Cases, Materials and News on European Civil Procedure

Opinion of Advocate General SZPUNAR, 12 April 2018, Neli Valcheva v. Georgios Babanarakis — ‘Brussels II bis Regulation’ — Scope — Right of access — Grandmother requests to access to her grandson — Child’s interest — Jurisdiction of the court

On April 12, 2018, Advocate General Szpunar delivered his opinion in Case C-335/17, concerning jurisdiction in respect of right of access by grandparents to grandchildren under Bruxelles II bis regulation.

The case has the following factual backround. Christos was born on 8 April 2002 of the marriage of Ms. Mariana Koleva and Mr. Georgios Babanakaris. The marriage was dissolved by a Greek court which awarded custody of Christos to his father, determining the arrangements for the exercise by the mother of her right to access to the child.

Ms. Neli Valcheva, Ms. Koleva’s mother and Christos’ grandmother, after having argued that she was unable to maintain quality contact with her grandson and that she unsuccessfully sought the support of Greek authorities, applied to the Bulgarian district court for a determination of arrangements for her to excercise rights of access to her minor grandson. The court ruled that it did not have jurisdiction. The Regional Court confirmed the ruling on appeal, on the basis of Article 8 EU Reg. 2201/2003: “The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised“. The Supreme Court of Cassation, appealed by Ms. Valcheva, decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

“Is the concept of ‘right of access’ used in Article 2(10) of Regulation No. 2201/2003 to be interpreted as encompassing not only access between the parents and the child but also the child’s access to relatives other than the parents, that is to say the grandparents?”.

The Advocate General found that, despite the efforts of the EU legislature to adapt the legislation in matters of parental responsibility to developments in society, it is clear that there remain some ‘grey areas’, for which the legislation does not provide an explicit response. The case at stake, in the view of the Advocate General, is an illustration of one of those grey areas, in particular with regard to a child’s contact with other persons to whom the child has ‘family’ ties based on law or on fact. The Advocate General also found that with regard to grandparents specifically, there is not a gross uncertainty on the right of access considering that, in principle and subject to the best interest of the child, contacts between grandparents and their grandchildren, in particular in an ever-changing society, remains an essential source of stability for children and an important factor in the intergenerational bond which undoubtedly contributes to builing their personal identity.

However, it must be considered that the EU Reg. 2201/2003 does not explicitly deal with the relationship between grandparents and their grandchildren and with the susbequent right to access. Thus, the Advocate General relied on an interpretation of the Regulation that considers its wording, its scheme and its purposes, to conclude that the regulation extends to a request concerning rights of access by grandparents.

In particolar, the Advocate General found that from the reading of article 2(7), (8) and (10) it follows that the EU legislature intentionally used broad definitions in order to cover a number of situations (“all rights and duties”, “any person”). Also, parental responsibility and right of access may be conferred on any natural or legal person for the purposes of the regulation. Thus, from the wording and the scheme of the provisions of EU Reg. 2201/2003 it is apparent that the intention of the EU legislature was to cover the largest number of arrangements allowing a child to mintain contact not only with his or her parents but also with other family members or persons close to the child. The same conclusion is drawn ascertaining the objectives of the Regulation: there is no justification for rights of access to be excluded from the scope of the regulation where the applicant seeking rights of access is a person other than the parents, who has family ties to the child based on law or on fact, as in the case at stake. Moreover, the granting of rights of access to a person other than the parents could interfere with the rights and duties of those parents: it is therefore necessary, in order to avoid conflicting measures and in the best interest of the child, for the same court, that of the child’s habitual residence, to rule on rights of access.

As for the jurisdiction of the court, it should be noted that the recital 12 of the EU Reg. 2201/2003 establishes that the grounds of jurisdiction in matters of parental responsibility are shaped in the light of the best interest of the child, in particular on the criterion of proximity. Therefore, it shall be considered an exception that the competent courts are different than the ones of the place of the child’s habitual residence.

Updated: April 23, 2018 — 8:09 am

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