Rachael Kelsey

Baby Sarah was born to a same-sex couple married, and living, in Spain. Her mothers are, respectively Bulgarian and from the UK. The Bulgarian authorities refused to issue an identity document to baby Sarah, and the court found that that refusal hindered her exercise of the right of free movement and thus full enjoyment of her rights as a Union citizen and required that an identity document be issued her.
The terms of the press release from the court are direct:

“The rights which nationals of member states enjoy under Article 21(1) TFEU include the right to lead a normal family life, together with their family members, both in their host member state and in the member state of which they are nationals when they return to the territory of that member state. Since the Spanish authorities have lawfully established that there is a parent-child relationship, biological or legal, between S.D.K.A. and her two parents, attested in the birth certificate issued in respect of the child, V.M.A. and K.D.K. must, pursuant to Article 21 TFEU and Directive 2004/38, be recognised by all member states as having the right, as parents of a Union citizen who is a minor and of whom they are the primary carers, to accompany that child when she is exercising her rights.”

There will need to be a detailed review of the decision when it is published and we should be slow to presume that it goes further than it does. The decision only provides baby Sarah with recognition of her right to free movement across the European Union: in other words, it does not go so far as to provide for recognition of her status as a child in all respects across the Union.

This case, and others wending their way through the CJEU and ECHR, have perhaps prompted the action now being taken by the Commission. Wider rights for baby Sarah, that go beyond her mere freedom of movement. The initiative on the recognition of parenthood in cross-border situations would mean that more of her rights would need to be recognised across the Union- her identity as the child of her mothers would not be lost if the family moved from Spain to Bulgaria.

The Commission’s work follows the state of the union address by EU President von der Leyen at the European Parliament Plenary in September 2020, when she said: “I will also push for mutual recognition of family relations in the EU. If you are parent in one country, you are parent in every country.”

The Commission note that “Parenthood established in one EU country may not be recognised in another. This can lead to problems when travelling or moving to another EU country, and can endanger a child’s rights derived from parenthood (e.g. on maintenance, succession). This initiative aims to ensure that parenthood, as established in one EU country, is recognised across the EU, so that children maintain their rights in cross-border situations, in particular when their families travel or move within the EU.”

The work being done by the Commission looks at the existing problems with the recognition of parenthood within the Union as well as the possible solutions. As well as non-legislative measures, the work will include consideration of the adoption of a Regulation on the recognition of parenthood across member states. One possibility is that, in line with existing EU instruments on family law, there could be harmonised rules on (i) the criteria that should determine which member state’s courts are competent to resolve a cross-border dispute on parenthood, (ii) the criteria that should determine which country’s law applies to the establishment of parenthood in cross-border situations, and (iii) the recognition of judgments and official documents on parenthood issued in another member state. The proposal could also introduce a European Certificate of Parenthood (possible modelled on the existing European Certificate of Succession) as an optional instrument to facilitate the recognition of parenthood in another member state.

Following a period of open consultation earlier this year, and a stakeholder meeting yesterday, the Commission have indicated that their intention is to announce an initiative in the third quarter of 2022. We will have to wait and see how this work develops - the thinking is that any regulation in this area would have to be within Article 81(3) competence (as was the case with the other family law instruments), so unanimity will be required. That may not be easy, given the deep-seated antipathy to surrogacy in many EU member states, and the extent to which any proposed instrument would have to confront the status of children born through surrogacy.

This work also takes place at the same time as the Hague Conference on Private International Law continues its work on parentage and surrogacy. The project has recently had its tenth Experts’ Group meeting. The Experts’ Group is focussing on the possibilities for a general private international law instrument on legal parentage and a separate protocol on legal parentage established as a result of international surrogacy arrangements.

This work is hard - there are ideological, cultural, legal and practical complexities. What is clear though is that there are increasing numbers of children whose parents are not simply a heterosexual, married couple who have conceived naturally and who never leave their home country. We do need to look at what we can do to ensure that children who are born to unmarried parents, same-sex or trans parents; children who have been adopted, who have been conceived through IVF and/or born through surrogacy are not discriminated against - domestically or internationally. It will be a loss to children with connections to Scotland and/or the UK if there is an European instrument that we are no longer able to be part of and we will need to pin our hopes on a Hague Convention and Protocol, albeit that is some way off, if it does come to pass…

Rachael Kelsey is a partner at SKO Family Law Specialists. She is immediate past-president of the European Chapter of the IAFL and has participated in the European Commission Stakeholder meeting on the Recognition of Parenthood and the Hague Conference Experts’ Group on Parentage/Surrogacy.