33 Amendments of Frances FITZGERALD related to 2022/0402(CNS)
Amendment 77 #
Proposal for a regulation
Recital 2
Recital 2
(2) This Regulation concerns the recognition in a Member State of the parenthood of a child as established in another Member State. It aims to protect the fundamental rights and other rights of children in matters concerning their parenthood in cross-border situations, including their right to an identity31 , to non-discrimination32 and to a private and family life33 , taking the best interests of the child as a primary consideration34 . This Regulation also aims to provide legal certainty and predictability and to reduce litigation costs and burden for families, national courts and other competent authorities in connection with proceedings for the recognition of parenthood in another Member State. To attain these aims, this Regulation should require Member States to recognise for all purposes the parenthood of a child as established in another Member State. Facilitating the regulatory framework to recognise parenthood in all EU countries is primarily in the best interest of the child so as to ensure children’s right to identity, nationality, non-discrimination and succession and maintenance rights are protected across the EU. _________________ 31 Article 8 of the UN Convention on the Rights of the Child. 32 Article 2 of the UN Convention on the Rights of the Child, Article 21 of the Charter of Fundamental Rights of the European Union. 33 Article 9 of the UN Convention on the Rights of the Child, Articles 7 and 24 of the Charter of Fundamental Rights of the European Union. 34 Article 3 of the UN Convention on the Rights of the Child, Article 24 of the Charter of Fundamental Rights of the European Union.
Amendment 81 #
Proposal for a regulation
Recital 5
Recital 5
(5) Under the Treaties, the competence to adopt substantive rules on family law, such as rules on the definition of family and rules on the establishment of the parenthood of a child, lies with the Member States. However, pursuant to Article 81(3) TFEU, the Union can adopt measures concerning family law with cross-border implications, in particular rules on international jurisdiction, on applicable law and on the recognition of parenthood. Measures to recognise parenthood in all EU countries are an important part of strengthening, facilitating and encouraging free movement within the EU, including the right to return back to the Member State of origin and continue the life that was built while away.
Amendment 83 #
Proposal for a regulation
Recital 6
Recital 6
(6) In conformity with the Union’s competence to adopt measures on family law with cross-border implications, the 2010 ‘European Council Stockholm programme – An open and secure Europe serving and protecting citizens’40 invited the Commission to consider the problems encountered with regard to civil status documents and the access to registers of such documents and, in the light of its findings, to submit appropriate proposals and consider whether the mutual recognition of the effects of civil status documents could be appropriate, at least in certain areas. The Commission Action Plan Implementing the Stockholm Programme41 envisaged a legislative proposal for dispensing with the formalities for the legalisation of documents between Member States and a legislative proposal on the mutual recognition of the effects of certain civil status documents, including as regards birth, parenthood and adoption. Points out that findings could serve to remedy the lack of existing legal protections which have even culminated in European children, including girls, being rendered stateless and denied equal treatment. _________________ 40 OJ C 115 of 4.5.2010, p. 1. 41 COM(2010) 171 final.
Amendment 85 #
Proposal for a regulation
Recital 8
Recital 8
(8) While the Union has competence to adopt measures on family law with cross- border implications such as rules on international jurisdiction, applicable law and the recognition of parenthood between Member States, to date the Union has not adopted provisions in those areas as regards parenthood. The Member States’ provisions currently applicable in these areas differ. In order to increase the safety of children and to make it easier for families to live in the EU, it is of great importance that the Union adopts regulations that make parenthood legal across national borders as a prerequisite for gender equality.
Amendment 87 #
Proposal for a regulation
Recital 10
Recital 10
(10) As a result of the absence of Union provisions on international jurisdiction and applicable law for the establishment of parenthood in cross-border situations and on the recognition of parenthood between Member States, families may encounter difficulties in having the parenthood of their children recognised for all purposes within the Union, including when they move to another Member State or return to their Member State of origin. All families, regardless of how they came about, must have the right to be a family on equal terms in society as a means of promoting gender equality.
Amendment 89 #
Proposal for a regulation
Recital 11
Recital 11
(11) Children derive a number of rights from parenthood, including the right to an identity, a name, nationality (where governed by ius sanguinis), custody and access rights by their parents, maintenance rights, succession rights and the right to be legally represented by their parents. The non-recognition in a Member State of the parenthood established in another Member State can have serious adverse consequences on children’s fundamental rights and on the rights that they derive from national law. This may prompt families to start litigation to have the parenthood of their child recognised in another Member State, although those proceedings have uncertain results and involve significant time and costs for both families and the Member States’ judicial systems. Ultimately, families may be deterred from exercising their right to free movement for fear that the parenthood of their child will not be recognised in another Member State for the purposes of rights derived from national law. To allow families to fall outside the system on which society is built, is to discriminate against children and their families: their rights to security and dignity must be upheld. To deny some families the right to exist is to deny them of the dignity of the individual and is contrary to our European way of life and the promotion of gender equality.
Amendment 91 #
Proposal for a regulation
Recital 12
Recital 12
(12) In 2020 the Commission announced measures47 to ensure that the parenthood established in a Member State would be recognised in all other Member States. This initiative was included in the 2020 EU LGBTIQ Equality Strategy48 and the 2021 EU Strategy on the rights of the child49 as a key action to support equality and the rights of children. The European Parliament welcomed the Commission’s initiative in its 2021 Resolution on LGBTIQ rights in the EU50 and in its 2022 Resolution on the protection of the rights of the child in civil, administrative and family law proceedings51 . In the European Union, both parenthood, civil union and marriage between people of all genders recognised in one EU country should be recognised throughout the EU. _________________ 47 State of the Union Address by Commission President von der Leyen at the European Parliament Plenary, 20 September 2020. 48 Union of Equality: LGBTIQ Equality Strategy 2020-2025, COM(2020) 698 final. 49 EU Strategy on the rights of the child, COM(2021) 142 final. 50 European Parliament resolution of 14 September 2021 on LGBTIQ rights in the EU (2021/2679(RSP)). 51 European Parliament resolution of 5 April 2022 on the protection of the rights of the child in civil, administrative and family law proceedings (2021/2060(INI)).
Amendment 92 #
Proposal for a regulation
Recital 13
Recital 13
(13) Women, girls and all other childrens’ right to free movement is impinged if the whole family unit is not recognised. This Regulation should not affect the rights that a child derives from Union law, in particular the rights that a child enjoys under Union law on free movement, including Directive 2004/38/EC. For instance, Member States must already today recognise a parent-child relationship for the purposes of permitting children to exercise, with each of their two parents, the right to move and reside freely within the territory of the Member States without impediment, and to exercise all the rights that the child derives from Union law. This Regulation does not provide for any additional conditions or requirements for the exercise of such rights.
Amendment 95 #
Proposal for a regulation
Recital 16
Recital 16
(16) Article 2 of the United Nations Convention on the Rights of the Child of 20 November 1989 ('UN Convention on the Rights of the Child') requires States Parties to respect and ensure the rights of children without discrimination of any kind, and to take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the circumstances of the child's parents. Under Article 3 of the said Convention, in all actions by, amongst others, courts and administrative authorities, the best interests of the child must be a primary consideration. Children should never be punished or discriminated against because of what the child's family constellation looks like or how the family originated.
Amendment 97 #
Proposal for a regulation
Recital 18
Recital 18
(18) Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (‘European Convention of Human Rights’) lays down the right to respect for private and family life, while Article 1 of Protocol No. 12 to the said Convention provides that the enjoyment of any right set forth by law must be secured without discrimination on any ground, including birth. The European Court of Human Rights has interpreted Article 8 of the Convention as requiring all States within its jurisdiction to recognise the legal parent-child relationship established abroad between a child born out of surrogacy and the biological intended parent, and to provide for a mechanism for the recognition in law of the parent-child relationship with the non-biological intended parent (for example through the adoption of the child)54 . It is of great importance to the European way of life that the European Union facilitates the recognition of parentage regardless of how the child was born or what the child's family looks like, such as the gender of the parents and without any special procedure being required. _________________ 54 For example, Mennesson v. France (Application no 65192/11, Council of Europe: European Court of Human Rights, 26 June 2014) and Advisory Opinion P16- 2018-001 (Request no. P16-2018-001, Council of Europe: European Court of Human Rights, 10 April 2019).
Amendment 99 #
Proposal for a regulation
Recital 19
Recital 19
(19) The Court of Justice has confirmed that the essential characteristics of Union law have given rise to a structured network of principles, rules and mutually interdependent legal relations linking the Union and its Member States, and its Member States with each other. This legal structure is based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the Union is founded, as stated in Article 2 TEU. That premiss implies and justifies the existence of mutual trust between the Member States that those values will be recognised. In accordance with the principle of mutual recognition, parenthood established in one Member State shall also be recognised in other Member States without any special procedure being required irrespective of the gender of the parents.
Amendment 101 #
Proposal for a regulation
Recital 20
Recital 20
(20) Pursuant to Article 2 of the Treaty on European Union (‘TEU’), equality and non-discrimination are amongst the values on which the Union is founded and which are common to the Member States. Article 21 of the Charter prohibits discrimination on grounds of, amongst others, birth. Article 3 TEU and Article 24 of the Charter provide for the protection of the rights of the child, and Article 7 of the Charter provides for everyone’s right to respect for their private and family life. Children's rights must never be discriminated against because of how the child was born or what the child's family composition looks like.
Amendment 106 #
Proposal for a regulation
Recital 22
Recital 22
(22) To achieve its aims, it is necessary and appropriate for this Regulation to bring together common rules on jurisdiction, applicable law, recognition or, as the case may be, acceptance of court decisions and authentic instruments on parenthood, regardless of how the child came into being or what the family constellation looks like, as well as rules on the creation of a European Certificate of Parenthood in a Union legal instrument which is binding and directly applicable.
Amendment 109 #
Proposal for a regulation
Recital 24
Recital 24
(24) For the purposes of this Regulation, parenthood, also referred to as filiation, may be biologic, genetic, by adoption or by operation of law. Also for the purposes of this Regulation, parenthood should mean the parent-child relationship established in law, and should cover the legal status of being the child of a particular parent or parents. This Regulation should cover the parenthood established in a Member State of both minors and adults, including a deceased child and a child not yet born, whether to a single parent, a de facto couple, a married couple or a couple in a relationship which, under the law applicable to such relationship, has comparable effects, such as a registered partnership. This Regulation should apply regardless of the nationality of the child whose parenthood is to be established, and regardless of the nationality of the parents of the child. This regulation should apply regardless of how the child came into being or what the family constellation looks like. The term ‘parent’ in this Regulation should be understood, as applicable, as referring to the legal parent, the intended parent, the person who claims to be a parent or the person in respect of whom the child claims parenthood.
Amendment 113 #
Proposal for a regulation
Recital 31
Recital 31
(31) The requirements for the recording of parenthood in a register should be excluded from the scope of this Regulation. It should therefore be the law of the Member State in which the register is kept that should determine under what legal conditions and how the recording must be carried out, and which authorities are in charge of checking that all requirements are met and that the documentation presented or established is sufficient or contains the necessary information. In order to avoid duplication of documents, the national registration authorities should accept the documents drawn up in another Member State by the competent authorities whose circulation is provided for by this Regulation. In particular, the European Certificate of Parenthood issued under this Regulation should constitute a valid document for the recording of parenthood in a register of a Member State. As the procedure for the issuance of the European Certificate of Parenthood and its contents and effects should be uniform in all Member States as set out in this Regulation, and the European Certificate of Parenthood should be issued in conformity with the rules on jurisdiction and applicable law laid down in this Regulation, the authorities involved in the registration should not require that the European Certificate of Parenthood be first transposed into a national document on parenthood. This should not preclude the authorities involved in the registration from confirming the conditions necessary to establish the authenticity of the European Certificate of Parenthood or from asking the person applying for registration to provide such additional information, in a way that does not add bureaucratic burden, as required under the law of the Member State in which the register is kept, provided that information is not already included in the European Certificate of Parenthood. The competent authority may indicate to the person applying for registration how the missing information can be provided. The effects of recording the parenthood in a register (for example, depending on the national law, whether registration establishes parenthood or only provides evidence of the parenthood already established) should also be excluded from the scope of this Regulation and be determined by the law of the Member State in which the register is kept. The document obtained by the parents should be available in all EU official languages to ensure and guarantee comprehension by the respective national authorities and that the language used should be gender inclusive.
Amendment 119 #
Proposal for a regulation
Recital 49
Recital 49
(49) Proceedings on the establishment of parenthood under this Regulation should, as a basic principle, provide children below the age of 18 years who are subject to those proceedings and who are capable of forming their own views, in accordance with the case law of the Court of Justice, with a genuine and effective opportunity to express their views and, when assessing the best interests of the child, due weight should be given to those views. This Regulation should, however, leave the question of who will hear the child and how the child will be heard to be determined by the national law and procedure of the Member States. In addition, while remaining a right of the child, hearing the child should not constitute an absolute obligation although it should be assessed taking into account the best interests of the child. t is already an established concept that all EU countries recognise that children have the right to a personal relationship and direct contact with both parents whatever their gender may be, even if the parents live in different countries. In addition, while remaining a right of the child, hearing the child should not constitute an absolute obligation although it should be assessed taking into account the best interests of the child. Notes that the national, local or other administrative court shall decide in the best interests of the child on parent’s (irrespective of their gender) custody rights, visiting arrangements and determine the child's place of residence.
Amendment 121 #
Proposal for a regulation
Recital 52
Recital 52
(52) By way of exception, where the law applicable as a rule results in the establishment of parenthood as regards only one parent (for example, only the genetic parent in a same-sex couple), either of two subsidiary laws, namely the law of the State of nationality of either parent or the law of the State of birth of the child, may be applied to establish parenthood as regards the second parent (for example, the non-genetic parent in a same-sex couple). Given that, in those cases, both the parenthood as regards one parent and the parenthood as regards the other parent would be established in accordance with one of the laws designated as applicable by this Regulation, the parenthood as regards each parent, including where established by the authorities of different Member States, should be recognised in all other Member States under the rules of this Regulation where the parenthood as regards each parent has been established by the authorities of a Member State whose courts have jurisdiction under this Regulation. Simplifying the processes for recognising parenthood for same-sex couples in the European Union is in the best interest of the children and their families regardless of the family’s gender composition.
Amendment 123 #
Proposal for a regulation
Recital 56
Recital 56
(56) Considerations of public interest should allow courts and other competent authorities establishing parenthood in the Member States to disregard, in exceptional circumstances, certain provisions of a foreign law where, in a given case, applying such provisions would be manifestly incompatible with the public policy (ordre public) of the Member State concerned. However, the courts or other competent authorities should not be able to apply the public policy exception in order to set aside the law of another State when doing so would be contrary to the Charter and, in particular, Article 21 thereof, which prohibits discrimination. Underlines that EU member states need to recognise a parent-child relationship for the purposes of permitting a child to exercise without impediment, with each parent, the right to move and reside freely within the territory of all the member states as guaranteed in Article 21(1) Treaty on the Functioning of the European Union (TFEU), the application of which is key to ensuring gender equality.
Amendment 127 #
Proposal for a regulation
Recital 60
Recital 60
(60) Mutual trust in the administration of justice in the Union justifies the principle that court decisions establishing parenthood in a Member State should be recognised in all Member States without the need for any recognition procedure, as it is important to avoid unnecessary administration that delays the procedure which would divert valuable time away from promoting gender equality. In particular, when presented with a court decision given in another Member State establishing parenthood that can no longer be challenged in the Member State of origin, the competent authorities of the requested Member State should recognise the court decision by operation of law without any special procedure being required and update the records on parenthood in the relevant register accordingly.
Amendment 130 #
Proposal for a regulation
Recital 62
Recital 62
(62) The recognition in a Member State of court decisions on parenthood matters given in another Member State should be based on the principle of mutual trust. Therefore, the grounds for non-recognition should be kept to the minimum in the light of the underlying aim of this Regulation, which is to facilitate the recognition of parenthood and to protect effectively children’s rights and the best interests of the child in cross-border situations. All families, regardless of how they came about, must have the right to be a family irrespective of the gender composition on equal terms in society.
Amendment 131 #
Proposal for a regulation
Recital 69
Recital 69
(69) Authentic instruments which have no binding legal effect in the Member State of origin but which have evidentiary effects in that Member State should have the same evidentiary effects in another Member State as they have in the Member State of origin, or the most comparable effects. When determining the evidentiary effects of such an authentic instrument in another Member State or the most comparable effects, reference should be made to the nature and the scope of the evidentiary effects of the authentic instrument in the Member State of origin. The evidentiary effects which such an authentic instrument should have in another Member State will therefore depend on the law of the Member State of origin. Notes that evidentiary effects should not be hindered by linguistic barriers and that language in all documents shall be gender inclusive.
Amendment 136 #
Proposal for a regulation
Recital 76
Recital 76
(76) In order for the recognition of the parenthood established in a Member State to be settled speedily, smoothly and efficiently, children or their parent(s) should be able to demonstrate easily the children’s status in another Member State. It is an important step to reduce bureaucracy and increase access to free movement in the European Union as a means of promoting gender equality. To enable them to do so, this Regulation should provide for the creation of a uniform certificate, the European Certificate of Parenthood, to be issued for use in another Member State. In order to respect the principle of subsidiarity, the European Certificate of Parenthood should not take the replace of internal documents which may exist for similar purposes in the Member States.
Amendment 137 #
Proposal for a regulation
Recital 77
Recital 77
(77) The authority that issues the European Certificate of Parenthood should have regard to the formalities required for the registration of parenthood in the Member State in which the register is kept. The authority should facilitate and work for minimal administrative burden for the families of all gender compositions who apply for the declaration. For that purpose, this Regulation should provide for an exchange of information on such formalities between the Member States.
Amendment 138 #
Proposal for a regulation
Recital 99 a (new)
Recital 99 a (new)
(99a) Underlines that the lack of parental recognition can ensure harmful ramifications for children within families in all their diversity, such as depriving them of their rightful succession, or their right to have any one of their parents act as their legal representative in matters such as medical treatments, childcare and education.
Amendment 139 #
Proposal for a regulation
Recital 99 b (new)
Recital 99 b (new)
(99b) Underscores how some types of families often face a burden in establishing filiation through court systems and the legal costs that such a process entails. Whereas having legal certainty on recognition will reduce serious concerns and problems that some families face when traveling or moving in the EU.
Amendment 140 #
Proposal for a regulation
Recital 99 c (new)
Recital 99 c (new)
(99c) The parents' gender should not be an obstacle to the child's right to guardianship. The fact that children of same-sex parents fall outside the social system creates legal uncertainty, and the children's rights must be guaranteed. LGBTI families have the same rights to move freely across international borders as any other family.
Amendment 141 #
Proposal for a regulation
Recital 99 d (new)
Recital 99 d (new)
(99d) The woman must always have the right to decide over her own body, also in the case of altruistic surrogacy.
Amendment 153 #
Proposal for a regulation
Article 22 – paragraph 2
Article 22 – paragraph 2
2. Paragraph 1 shall be applied by the courts and other competent authorities of the Member States in observance of the fundamental rights and principles laid down in the Charter, in particular Article 21 thereof on the right to non- discrimination, as long as the aforementioned Member State courts have not been found to infringe EU rule of law including in cases of LGBTI homophobia, or do not meet the standards for judicial independence.
Amendment 166 #
Proposal for a regulation
Article 48 – paragraph 2 – point b
Article 48 – paragraph 2 – point b
(b) another authority which, under national law, has competence to deal with parenthood matters which is recognised and approved by European regulators.
Amendment 167 #
Proposal for a regulation
Article 49 – paragraph 3 – point h
Article 49 – paragraph 3 – point h
(h) any other relevant information which the applicant deems useful for the purposes of the issuance of the Certificate.
Amendment 168 #
Proposal for a regulation
Article 49 – paragraph 3 – point h a (new)
Article 49 – paragraph 3 – point h a (new)
(ha) the certificate shall be available in all EU official languages and braille as well as be gender inclusive.
Amendment 171 #
Proposal for a regulation
Article 55 – paragraph 3 a (new)
Article 55 – paragraph 3 a (new)
3a. The issuing authority shall in cases of name changes comply with the national law and issue new certificates with all requested legal name changes regardless of gender.
Amendment 172 #
Proposal for a regulation
Article 56 – paragraph 1 – subparagraph 3
Article 56 – paragraph 1 – subparagraph 3
The challenge shall be lodged before a court in the Member State of the issuing authority in accordance with the law of that Member State and where applicable in cooperation with national equality bodies.