Enhancing Child Protection: Private International Law on Filiation and the European Commission’s Proposal COM/2022/695

Background

The certification of a birth has traditionally been understood, in line with the etymology of the word, as a formal attestation or confirmation of the truth of the biological link between an adult and a child, as observed and ascertained by a public officer. A birth certificate attesting the live birth of a child from a married mother is considered as prima facie evidence of a biological filiation both between the new born and the person giving birth and between the new born and her husband. This presumption has traditionally led to the attribution of legal status to the parent-child relation. Outside wedlock, the status of the father requires a unilateral declaration by him. More recently, in many legal orders authorising sperm donation, a specific agreement results in the creation of a parent-child relationship at birth, despite the lack of a biological link between the parent and the baby.

In the last decades, scientific developments have changed methods of establishing filiation as well as the rules enabling public officers to rectify or modify birth certificates.

The new rules that accompany filiations following contractual arrangements change States' approaches to the establishment and contestation of filiation. Important differences exist in substantive law as practices that are authorised in certain States are characterised as criminal offences in others. The differences in States’ domestic laws have a disruptive impact on status continuity and create new conflicts of laws. Children provided with birth certificates that do not reflect the truth of their biological ancestors may face problems in having the filiation that results from it recognised in other States. Children moving across borders, even within the Schengen zone, face extremely complex and increasingly common identity issues. As case law testifies, the existing differences in private international law may prevent the recognition of a family relation created in a legal order (see eg Court of Justice of the EU case VMA v Pancharevo).

To address some of those issues, on 7 December 2022, the European Commission published 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. It results from the Commission President von der Leyen’s pledge to ensure that ‘if you are a parent in one country, you are parent in every country’.

Aim

In a bid to continue supporting EU institutions and EU Member States, the current ELI project aims at proposing amendments to the above proposal. The ELI Project Team will scrutinise the rules of the proposed Regulation from four specific perspectives: children’s, LGBTI persons’ and women’s fundamental rights, and the underlying EU primary law, especially concerning the free movement of citizens. Given that the European Parliament and the Council will be examining the proposal in the forthcoming months, the ELI project will be conducted under the accelerated procedure, with the aim of producing results by February 2024.

Outcome

Based on its analysis, the Project Team will develop a Position Paper, in which provisions of the Commission’s Proposal will be scrutinised and alternative formulations proposed. Those will be supplemented with explanations and comments where necessary. The Team will also elaborate Model Rules in the form of desirable amendments