Parental Responsibility

by Josep Ferrer i Riba

1. Scope and terminology

In strict terms, the concept of parental responsibility refers to the set of powers and duties which the law attributes to parents with regard to their children. These rights and duties are aimed at promoting and safeguarding the child’s welfare and essentially encompass the providing of personal care, protection and education, assuming administration of the child’s property, and exercising legal representation. Resort to the expression ‘parental responsibility’ as a legal concept is rather uncommon in national legal systems. Within Europe it has been embraced only by Norwegian law (since 1981) and English law (since 1989). However, it has become increasingly frequent at the international level. It was used in Recommendation No R (84) 4 of the Committee of Ministers of the Council of Europe, and later in Art 18(1) UNCRC. It reappeared as a technical concept subject to autonomous interpretation in the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children of 1996 (Art 3(a)), and it was subsequently employed in Regulations 1347/2000 (Brussels II) and 2201/2003 (Brussels IIbis). The concept has now become consolidated, as is reflected by its use in the White Paper on Principles concerning the establishment and legal consequences of parentage of 2002 (White Paper on Parentage 2002) (parentage) and especially in the drawing up of the Principles of European Family Law Regarding Parental Responsibilities (PEFLPR) published by the CEFL in 2007.

From an historical perspective, the concept of parental responsibility, as it is described and developed in the White Paper on Parentage 2002 and the PEFLPR, constitutes the final step in a long process of social and legal change. This evolution began with the parental authority enshrined in 19th-century civil codes, attributed to the father as an all-embracing power over his legitimate children, in the image of the patria potestas of Roman law. During the second half of the 20th century, and with the background of the post-war political constitutions, the way was cleared for eradicating discrimination against children born out of wedlock, recognizing the legal equality of both mother and father, and conceptualizing parents’ legal position with respect to their children as a duty which has to be fulfilled for the child’s benefit and with his or her participation in accordance with age and maturity. Nowadays this conception enjoys international consensus.

It is essential to note that the concept of parental responsibility crafted by international instruments and used in the PEFLPR is a very broad one and goes far beyond the designation of the powers and duties entrusted to parents over their children. First, it includes not only the power and duty to care for a child in the widest sense, to take decisions and, if necessary, to carry them out vis-à-vis third parties, but also the right to determine the child’s residence and to maintain personal relationships with the child where appropriate (Art 1(2)(a) Brussels IIbis; Principle 3:1 PEFLPR). Furthermore, and in accordance with this extended meaning, parental responsibility may be vested in persons other than the child’s parents (eg grandparents, step-parents, foster parents, public institutions) (Art 1 (1)(b), (c), (d) Brussels IIbis; Principles 3:2 and 3:9 PEFLPR). This conceptual enlargement, both in terms of content and persons, is also reflected by the use of a plural term (‘parental responsibilities’) in the White Paper on Parentage 2002 and in the English version of the PEFLPR. Most national legal systems, in contrast, prefer to draw an institutional distinction between the powers attributed to legal parents (elterliche Sorge; autorité parentale; patria potestad; potestà dei genitori) and those attributed to other persons should the need arise (guardianship of minors; tutelle; tutela). Similarly, in many domestic laws the whole set of parental powers and duties is usually broken up into more specific functions, which have their own rules and may sometimes be attributed separately to different persons. These powers and duties include matters such as the child’s personal care and property administration (eg §§ 1631, 1638 Bürgerliches Gesetzbuch (BGB), defining the scope of the Personensorge and the Vermögenssorge), the right to live with the child and to decide where the child resides (custodia; affidamento), the right to maintain personal contact (Umgang, droit de visite et d’hébergement), or the right to take part in decisions with respect to daily matters affecting the child (eg § 1687b BGB, regarding the step-parent’s position). Bringing all these powers and duties together under a single concept, as done by international and soft law instruments, is a sensible decision: if the parents live apart, focusing on parental responsibility relegates custody disputes to the background and emphasizes the idea of joint parental involvement in the child’s upbringing; at the same time, working with a very broad concept simplifies the task of practitioners, judges and other legal actors in private international law cases. Nevertheless, leaving aside the private international law setting, the concept’s very breadth reduces its practical usefulness: its application does not avoid the need for the law or the courts to lay down criteria for the awarding of custody, for the regulating of contact rights or for the coordinating of parents’ powers with those held by other persons vested with more limited decision-making or protective functions.

2. Most controversial issues

The most important and controversial legal issues raised by parental responsibility affect: (i) the determination of the conditions for its attribution and exercise, particularly if paternity and maternity were not immediately and simultaneously established at the moment of the child’s birth or if the parents are not married, and also following the parents’ separation or divorce; (ii) the possibility and, where necessary, the conditions for attributing parental responsibility to persons other than the legal parents, as well as the possibility of dividing up the functions of parental responsibility in order to permit its partial exercise by other persons (eg step-parents, relatives, foster parents); (iii) the delimitation of its content and its coordination with the recognition of areas in which children may enjoy a certain freedom to make autonomous decisions with the aim of facilitating their personal development; (iv) the criteria which must govern its suspension and discharge, should the child’s best interests so require. Apart from these issues, there is also much concern over the attribution and exercise of certain forms of parental responsibility (understood in its broad sense), such as custody and contact rights. In particular, defining the criteria which must govern the attribution and modification of physical custody between parents who are separated is especially controversial, as is the admissibility of forms of alternative residence, whether by agreement of both parents or by decision of a competent authority. Another frequent issue in legal practice concerning matters of contact rights is the conflict between the holder or holders of physical custody and other persons who have a legally relevant interest in maintaining a relationship with the child, such as grandparents. Nevertheless, the greatest challenge for legal systems is posed not by regulation but by enforcement, especially in cases of parental alienation and international child abduction.

3. Comparative trends and European principles

Parental responsibility is in principle attributed to the child’s legal parents. A significant number of legal systems, however, do not automatically assign responsibility to the father if the child is born out of wedlock; in such a case, attribution may be dependent on an agreement between the parents or, in the absence of any agreement, on a judicial decision or other circumstances which indicate the father’s willingness to assume this responsibility (Denmark, England, the Netherlands and Sweden). Council of Europe Recommendation No R (84) 4 circumscribed the joint exercise of parental responsibility to cases in which the parents either lived together or had agreed on this form of exercise (Principle 7). The ECtHR also declared that the legal imposition of conditions on unmarried fathers for obtaining recognition of their parental role complied with the principle of proportionality (ECtHR No 16424/90 – McMichael). The White Paper on Parentage 2002 reflects a substantial change in orientation in considering that parental responsibility should in principle belong jointly to both parents (Principle 19.1). Principle 3:8 PEFLPR reaffirms the same principle in maintaining that the establishment of legal parentage (and not the parents’ marital status) has to be the only relevant factor for attributing parental responsibility. Following this approach, the ECtHR has more recently found that the German and Austrian rules which attributed parental responsibility to the unmarried father only with the consent of the mother were discriminatory and violated Art 14 ECHR (ECtHR No 22028/04 – Zaunegger; No 35637/03 – Sporer). The Court observed that although there exists no consensus as to whether fathers of children born out of wedlock have a right to request joint custody without the mother’s approval, decisions on the attribution of custody must be based on the child’s best interests and in the event of conflict between the parents, an opportunity has to be provided for judicial scrutiny. The joint exercise principle applies all the more in cases where the parents separate or divorce. There is a clear trend in European legal systems to understand that parental responsibility should be affected neither by dissolution of the marriage nor by separation between the parents. Principle 3:10 PEFLPR confirms this widely accepted view.

Parental responsibility may also be wholly or partially bestowed on third parties. This happens when the parents are absent, when they fail to fulfil their duties (child protection) or when the child’s interests require it because of other circumstances. The increase in blended families has led many legal systems to permit the spouse or partner of the parent with whom the child resides some participation in the exercise of parental functions. This normally requires either this parent to be the exclusive holder of parental responsibility or the other parent’s consent should this not be the case. Both the requirements established by national legal systems for attributing parental responsibilities to a spouse or partner as well as the content of such responsibilities vary greatly. Principle 20.3 of the White Paper on Parentage 2002 and Principles 3:9 and 3:17 PEFLPR broadly accept that persons other than a parent may exercise some or all parental responsibilities in addition to or instead of the parents. The PEFLPR, unlike the White Paper, do not necessarily require judicial or administrative authority to intervene in the attributing of responsibilities to third parties. This takes into account the fact that some legal systems grant parental functions to the step-parent or the parent’s partner by operation of the law (eg in the Netherlands) or on the basis of an agreement between the parties. The right of the parent’s partner living with the child to take part in decision-making is explicitly recognized by Principle 3:18, which nevertheless restricts such right to decisions regarding daily matters, and requires the other parent having parental responsibilities not to object.

Children do not only have to be informed and to be able to express their opinions: the law also has to take into consideration their capacity for and need to act autonomously, and to this effect may attribute certain areas of autonomous decision-making to them. This idea also belongs to the common core of European legal systems (Principle 3:4 PEFLPR), but its definition and development is very uneven. In the exercise of parental responsibility, the child has to be informed and consulted and his or her opinion must be taken into account in accordance with age and degree of maturity (Principles 3:4 and 3:6 PEFLPR and, in the field of EU Law, Art 24(1) EU-Charter). The child’s right to express his or her opinion also applies in all proceedings concerning parental responsibilities and includes the right to be heard either directly or indirectly through a representative or an appropriate body (Art 12 UNCRC; Principle 3:37 PEFLPR). The exercise of this right is developed by the European Convention on the Exercise of Children’s Rights of 1996. This treaty establishes several procedural rights aimed at promoting children’s active participation in family proceedings. These include the right of the child to receive all relevant information, to be consulted, to express his or her views and to apply for a special representative in proceedings affecting him or her (Arts 3 and 4). The convention requires states parties to consider granting children additional procedural rights (Art 5) and lays down a set of duties of judicial authorities and the child’s representatives in such proceedings. The legal formulas which refer to the child’s age and degree of maturity (‘in accordance with age and maturity’; ‘children considered as having sufficient understanding’) have no common and agreed meaning; this is usually remanded to internal legal systems or case law.

The granting of autonomy to children depends on their age and maturity, as well as the importance of the decisions which may have to be taken. Depending on the significance of the issues to be decided, national legal systems may attribute to children the power to decide for themselves, to decide with the assent of the holders of parental responsibility, or to agree to decisions taken by the latter. On the whole, children’s autonomy is usually upheld in matters which most directly affect their personality and constitutional rights (decisions about medical treatment, education and professional training, religion, ideological choices and image rights). The lack of common European standards means that defining the cases in which children may participate in decision-making is left to national legal systems (see eg Art 6(2) Oviedo Convention on Human Rights and Biomedicine of 1997, which deals with the capacity to consent to interventions in the health field and establishes that the child’s opinion shall be taken into consideration as an increasingly determining factor in proportion to his or her age and degree of maturity).

The termination of parental responsibilities by operation of the law follows similar patterns in all European legal systems. Grounds for termination are the child’s reaching majority, marrying or entering into a registered partnership, being adopted or dying (Principle 3:30 PEFLPR). Some Romanistic systems (France and Spain) have preserved the institution of emancipation. Emancipation is awarded by the parents or, in certain circumstances, by the courts, and brings about the extinguishing of parental responsibility and the acquisition of contractual capacity by the child. Emancipation does not seem likely to become a generally accepted category in European private law. The death of one of the parents, on the other hand, confers the exercise of parental responsibility to the other alone if both parents had been joint holders of responsibility until that time. If, on the contrary, the surviving parent did not hold parental responsibility, the possibility of automatically granting it to him or her remains a debatable question. Although most European legal systems follow this approach, Principle 3:31(2) PEFLPR stipulates that in such an event a competent authority must decide whether responsibilities should be attributed to the surviving parent or to a third person. This solution, which requires the authorities’ intervention (as is the case in Germany or the Netherlands), is considered to be more in accordance with the child’s best interests. Parental responsibility may also be discharged, wholly or in part, if the holder’s behaviour or neglect causes a serious risk to the child’s person or property (Principle 3:32 PEFLPR). ECtHR case law has set the substantive standards and procedural safeguards which the competent authority must respect in these cases (child protection).

4. European developments concerning custody and access or contact rights

The broad concept of parental responsibility used in international instruments encompasses personal care of the child, determining the child’s residence and maintaining personal relationships with him or her. In the event of family breakdown, the determination, modification and enforcement of these rights and duties—particularly in family relationships with cross-border elements—may turn out to be highly conflictive. Several instruments have been designed at the international and European level to fight against the wrongful removal or retention of children and to facilitate the recognition and enforcement of judicial or administrative decisions concerning custody rights and rights of access of the child or to the child (child law (international)). Particularly noteworthy in this area are the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children of 1980, and the Convention on Contact concerning Children of 2003, drawn up by the Council of Europe; the Hague Convention on the Civil Aspects of International Child Abduction of 1980, and the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children of 1996 (Hague Conference on PIL), and the Brussels IIbis-Regulation (Reg 2201/ 2003). The goals and scope of application of these legal instruments are partly overlapping and partly complementary. In relations between EU Member States, the Brussels IIbis Regulation takes precedence in all matters governed by it (Arts 60, 61). The Brussels IIbis Regulation, in particular, does not divest the Hague Convention of 1980 of application, but complements it (Art 11). The effectiveness of these instruments has been reinforced by the European Court of Human Rights (ECtHR): the scope of the obligation imposed by Art 8 ECHR on states to guarantee as far as possible the maintenance of personal relationships between parents and children has to be interpreted taking into account the Hague Convention of 1980 and the other international agreements on the matter (ECtHR No 31679/96 – Ignaccolo-Zenide).

The recognition and cross-border enforcement of judicial or administrative decisions as well as international cooperation in general are more fluid when national legal systems share common substantive and procedural principles concerning the determination or alteration of the child’s residence and the access to parents or to other persons. Some instruments (especially the Convention on Contact of 2003) and, at another level, the PEFLPR, contribute to this function of normative approximation. When parental responsibility is exercised by persons living apart, Principle 3:20 PEFLPR requires them to agree about who the child will reside with, but it does not supply specific criteria to resolve cases where there is disagreement, although it does expressly allow the option of the child’s residing with the holders of parental responsibility on an alternate basis, upon either an agreement subject to approval or a decision taken by a competent authority. Principle 3:21, in contrast, contains an open list of factors which the competent authority should take into consideration in deciding on the child’s place of residence if one of the parents wishes to relocate within or outside the jurisdiction and the other parent objects to the change. As regards the right to maintain personal relationships, the Convention on Contact of 2003 incorporates a set of general principles to be applied to contact orders. Among them there is the consideration of contact between parents and children as a reciprocal right (Art 4(1), later enshrined in Principle 3:25 PEFLPR), the setting up of supervised personal contact systems, if unsupervised contact is not in the child’s best interests (Art 4(3)), and the states’ duty to provide for and promote the use of specific safeguards and guarantees ensuring that such decisions will be complied with in their internal laws (Art 10).

So far, the most effective steps towards harmonizing the law in this field have been taken by the European Court of Human Rights (ECtHR) through its case law. As concerns the determination of custody or access rights, the court grants a broad margin of appreciation to national authorities on account of their advantage of direct contact with all the affected parties. However, neither national laws nor court rulings may apply discriminatory criteria: differential treatment for fathers of children born out of wedlock may be an infringement of Art 14 ECHR (ECtHR No 30943/96 – Sahin and No 31871/96 – Sommerfeld, concerning contact rights; ECtHR No 22028 – Zaunegger and No 35637/03 – Sporer, concerning custody); likewise, resorting to the parents’ religious beliefs or to their sexual orientation as decisive factors for assigning custody is also not acceptable under the convention (ECtHR No 12875/87 – Hoffmann; No 33290/96 – Salgueiro da Silva). Furthermore, in dealing with enforcement the court has insisted many times on the need for states to undertake all reasonable efforts to facilitate contact between parents and children and also to ensure that the competent authorities resolve cases quickly in order to reduce the risk of child alienation. Inactivity or serious delay by the competent authorities in giving effect to rights to custody or personal relationships may constitute a violation of Art 8 ECHR (ECtHR No 19823/92 – Hokkanen). The European Court accepts that enforcing court rulings is sometimes not possible or not desirable and, in any case, must be preceded by preparatory measures. Enforcement may possibly even prove to be permanently unavailable if a child over a certain age expresses his or her unwavering opposition. In these cases of apparent parent-child alienation, the ECtHR has understood Art 8 ECHR to have been infringed if certain basic guarantees, such as the ordering of independent psychological reports or the holding of an oral hearing, were not respected in the custody or access proceedings (ECtHR No 25735/ 94 – Elsholz; No 18249/02 – C.).

Literature

Bettina Gründler, Die Obsorge nach Scheidung und Trennung der Eltern im europäischen Rechtsvergleich (2002); Kerima Kostka, Im Interesse des Kindes? Elterntrennung und Sorgerechtsmodelle in Deutschland, Großbritannien und den USA (2004); Katharina Boele-Woelki, Bente Braat and Ian Curry-Sumner (eds), European Family Law in Action, vol III, Parental Responsibilities (2005); Ingeborg Schwenzer (ed), Tensions Between Legal, Biological and Social Conceptions of Parentage (2007); Machteld J Vonk, Children and their Parents (A Comparative Study of the Legal Position of Children with Regard to their Intentional and Biological Parents in English and Dutch Law) (2007); Katharina Boele-Woelki, ‘The CEFL Principles Regarding Parental Responsibilities: Predominance of the Common Core’ in Katharina Boele-Woelki and Tone Sverdrup (eds), European Challenges in Contemporary Family Law (2008) 63; Christina Jeppesen de Boer, Joint Parental Authority (A Comparative Legal Study on the Continuation of Joint Parental Authority after Divorce and the Breakup of a Relationship in Dutch and Danish Law and the CEFL Principles) (2008); Jens M Scherpe, ‘Establishing and Ending Parental Responsibility—A Comparative View’ in Rebecca Probert, Stephen Gilmore and Jonathan Herring (eds), Responsible Parents and Parental Responsibility (2009) 43; Esin Örücü and Jane Mair (eds), Juxtaposing Legal Systems and the Principles of European Family Law on Parental Responsibilities (2010).