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Just Parent

The Project

This project aims to engage a discussion about the lack of mutual recognition that leads to the dissociation between status, filiation and procreation and takes into account the new concept of social parenthood, as an alternative and adequate model for the best interest of the child. In the recognition in the European Union of a parent-child relationship, whether between a child and a married same-sex couple or between a child and intentional parents in surrogacy agreements, it is essential to strike a balance between the national identity of the Member States and the concept of the family in the traditional sense, on the one hand, and the right to freedom of movement of the child and his or her parents, on the other: the Member State must recognise the parent-child relationship – regardless of its basis – at least for the purposes of exercising the rights conferred on EU citizens by European law. The recognition of foreign acts or parental orders does not amend the domestic concept of family and family law.

Such as legal and genetic parenthood, social parenthood requires the elaboration of a common structure and the identification of the founding principles, as a model of general and not exceptional nature. It is necessary to harmonise the internal rules of parenting based on consent and agreements, to contribute to the effective and coherent application and enforcement of EU instruments.

Given the discretionary power of MS to identify sanctions for conduct deemed reprehensible and provide a legal framework on ethically sensitive issues, the protection of the best interests of the child cannot succumb. As stated by AG Kokott (in C-490/20): “a Member State must recognise the parentage of a child for the purposes of the exercise of the rights conferred by EU law on European Union citizens (…) If you are a parent in one country, you are a parent in every country”. As stated by the Committee of Experts on Family Law (“White Paper” on principles concerning the establishment and legal consequences of parentage (CJ-FA (2001) 16 rev), “Children do not live in a vacuum, but within a family and an important part of their protection is that the family unit, no matter what form it takes, enjoys adequate and equal legal recognition and protection. (…) it cannot be in the best interest of (…) children to leave their important relationships of care outside of the legal framework of rights and responsibilities (…)The challenge is to ensure that all children enjoy human rights equally”.

The aim is to guarantee the effective circulation of statuses. The interest of the child requires the identification of adequate and stable forms of protection for births and adoptions in conflict with the prohibitions, capable of ensuring the effectiveness of the consent and agreements concluded by the social parents

Objectives

    1. Definition of the phenomenon: recollection of social, intentional and factual parenthood types; realization of a comparative study on the protection of minors and social parents in intentional parenthood between case law and praxis;

    JUST-PARENT starts with an analytical phase, that will allow to identify all the different social, intentional and factual parenthood types, in order to effectively circumscribe the scope of the investigation, in the absence of a clear legal framework at both State and European level. This first step is essential for a preliminary overview of the phenomenon, to clarify and systematize the state of the art in the field of the protection of minors and social parents in intentional parenthood through a European and comparative study from a legislative, practical and historical point of view. The achievement of this goal is essential to understand if, how and why individual Member States have adopted a discipline that provides sufficient protection for children without discriminating against social families or how case law and praxis bridge the gap.

    1. Addressing the lack of effectiveness in Family Law: the problem of the downgrading and the discrimination of civil status of minors in domestic law;

    The analytical phase aims to highlight cases where the legislation of individual states is inadequate to fully protect the civil status of children due to public order obstacles (ordre public) that do not allow the proper recognition and enforcement of foreign birth certificates and parental orders, because of the existence of prohibitions and the non-recognition of certain forms of parenthood.

    1. Towards the harmonisation: the creation of a European model for the recognition and circulation of the civil status of children and the parental responsibility in “social” families for a future vertical harmonization.
  • The analysis will consider the limits set by the general principles of the EU, its competences and the possible legal bases, and the MS constitutional principles, so as to ensure the compatibility and feasibility, thus avoiding possible future frictions between Supreme Courts. The cooperation with important members of the judiciary in the Units – as well as the organization of “workshops” in every selected MS – will ensure a focus on the concrete practical issues that the judicial authority already face due to lack of harmonization, and those that may arise from the harmonization itself, thus allowing the project to improve the judicial cooperation and circulation of the statuses in cross-border cases and anticipate possible future issues. The attention to the juridical and cultural feasibility of the model(s) implementation through harmonization will be constantly monitored.

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