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Summary

ARTICLE 20 OF THE 1980 HAGUE CONVENTION: BETWEEN PUBLIC POLICY AND FUNDAMENTAL RIGHTS

Article 20 of the 1980 Hague Convention resembles a ghost – although it is the subject of many rumours, it is nowhere to be seen. Metaphor aside, the provision has stimulated strong debate and discussion ever since its drafting; however, its application has remained limited, thereby resulting in only marginal practical relevance. Nonetheless, the importance of this rule far exceeds the number of decisions that have been expressly determined by it. In a time characterised by the growing relevance of human rights and increasing violations of the same, the potential and the implicit effects of this rule outweigh the doubts and justify a short comment with regard to where we stand.

Article 20 of the 1980 Hague Convention provides for an additional reason to those listed in Article 12 for refusing the return of an abducted child, namely when such return

would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.

The drafting history of the provision calls for a strict interpretation of its scope of application. After a long debate, the rule was accepted only because the delegations refused to insert a public policy clause – a must-have provision at the time – and feared that this could lead some States to make reservations to the Convention.

Accordingly, the threshold for the operation of Article 20 should be higher than what would amount to a ‘simple’ public policy clause. As the Vera Perez Explanatory Report asserted, to trigger the provision and refuse return on this basis

it will be necessary to show that the fundamental principles of the requested State … do not permit it; it will not be sufficient to show merely that return is incompatible, even manifestly incompatible, with these principles.

Although the distinction between what is ‘not permitted’ by fundamental principles and what is ‘manifestly incompatible’ with those principles offers no clear guidance, situations that might be incompatible with the public policy of the requested State could nonetheless fall out of the scope of application of Article 20 and thereby not justify a refusal of return on such grounds.

Summary

INTRODUCTION

International parental child abduction represents a fundamental breakdown of family relationships. It has the potential to severely affect or destroy the relationship between the child and one parent, and to affect the child's welfare into adulthood. As the subject of child abduction proceedings, the child's rights should be protected, particularly their right to have decisions taken in their best interests, and their right to be heard in decisions affecting their interests.

In the European Union (EU), the Hague Convention on the Civil Aspects of International Child Abduction 1980 (Hague Abduction Convention) and the Brussels IIa Regulation both seek to remedy an abduction by returning the child to their habitual residence prior to the abduction. Despite the importance of protecting the rights of abducted children, the law on child abduction does not make direct reference to the best interests of the child. The interpretation and application of the return remedy and the protection of children's rights in this context has been subject to litigation in the two supranational European courts: the European Court of Human Rights (ECtHR), and the Court of Justice of the European Union (CJEU). This chapter will explore the problems and challenges that have developed in the jurisprudence of these two supranational courts in attempting to protect children's rights on child abduction. In particular, the patchwork of children's rights instruments and the relationship between the ECtHR and the CJEU have resulted in inconsistencies in approach. It will be suggested that the supranational context is a difficult environment to further develop children's rights, given the spatial and temporal distance of the courts from the dispute. Whilst these courts are important to the promotion of children's rights, it will be suggested that the domestic courts remain the key forum for the protection of children's rights on child abduction.

The first section will examine the children's rights framework and the range of children's rights instruments applied within Europe. The legal framework remedying international child abduction within the EU will also be outlined. The key case law of the ECtHR and the CJEU will be analysed in the third section for their interpretation and application of children's rights on child abduction.

Summary

INTRODUCTION

The chapter begins with a comprehensive albeit brief overview of the case law of the European Court of Human Rights (ECtHR) on cross-border surrogacy (section 2). This is followed by a detailed analysis of the ECtHR's approach to the recognition of the legal parent-child relationship established abroad as a result of cross-border surrogacy (section 3). The focus of the chapter is on the problem of legal parenthood in the cross-border surrogacy context, with a particular emphasis on two key themes that arise in this context: the link between legal parentage and genetics, and the distinction between altruistic and commercial surrogacy. Throughout the analysis, the role of the best interests of the child principle in the specific context of the recognition of legal parentage established abroad through cross-border surrogacy is explored. The chapter concludes that, by prioritising the best interests of the individual child concerned, the ECtHR's recognition of legal parenthood in cross-border surrogacy undermines the principle of the best interests of the child generally.

CASE LAW OVERVIEW

Existing case law of the ECtHR on cross-border surrogacy can be placed into three broad categories, depending on the core legal issue that was dealt with in the particular case: (1) recognition of a legal parent-child relationship established through surrogacy abroad; (2) removal of the child from the intending parents; and (3) travel restrictions on children born through cross-border surrogacy.

RECOGNITION OF A LEGAL PARENT-CHILD RELATIONSHIP ESTABLISHED ABROAD

Mennesson v France and Labassee v. France

The ECtHR addressed the issue of the recognition of a parent-child relationship established abroad in the context of cross-border surrogacy for the first time in the joint cases of Mennesson v. France and Labassee v. France. The cases concerned the refusal to grant legal recognition in France to parent-child relationships that had been legally established in the United States between children born as a result of cross-border surrogacy and their intending parents. In both cases the intending parents were a married heterosexual couple. The children were conceived using the intending fathers ‘sperm and donor eggs. Court orders made in California and Minnesota respectively ruled that the intending parents were the children's legal parents.

Summary

THE RELATIONSHIP BETWEEN PRIVATE INTERNATIONAL LAW AND HUMAN RIGHTS

Private international law and international human rights law intersect whenever the solution of cases with international aspects endangers the enjoyment of a fundamental right or freedom, or when the protection of human rights, as ensured by international judicial mechanisms, risks jeopardising the normal functioning of the rules governing the conflict of laws.

Scholarship, albeit inspired by a variety of legal perspectives, has attempted to theoretically frame these potential points of friction, basically referring to the idea that, directly or indirectly, the way the rules governing the conflict of laws function are by now influenced and conditioned by the pervasive nature of rules protecting human rights. It should thus be remembered that many authors have for some time been aware of, if not actually predicted, in regulatory and social contexts different from ours, the complex legal issues we are dealing with here.

In fact, in an era in which the fragmentation of regulatory regimes prevails, in which the stratification of international, European and national sources results in complex dynamics of coordination and balancing of the legal values underlying the various disciplines; at a time when international jurisdictions themselves, starting with the ECtHR, are struggling to keep up with ‘new’ demands for the protection of individuals; private international law, by its nature an expression of the will to go beyond the normative divergences between systems, is undergoing a profound transformation and experiencing rediscovered vitality, having to reconcile public and private, general and particular interests under the ‘watchful eye’ of internationally recognised standards of human rights.

Without in these few introductory lines going into the merits of issues that would require much deeper analysis of the scholarship, we here start with the assumption that the current rules governing the conflict of laws, by their nature and characteristics based on a plurality of methods of coordination between systems, have among their many objectives also that of avoiding the occurrence of situations that are harmful to human rights. This is achieved sometimes by encouraging the integration of different legal cultures, at others by preserving national identities, or pursuing a specific material interest.

Summary

The idea of devoting this book to the relationship between the fundamental rights of the child and European family law stems from the Jean Monnet Modules on European Family Law, funded by the European Commission, in the years 2013/2016 and 2014/2017 at our respective Universities (University of Milano and University of Udine).

During the lectures and seminars that we organised in the framework of these modules, as coordinators, we realised that even though family law is currently considered a hot topic and is subject to intensive research in the academic world, one of the most relevant issues in the European context, that still has not been thoroughly explored, was the one related to the need to protect the rights of children both in the framework of the free movement of citizens and migration law and in the context of international private law. Thirty years have passed since the UN Convention on the Rights of the Child was adopted: the aim of this book is also to assess how and to what extent its provisions have been implemented in family-related matters, with special regard to the European context.

Notwithstanding the lack of any EU competence on family matters that fall into the exclusive jurisdiction of national law, the protection of families and family ties within EU Member States should actually be guaranteed as a means of protecting fundamental rights, and this becomes even more relevant when dealing with minors. The right to family life is indeed included in the Charter of Fundamental Rights of the European Union (the EU Charter) and in the European Convention on Human Rights (ECHR), both of which, according to the EU Treaty, impose legal duties on Member States. Specific norms regarding the rights of children can be found both in the Charter (at Article 24), and in the case law of the ECtHR, which state, in accordance with the 1989 UN Convention on the Rights of the Child, that minors (being EU citizens or third country nationals) have the right to protection and care as is necessary for their well-being. In accordance with both international and European law, minors ‘views must be taken into account and their best interests must be a primary consideration when taking any action relating to them.

Summary

INTRODUCTION

This chapter presents thoughts on criminal enforcement. Since there is only very limited material at the European level on this subject, the chapter will concentrate on the national perspective of criminal law, focusing on the question how far criminal provisions are enforced in the German legal system and what role criminal procedural law and private persons play in this context. Wherever possible and adequate, the difference between civil and public enforcement will be emphasised. There are different questions that arise from the topic. There are three main questions that are raised by criminal enforcement:

Summary

INTRODUCTION

Prevention in a broad sense is a part of existing tort law. As an economic analysis of the law, based on cost and revenue tests, quite persuasively proves, it is advantageous for an economically-thinking individual to respect a certain standard of behaviour (duty of care). It is better to take precautions to prevent damages rather than to be involved in such an incident – whether as an injured party or a perpetrator, and thus as a compensation recipient or, on the contrary, as a compensation payer. Such behaviour should be promoted as well by a general system of protection, including in particular the insurance system.

This chapter addresses prevention in tort law, but in a slightly different way than in which this phenomenon is conventionally addressed. It aims to prove that prevention has specific features and thus can constitute different aim and content than the prevention traditionally understood within tort law. This is, therefore, a case of the so-called prevention in a narrow sense, which concerns situations of emergency or peril to a third person, somebody else's property or general asset, lacking any relation to a potential rescuer.

This kind of prevention has its legal basis in § 2901 of the Czech Civil Code/2012. According to this provision, an individual is obliged to intervene in favour of somebody else if he/she ‘can, according to his potential and skills, easily avert harm of which he knows or must know that its impending gravity clearly exceeds what must be exerted for the intervention has the same duty.’

The Czech legislator codified – in harmony with the Czechoslovak tradition – a so-called ‘tortious preventive liability’, which represents a unique phenomenon. A legal (statutory) duty has been imposed on persons referred to as ‘Samaritans’, who are independent of the person who faces threatening harm. A violation of the duty to intervene can be considered a tort, establish a prerequisite of the preventive liability and, as consequence of it, of a sanction: a secondary duty in the sense of compensation of the damage which could have been avoided.

Hence, the prevention in the broad (traditional) sense is enriched by this specific prevention (prevention in the narrow sense). This preventive liability extends the mechanism (system) of tort law through a new paradigm.

Summary

INTRODUCTION

We had to wait until 1989 for a specific general catalogue of children's rights to be approved at the supranational level (the Convention on the Rights of the Child (CRC)), which was drafted in New York in the framework of the United Nations). However, some general principles applicable to children had already been included in previously devised instruments concerning human rights. These include the Universal Declaration on Human Rights proclaimed by the UN General Assembly in 1948, the International Covenant on Civil and Political Rights of 1966 and the European Convention on Human Rights (ECHR) of 1950, all of which contain references at least to the need to protect family life.

The CRC differs from these previous instruments in that it considers the child as a subject and not only as an object of law. Through this ‘Copernican revolution’ children have become a focus of legal reasoning and are granted specific and autonomous rights that do not derive from their parents or, more generally, from being part of a ‘legitimate’ family. Such rights could also diverge from those of other family members. However, as will be illustrated in this chapter, the complex legal framework existing at the international level has yet to be fully implemented at the national level in most cases.

This chapter considers the idea that children's rights need to be protected as human rights, and that such protections are not only reserved for toddlers but are also valid for adolescents and young adults. Accordingly, this work analyses the main supranational instruments concerning children's fundamental rights, and assesses the global impact of the relevant principles on domestic family law in the EU Member States. Such an impact will be considered with particular regard to the role of the Court of Justice of the European Union (CJEU) in tandem with that of the European Court of Human Rights (ECtHR).

This chapter proceeds under the basic assumption that children's rights can be divided into two categories. The first category encompasses the more basic rights that are usually not at risk of violation in EU Member States (e.g. the right to respect for physical integrity and its violation in case of female genital mutilation).

Summary

DIVERGING INFLUENCES ON THE EVE OF THE CODIFICATION OF THE GERMAN CIVIL CODE

Put simply, the legal discussion prior to the codification of the German Civil Code was influenced by two schools of thought. On the one hand, there was the classical Roman approach of thinking in actiones. Private law was primarily perceived through the practical perspective of the remedies a iudex would grant. The actiones were at the centre of any effort of legal systematisation. The actio combined aspects that today in German law are found to be subject to both procedural law as well as, partly, to substantive law. Conceptually, one could say that the classical Roman approach of thinking in actiones granted by the iudex somewhat found a theoretical exaggeration in the theory of imperatives, even though no clear historical line can be drawn. The theory of imperatives not only focused in a practical way on what could be enforced judicially, but also denied the existence of legal norms in private law other than the enforceable imperatives altogether. The idea that imperatives serve to protect individual subjective rights was openly rejected.

On the other hand, on the eve of the codification of the German Civil Code, legal scholarship was also influenced by an already far-advanced idea of substantive subjective rights. As early as the Middle Ages some scholars are said to have differentiated between the judicially enforceable actio and the underlying substantive ius. The idea of subjective rights was an important element of the doctrine of natural law. Likewise, it played a central role in Kant's philosophy of law .

Savigny combined the idea of subjective rights existing regardless of judicial enforcement with the Roman thinking in actiones. The connecting theoretical link was Savigny's idea of a ‘metamorphosis’. Accordingly, every subjective right metamorphoses into a right of action as soon as it is infringed. Following Savigny every actio is based on the existence and infringement of a subjective right. Savigny had the ambition to include both absolute as well as relative rights in his theory of a metamorphosis. An absolute right only yields an action once it is infringed. The proprietor's rei vindicatio is legitimised by the opponent's wrongful possession.

Summary

INTRODUCTION

It is fair to say that the concept of remedies does not play a significant role in contemporary public law doctrine. Certainly the English expression ‘remedies’ is used frequently in English publications on public law. This applies to works from common law authors as well as to works from continental scholars writing in English. But ‘remedies’ then does not have an autonomous specific meaning. It is rather a generic term used to assemble the various ways of redress against public authorities. Normally, two basic elements are identified as such remedies in public law: judicial review and state liability. For instance, in a major treatise on EU administrative law, Paul Craig states that in EU law, as well as in every domestic legal system, there are two main remedies available ‘for holding public bodies to account’: annulment and compensation. This proposition is representative for the common view.

In this chapter this view will be referred to as the ‘standard picture’ of a public law of remedies and it will be presented and described in more detail. The author is of the opinion that it represents an approach that is not convincing. The standard picture is flawed. An alternative, basically a scheme of basic legal positions arising from public law norms will be introduced, and it will be shown how these positions are linked to particular claims. Some of these claims form a branch of law that many scholars are not aware of. In German, it is sometimes called Reaktionsrecht which can be translated literally as ‘law of reactions’ or ‘law of responses’. The law of reactions could be seen as a regime of remedies, yet then remedies are not understood in the generic sense just introduced, but rather in a new, narrow sense.

Eventually, the ‘law of reactions’ will not be linked with the idea of remedies. For the law of reactions is purely substantive law. It gives the grounds for action, whereas the term ‘remedies’ oft en refers to lawsuits or actions themselves (and sometimes even to their outcomes). Or, to put it differently, according to a common view ‘the law of remedies falls somewhere between substance and procedure’.

With the increasing importance of the concept of remedies in European private law, this book focuses on remedies as a distinctive and novel field of European legal research. It considers the common law tradition (England and Wales), as well as the civil law viewpoint (on the example of Germany), making the case for a European law of remedies. It is argued that 'remedies' are an enforcement tool influencing the scope of substantive rights. In doing so, the book analyses different mechanisms of enforcement, including the debate on private versus public enforcement as well as the perspective of criminal law. The enforcement of rights is understood as an intradisciplinary task. Remedial law is, however, distinct from procedural law, as well as from substantive law in a narrow sense. Subsequent to defining the scope of a law of remedies, this book analyses several underlying principles and common themes. For example, the proportionality test is presented as fundamental principle in European remedial law. The value gained by identifying common ground is e. g. illustrated with respect to damages in European Private Law. Especially in IP law, in turn, the CJEU rulings and secondary European legislation confirm the importance of proportionate remedies. Moreover, within the law of remedies the function of each remedy can be analysed, and respective interests can be balanced. Further examples that reveal the importance of a sophisticated enforcement are the CJEU's recent extension of the concept of communication to the public, the notice-and-take-down-procedure in intermediary liability cases and remedies for non-conformity of digital content or consumers' remedies in European contract law. In German patent law, the development of grace periods and shareholders´ rights in German corporate law can be analysed from a "remedy" perspective as well. Overall this book demonstrates that remedies are more than just an addendum and innovatively presents an emerging research area. As such it is of great relevance to all lawyers concerned with questions surrounding the enforcement of rights: international academics as well as practitioners.

Summary

INTRODUCTION

Recognising a status filii duly acquired abroad can be seen as a ground for legitimising family models capable of adversely affecting the notion of a traditional family. A bibliography on international family law indicates that the ‘family,’ conceptualised as a mere unit of society, is a constantly changing area of study, a ‘moving target’, as it were.

Legal analysis, through the prism of international law, is not called to ideologically endorse notions of the ‘traditional’ family or ‘untraditional’ family. Respect for both human and children's rights, as defined by international instruments, unavoidably impacts national family law, including its private international law (PIL) system, and national communities ‘basic ethical principles. As long as international agreements are binding, they are part of academic legal research, which also must consider how international courts apply these agreements. However, as suggested elsewhere, a human rights-based perspective on the recognition of foreign family status does not necessarily lead to a unique or universal concept of the family. As seen throughout this chapter, international human rights standards do not prevent States from enjoying some space for manoeuvre insofar as national legal orders do not share the same foundational values. It still holds true that the international judiciary instituted by human rights treaties, in principle, allows domestic law to protect the family in the traditional sense, a weighty and legitimate reason that may justify differences in treatment. Striking a balance between the role of the traditional family and international human rights standards is a delicate and difficult exercise. In this respect, critically evaluating both PIL systems and the international case law is necessary.

To begin with, under any system of conflict of laws, a foreign judgement or public act concerning a status filii can be prevented from producing effects in the forum if its recognition would be contrary to some predetermined requirements of the requested State. This is usually the case when the foreign authority (i.e. that of the State of origin) has not: (i) exercised jurisdiction according to the same criteria adopted by the national system of PIL (i.e. the national rules on jurisdiction); (ii) complied with the conflict of law rules of the forum; or (iii) issued a decision inconsistent with the forum doctrine of ordre public to cause manifest and serious harm to the fundamental principle of justice or morals characterising the requested State.

Intersentia

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Cross-Border Parental Child Abduction in the EU: Is there Room for a Human Rights Exception?

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List of Authors

Protecting Children's Rights aft er Child Abduction: The Interaction of the CJEU and ECtHR in Interpreting Brussels II bis

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Index

List of Authors

Surrogacy Arrangements and the Best Interests of the Child: The Case Law of the European Court of Human Rights

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About the Editors

Frontmatter

The Best Interests of the Child Principle at the Intersection of Private International Law and Human Rights

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Preface

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Criminal Enforcement

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Index

Preventive Liability and System of Sanctions in Tort Law

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Human Rights of Children in the EU Context: Impact on National Family Law

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Contents

List of Cases

Remedies in Private Law from a German Perspective

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Rights and Remedies in Public Law

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Law of Remedies

Recognition of a Foreign Status Filii: Pursuing the Best Interests Principle

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