Mutual recognition of parenthood across the EU could prevent statelessness

Current landscape

Currently the EU provides that parenthood established in a Member State should be recognised in all the other Member States, for the purpose of access to the national territory, right of residence and non-discrimination. However, in domestic law within Member States there are gaps in providing these parental rights. In practice, family ties established in one Member State are not guaranteed in another Member State. This means a child could ‘lose’ one parent, or even both, when crossing a border in the EU, restricting their freedom of movement. The non-recognition of one or both parents by a Member State is against the child’s best interests and can result in a plethora of issues, such as children having difficulty crossing borders or issues with succession rights. In some cases, parents are not able to act as their child’s legal representative when taking decisions on medical treatment and education. And in the worst cases, children in these situations become at risk of statelessness, particularly in countries which don’t recognise same-sex marriage or partnerships and refuse to issue a birth certificate to the child with the names of both parents.

When a family is composed in one Member State, it should be able to move freely within the EU, this should be for all types of families (including civil partnership and marriage) and in relation to all types of parenthood (including adoptive and foster care).

CJEU Case C-490/20 - Stolichna obshtina, rayon "Pancharevo"

In 2019, Sara was born in Spain, the daughter of two mothers from Bulgaria and Gibraltar. Under current Spanish law, Sara could not acquire Spanish citizenship because neither mother is a Spanish citizen. The child was also denied British citizenship because her mother was born in Gibraltar of British descent, and under the British Nationality Act (1981) cannot transfer citizenship to her daughter.

Therefore, the Bulgarian mother requested Bulgarian citizenship for their daughter. The Bulgarian authorities rejected a request for citizenship of the child arguing that a child cannot have two mothers, and refused to issue a birth certificate in which the parents are two persons of the same sex. Sara was therefore deprived of Bulgarian nationality, and by extension, of EU citizenship and became at risk of statelessness. She had no personal identification documents and could not leave Spain, the family’s country of residence. This lack of documents restricted Sara’s access to education, healthcare, and social security in Spain.

On 14 December 2021, the Court of Justice of the European Union (CJEU) ruled that it is contrary to the fundamental rights guaranteed by Articles 7 and 24 of the EU’s Charter of Fundamental Rights for the child to be deprived of the relationship with one of her parents when exercising her right of free movement, and even more so on the ground that her parents are of the same sex. In order to guarantee the child’s right to freedom of movement, the ruling confirmed that if one EU Member State recognises a parental relationship between a child and its parents, then all Member States should. ENS has also reported other similar cases across Europe.

The European Commission’s proposal

While the CJEU ruling in Sara’s case establishes that parenthood should be recognised across the EU to ensure the child’s access to rights derived from EU law, it did not resolve the issue of rights derived from national law. The European Commission’s proposed regulation aims to cover those remaining gaps, notably on succession, maintenance, custody or the right of parents to act as the legal representatives of the child.

The European Commission’s proposal advances the following key elements:

• The Commission proposes to recognise a child’s parental ties regardless of how the child was conceived or born, or the nationality of the child or its parents.
• Recognition of parenthood cannot be refused in a way that would be contrary to the EU’s Charter of Fundamental Rights, i.e. not on the basis that the parents are a same-sex couple as this would breach Article 21 on non-discrimination based on sexual orientation.
• The proposal provides legal certainty and predictability about the rules on international jurisdiction and applicable law for the establishment of parenthood in cross-border situations and on the recognition of parenthood.
• The proposal would reduce the burden and legal costs families currently face in proving filiation. Previously, barriers to recognition of parenthood have been so numerous that in most cases families do not even attempt to exercise their right to freedom of movement - they stay at home, as this is less stress, humiliation and less costly than going to court.
• The proposal introduces a European Certificate of Parenthood to facilitate recognition of parenthood for purposes of rights under national law; this document is optional, and the relevant Member State must issue it if requested by the child or legal representative. The form will be available in all EU languages, so there is no need to translate it when presenting to another Member State. If the applicant wishes, they can still use a court decision or an authentic instrument to request the recognition of parenthood in another Member State, but the European Certificate would be acceptable in all Member States under this proposal (so a Member State cannot refuse it or ask for another form of proof instead). It would not replace equivalent national documents providing evidence of parenthood (such as a birth certificate), which can still be relied on.
• The proposal does not address broader family issues, and thus does not interfere with the substantive law on family matters which falls within the competence of the Member States: the proposal does not affect the competence of Member States to define a family and establish parenthood under their jurisprudence.
• The proposal does not apply to domestic situations without a cross-border element. That means the proposed legislation in no way interferes with national legislation regarding establishment of partnership or parenthood.
• The proposal takes the best interest of the child as its primary consideration, ensuring the right to an identity, to non-discrimination and to a private and family life, and to succession and maintenance rights in another Member State. The proposal covers all children because all children have the same rights.

The European Commission's proposed regulation represents a significant step forward in harmonising the recognition of parenthood across EU Member States, ensuring that a child's rights are protected when crossing borders within the EU. By addressing gaps in national laws and promoting legal certainty, the proposal aims to prevent children from losing parental ties and facing challenges related to citizenship, legal representation, and social services. The introduction of the European Certificate of Parenthood, along with the commitment to uphold fundamental rights and non-discrimination, underscores the EU's dedication to safeguarding the best interests of all children, regardless of their family structure or the circumstances of their birth. This regulation, while respecting national competences in family law, seeks to create a more inclusive and child-centric legal framework within the European Union.