross-border disputes border have the right to maintain regular and direct contact with their parents, unless it could prove harmful to them. To this end, member states should ensure that both parents have the opportunity to have regular visits while the proceedings concerning such cases are in progress, and that they can use their native language during said visits. It is, therefore, everyone’s responsibility to ensure and defend the child’s best interests, whatever the situation; at least we do at ICN LEGAL.

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