Activities of Silvia MODIG related to 2022/0402(CNS)
Plenary speeches (1)
Jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and creation of a European Certificate of Parenthood (debate)
Amendments (13)
Amendment 94 #
Proposal for a regulation
Recital 14
Recital 14
(14) Under Article 21 TFEU and secondary legislation relating thereto as interpreted by the Court of Justice, the respect of a Member State’s national identity under Article 4(2) TEU and a Member State’s public policy cannot serve as justification to refuse to recognise a parent-child relationship between children and their same-sex parents or multiparent families for the purposes of exercising the rights that a child derives from Union law. In addition, for the purposes of exercising such rights, proof of parenthood can be presented by any means52 . Therefore, a Member State is not entitled to require that a person presents either the attestations provided for in this Regulation accompanying a court decision or an authentic instrument on parenthood, or the European Certificate of Parenthood created by this Regulation, where the person invokes, in the context of the exercise of the right to free movement, rights that a child derives from Union law. This should not, however, prevent a person from choosing to present in such cases also the relevant attestation or the European Certificate of Parenthood provided for in this Regulation. To ensure that Union citizens and their family members are informed that the rights that a child derives from Union law are not affected by this Regulation, the forms of the attestations and of the European Certificate of Parenthood annexed to this Regulation should include a statement specifying that the relevant attestation or the European Certificate of Parenthood do not affect the rights that a child derives from Union law, in particular the rights that a child enjoys under Union law on free movement, and that, for the exercise of such rights, proof of the parent-child relationship can be presented by any means. _________________ 52 Judgments of the Court of Justice of 25 July 2002, C-459/99, MRAX, ECLI:EU:C:2002:461, paragraphs 61 and 62, and of 17 February 2005, C-215/03, Oulane, ECLI:EU:C:2005:95, paragraphs 23 to 26.
Amendment 104 #
Proposal for a regulation
Recital 21
Recital 21
(21) In conformity with the provisions of international conventions and Union law, this Regulation should ensure that children enjoy their rights and maintain their legal status in cross-border situations without discrimination. To that effect, and in the light of the case law of the Court of Justice, including on mutual trust between Member States, and of the European Court on Human Rights, this Regulation should cover the recognition in a Member State of the parenthood established in another Member State irrespective of how the child was conceived or born and irrespective of the child’s type of family, and including domestic adoption. Therefore, subject to the application of the rules on applicable law of this Regulation, this Regulation should cover the recognition in a Member State of the parenthood established in another Member State of a child with same-sex parents and multiparent families. This Regulation should also cover the recognition in a Member State of the parenthood of a child adopted domestically in another Member State under the rules governing domestic adoption in that Member State.
Amendment 110 #
Proposal for a regulation
Recital 24
Recital 24
(24) For the purposes of this Regulation, parenthood, also referred to as filiation, may be biologic, genetic, by adoption or by operation of law. Also for the purposes of this Regulation, parenthood should mean the parent-child relationship established in law, and should cover the legal status of being the child of a particular parent or parents. This Regulation should cover the parenthood established in a Member State of both minors and adults, including a deceased child and a child not yet born, whether to a single parent, multiparent families, a de facto couple, a married couple or a couple in a relationship which, under the law applicable to such relationship, has comparable effects, such as a registered partnership. This Regulation should apply regardless of the nationality of the child whose parenthood is to be established, and regardless of the nationality of the parents of the child. The term ‘parent’ in this Regulation should be understood, as applicable, as referring to the legal parent, the intended parent, the person who claims to be a parent or the person in respect of whom the child claims parenthood.
Amendment 114 #
Proposal for a regulation
Recital 32
Recital 32
(32) This Regulation should not cover the recognition of court decisions on parenthood given in a third State or the recognition or, as the case may be, acceptance of authentic instruments on parenthood drawn up or registered in a third State. The recognition or acceptance of such documents should remain subject to the national law of each Member State. Exceptions to this rule shall include all cases involving refugees and victims of trafficking in human beings, whose recognition on parenthood will be covered by this Regulation.
Amendment 116 #
Proposal for a regulation
Recital 42
Recital 42
(42) Where jurisdiction cannot be established based on the general alternative jurisdiction grounds, the courts of the Member State where the child is present should have jurisdiction. This presence rule should, in particular, allow the courts of a Member State to exercise jurisdiction in respect of third-country national children, including applicants for or beneficiaries of international protection such as refugee children and children internationally displaced and victims of trafficking in human beigns because of disturbances occurring in their State of habitual residence.
Amendment 117 #
Proposal for a regulation
Recital 44
Recital 44
(44) In order to remedy situations of denial of justice, this Regulation should provide a forum necessitatis allowing a court of a Member State, on an exceptional basis, to rule on a parenthood matter which is closely connected with a third State. Such an exceptional basis may be deemed to exist when proceedings prove impossible in the third State in question, for example because of civil war, in particular in cases involving refugees or victims of trafficking in human beigns, or when the child or another interested party cannot reasonably be expected to initiate or conduct proceedings in that State. Jurisdiction based on forum necessitatis should, however, be exercised only if the case has a sufficient connection with the Member State of the court seised.
Amendment 124 #
Proposal for a regulation
Recital 56
Recital 56
(56) Considerations of public interest should allow courts and other competent authorities establishing parenthood in the Member States to disregard, in exceptional circumstances, certain provisions of a foreign law where, in a given case, applying such provisions would be manifestly incompatible with the public policy (ordre public) of the Member State concerned. However, the courts or other competent authorities should not be able to apply the public policy exception in order to set aside the law of another State when doing so would be contrary to the Charter and, in particular, Article 21 thereof, which prohibits discrimination. In particular, competent authoirites should not be able to apply the public policy exception to discriminate against women, same-sex couples and multiparent families.
Amendment 133 #
Proposal for a regulation
Recital 75
Recital 75
(75) Considerations of public interest should allow Member State courts or other competent authorities to refuse, in exceptional circumstances, to recognise or, as the case may be, accept a court decision or authentic instrument on the parenthood established in another Member State where, in a given case, such recognition or acceptance would be manifestly incompatible with the public policy (ordre public) of the Member State concerned. However, the courts or other competent authorities should not be able to refuse to recognise or, as the case may be, accept a court decision or an authentic instrument issued in another Member State when doing so would be contrary to the Charter and, in particular, Article 21 thereof, which prohibits discrimination, in particular against women, same-sex couples and multiparent families.
Amendment 143 #
Proposal for a regulation
Article 3 – paragraph 3
Article 3 – paragraph 3
3. This Regulation shall not apply to the recognition of court decisions establishing parenthood given in a third State, or to the recognition or, as the case may be, acceptance of authentic instruments establishing or proving parenthood drawn up or registered in a third State. Exceptions to this rule shall include all cases involving refugees and victims of trafficking in human beings, whose recognition on parenthood based on court decisions establishing parenthood given in a third State will be covered by this Regulation.
Amendment 155 #
Proposal for a regulation
Article 22 – paragraph 2
Article 22 – paragraph 2
2. Paragraph 1 shall be applied by the courts and other competent authorities of the Member States in observancefull respect, fulfillment and protection of the fundamental rights and principles laid down in the Charter, in particular Article 21 thereof on the right to non- discrimination, and shall therefore respect the rights of women, same sex couples and multiparent families.
Amendment 159 #
Proposal for a regulation
Article 31 – paragraph 1 – point a
Article 31 – paragraph 1 – point a
(a) if such recognition is manifestly contrary to the public policy of the Member State in which recognition is invoked, taking into account the child’s best interests;
Amendment 160 #
Proposal for a regulation
Article 31 – paragraph 2
Article 31 – paragraph 2
2. Point (a) of paragraph 1 shall be applied by the courts and other competent authorities of the Member States in observancefull respect, fulfillment and protection of the fundamental rights and principles laid down in the Charter, in particular Article 21 thereof on the right to non- discrimination, and shall therefore respect the rights of women, same-sex couples and multiparent families.
Amendment 163 #
Proposal for a regulation
Article 45 – paragraph 2
Article 45 – paragraph 2
2. The public policy (ordre public) referred to in paragraph 1 shall be applied by the courts and other competent authorities of the Member States in observancefull respect, fullfillment and protection of the fundamental rights and principles laid down in the Charter, in particular Article 21 thereof on the right to non- discrimination, and shall therefore respect the rights of women, same-sex couples and multiparent families.