Parental responsibility

Parental responsibility means all rights and obligations towards a child and its assets. Although this concept varies between the Member States, it usually covers custody and visiting rights.

If you are an international couple with one or more children and are now separating, you will need to agree the custody arrangements for them.


Where to start?

What is custody? What are visiting rights?

As long as the parents live together, they usually hold custody over their children jointly. However, if the parents get divorced or split up, they need to decide how this responsibility will be exercised in the future.

The parents may decide that the child shall live alternately with both parents, or with one parent. In the latter case, the other parent usually has a right to visit the child at certain times.

Custody rights also cover other rights and duties linked to the education and care of the child, including the right to look after the child and his/her assets. The parents usually have the parental responsibility for a child, but parental responsibility may also be given to an institution to which the child is entrusted.

Who decides on the custody and visiting rights?

The parents may decide on these matters by mutual agreement. A mediator or lawyer can help if the parents do not manage to reach an agreement. Visit the link at the bottom of this page to find a mediator.

If the parents are unable to reach an agreement they may have to go to court. The court may decide that both parents shall have custody over the child (joint custody) or that one of the parents shall have custody (single custody). In the case that only one parent has custody, the court may decide on visiting rights for the other parent.

In the case of an international couple, EU rules determine which court has the responsibility to deal with the case. Visit the link at the bottom of this page to find the responsible court.

The main aim is to avoid both parents addressing the court in their own country and two decisions being issued for the same case. The principle is that the responsible court is the court in the country where the child habitually resides.

Will the decision of the court be enforced in the other EU country?

A mechanism for the recognition and enforcement of decisions ensures that the decision of the court is applied in other EU countries once it has been issued. This makes it easier for those with parental responsibility to exercise their rights.

In particular, a judgment on access rights will be recognised in another EU Member State without any special procedure being required, thus supporting the relationship between the child and both parents.

Which EU rules apply?

The rules settling cross-border matters between children and their parents are part of the Link opens in new windowBrussels IIa Regulation. These rules apply equally to all children, whether they are born in wedlock or not. The Brussels IIa Regulation is the cornerstone of EU judicial cooperation in matrimonial matters and matters of parental responsibility. The Regulation has applied since 1 March 2005 in all EU countries except Denmark.

Please select the relevant country's flag to obtain detailed national information.

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This page is maintained by the European Commission. The information on this page does not necessarily reflect the official position of the European Commission. The Commission accepts no responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice with regard to copyright rules for European pages.

Last update: 16/11/2017

Parental responsibility - Bulgaria

TABLE OF CONTENTS


1 What does the legal term “parental responsibility” mean in practical terms? What are the rights and obligations of a holder of parental responsibility?

The legal terms used in the Bulgarian legislation for parental responsibility and custody are ‘parental rights and duties’ and ‘exercise of parental rights’. The concept includes all the rights and duties a parent has in relation to children under the age of majority.

Bulgarian law makes a distinction between minors under the age of 14 and minors who are between 14 and 18 years of age. Parental rights are exercised in relation to both age groups of children.

In the event of adoption, the rights and duties that apply to the adoptee and his or her descendants, on the one hand, and the adopter and his or her relatives, on the other hand, are the same as those between relatives of kin, whereas the rights and duties between the adoptee and his or her descendants and their relatives of kin are terminated.

In the divorce judgment , the court is also obliged to rule on the exercise of parental rights, personal relationships and maintenance of the children born of the marriage, and on the use of the family home, taking into account the children’s best interests.

The court decides which spouse will be granted parental rights and orders measures in relation to the exercise of these rights, the personal relationships between the children and their parents and the maintenance of the children. When choosing which parent is to exercise parental rights, the court assesses all circumstances, with the children’s best interests in mind, and listens to the parents and the children, provided they are over the age of 10.

2 As a general rule, who has the parental responsibility over a child?

The general rule is that both parents exercise parental rights jointly and severally.

The law contains explicit provisions on grandparents’ rights to maintain contact with the child.

Children under the age of majority are obliged to live with their parents, unless important reasons warrant otherwise. In the event of deviation from this obligation, the court orders the child’s return to the parents, at the request of the parents and after hearing the child if it is over the age of 10.

Each parent may represent children below the age of 14 on his or her own and give consent to legal action for children aged between 14 and 18 only in their best interests.

Immovable and movable property of children below the age of majority, except for perishables, may be alienated, encumbered with liens or, generally, disposed of with permission from the district court at their habitual residence only if necessary or obviously to the benefit to the children. Gifts, waivers, lending and securing other person’s debts with a pledge, mortgage or guarantee given by children below the age of majority are null and void.

3 If the parents are unable or unwilling to exercise parental responsibility over their children, can another person be appointed in their place?

If a parent’s conduct poses a threat to the child’s person, upbringing, health or property, the district court takes the relevant measures in the child’s best interests on its own initiative or at the request of the other parent or the public prosecutor, placing the child in appropriate accommodation, if necessary.

These measures are also taken if the parent is unable to exercise parental rights due to a persistent physical or mental illness, long-term absence or other objective reasons. The parent may be divested of parental rights in the following particularly serious cases: the parent does not take care of the child and fails to make maintenance payments on a long-term basis and without valid reason, or the parent has placed the child in a specialised institution and has failed to retrieve the child within six months of the date on which they were supposed to.

Court proceedings on the termination of parental rights are brought at the district court on its own initiative or at the request of the other parent or the public prosecutor. In all cases of restriction or termination of parental rights, the court also rules on the measures concerning the personal relationships between parents and children.

The court may reinstate parental rights in the event of new circumstances or at the parent’s request.

The court notifies the municipality at the parent’s place of residence ex officio of the termination of parental rights or their subsequent reinstatement for the purposes of appointing a custodian for minors aged between 14 and 18 or a guardian for minors under 14.

At the request of the Social Welfare Directorate the court may issue an order for a child to be housed outside the family if the parents are deceased, unknown, divested of parental rights, exercising restricted parental rights or failing to take care of the child on a long-term basis for objective reasons or without valid reason, where the child is a victim of domestic violence and there is a serious threat to his or her physical, mental, moral, intellectual and social development. The child is placed in a social institution or with a foster family, including in the cases under Article 11 of the 1996 Hague Convention on the protection of children.

The court may order a child to be placed with relatives or a foster family or in a specialised institution. Pending the court order, the Social Welfare Directorate covering the current address of the child places the child under a temporary accommodation administrative procedure.

4 If the parents divorce or split up, how is the question of parental responsibility determined for the future?

If parents living together disagree on issues in relation to parental rights, the dispute is referred to the district court, where the parents and, if necessary, the child are heard. The court judgment may be appealed in accordance with the general rules.

If parents do not live together and cannot reach an agreement on who will take custody of the child, the dispute is settled by the district court of the area in which the child is habitually resident, after hearing him or her, provided that he or she is at least 10 years old. The court judgment may be appealed in accordance with the general rules.

5 If the parents conclude an agreement on the question of parental responsibility, which formalities must be respected to make the agreement legally binding?

Parents may conclude out-of-court agreements on the granting and exercise of parental rights and the arrangements for contacts with the parent who does not have parental rights, but these agreements are not legally binding. Notwithstanding the existence of an out-of-court agreement, either parent may bring a case on parental rights or contacts with the child to the court and the court will rule on how parental rights will be exercised from that point of time onwards, irrespective of the out-of-court agreement. The legal framework is also the same for the child’s contacts with the parent who does not have custody and does not live with him or her.

6 If the parents cannot come to an agreement on the issue of parental responsibility, what are the alternative means for solving the conflict without going to court?

In accordance with the Mediation Act, family disputes may be the subject of mediation but the agreement reached on parental rights becomes legally binding only after its explicit approval by the court in accordance with the Code of Civil Procedure.

7 If the parents go to court, what issues can the judge decide upon relating to the child?

The judge may decide upon any issue brought to the court, including the place where the child is habitually resident, which parent will exercise parental rights, what arrangements will exist for contacts between the child and the other parent, the parent’s rights to visit/access, the obligation to make maintenance payments for the child, the choice of school, the child’s name, etc. See the answers to questions 3 and 4.

8 If the court decides that one parent shall have sole custody of a child, does this mean that he or she can decide on all matters relating to the child without first consulting the other parent?

Generally, the parent exercising parental rights makes decisions on the child’s daily life, including , for instance, what school the child will attend. There are some cases in which the consent of both parents is required, for instance, where identity documents are issued for the child, or where he or she is leaving the jurisdiction, regardless of the duration or purpose of travel, including holidays.

9 If the court decides that the parents shall have joint custody of a child, what does this mean in practice?

When the parents do not share a residence, the court is obliged to issue an order on which parent will have parental rights and how contacts with the other parent are maintained. Without prejudice to the above, there are no restrictions on a court agreement between the parents on more extensive arrangements for contact between the child and the other parent over and above the usual practices. As agreed in case-law and generally accepted by parties to matrimonial cases, the usual arrangements for the child to spend time with the other parent are two or more non-working days per month and a fixed number of weeks during school holidays.

10 To which court or authority should I turn if I want to lodge an application on parental responsibility? Which formalities must be respected and which documents shall I attach to my application?

The competent court is the district court of the area in which the defendant is habitually resident. If the application is linked to a child maintenance claim, the claimant may also lodge the application with the court of the area in which he or she is habitually resident.

11 Which procedure applies in these cases? Is an emergency procedure available?

Cases concerning parental rights follow the general procedural rules.

If the matter is examined within the framework of a pending divorce case, parents may request the court to order temporary measures for the exercise of parental rights over the child and the arrangements for contacts with the other parent.

12 Can I obtain legal aid to cover the costs of the procedure?

The parties to the case can obtain legal aid under the general terms and conditions for granting legal aid under the Legal Aid Act.

13 Is it possible to appeal against a decision on parental responsibility?

Decisions handed down by the district court are subject to appeal before the regional court in accordance with the general rules within two weeks of receiving a copy of the decision.

14 In certain cases, it may be necessary to apply to a court to have a decision on parental responsibility enforced. Which court should I use in such cases and which procedure applies?

Court judgments are enforced in accordance with the Code of Civil Procedure. It contains explicit provisions on the duty to perform or refrain from certain actions and on the duty to hand over the child. The judgment is enforced by a public or private bailiff chosen by the applicant.

15 What should I do to have a decision on parental responsibility that is issued by a court in another Member State recognised and enforced in this Member State?

The applicable law is Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, and Article 621 of the Code of Civil Procedure (in force since 24 July 2007).

16 To which court in this Member State should I turn to oppose the recognition of a decision on parental responsibility issued by a court in another Member State? Which procedure applies in these cases?

The applicable law is Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, and Article 622 of the Code of Civil Procedure (in force since 24 July 2007).

General jurisdiction lies with the district court in the area in which the other party is habitually resident or, if the latter has no permanent address within Bulgaria, in the area in which the party concerned is habitually resident or, if the party concerned is not habitually resident in Bulgaria, Sofia City Court.

The application for recognition and enforcement of a judgment issued by a foreign court or a decision of another foreign authority on the exercise of parental rights or restoration of the exercise of parental rights in the event of wrongful removal of a child in accordance with the 1980 European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children, which was concluded in Luxembourg on 20 May 1980 (ratified by law, State Gazette (SG) No 21 of 2003 (SG No 104 of 2003) (‘the Luxembourg Convention’), is filed with Sofia City Court. The Court holds a public session with the participation of the Ministry of Justice or the applicant, the parties to the foreign judgment or decision and a public prosecutor. The Court hears the child, if requested by the Social Welfare Directorate of the municipality of the current address of the child. The procedure for recognising and enforcing a foreign judgment or decision is suspended in the following circumstances: there is a pending court case on the merit of the dispute and that case was brought after the procedure in the State where the relevant judgment or decision had been issued. The same procedure applies when another judgment or decision on the exercise of parental rights is in the process of being recognised and/or enforced by the Bulgarian courts. The relevant court is notified forthwith and the judge must rule within a month of the notice.

The court judgment has to be issued within a month of the date of the application. It is subject to appeal before Sofia Court of Appeal, whose judgment is final.

The procedure also applies to applications for the recognition and enforcement of decisions issued after the removal of a child if the decision finds that removal to be unlawful. The recognition and enforcement of a decision issued in another State that is a party to the Luxembourg Convention is rejected under Articles 8 and 9 if the requirements laid down in Article 10(1) of the Convention are met and accepted only insofar as it is enforceable in the State where it was approved. The same procedure applies to the cases under the Convention on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children.

17 Which law does the court apply in a proceeding on parental responsibility where the child or the parties do not live in this Member State or are of different nationalities?

The relationships between parents and a child are governed by the laws of the State of their habitual residence. If the parents and child do not share a common habitual residence, their relationships are governed by the laws of the State of the child’s habitual residence or nationality, whichever is more favourable to the child. Guardianship and custodianship matters are governed by the laws of the State in which the person under guardianship or custodianship is habitually resident. The relationships between the person under guardianship or custodianship and the guardian or custodian are governed by the laws that applied when the person was placed under guardianship or custodianship.


The national language version of this page is maintained by the respective EJN contact point. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. Neither the EJN nor the European Commission accept responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

Last update: 17/10/2016

Parental responsibility - Czech Republic

TABLE OF CONTENTS


1 What does the legal term “parental responsibility” mean in practical terms? What are the rights and obligations of a holder of parental responsibility?

The term “parental responsibility” is enshrined in the Civil Code (Act No 89/2012). This term includes a set of parents’ rights and obligations, composed of:

  • care for the child, including in particular care for his/her health and physical, emotional, intellectual and moral development,
  • protection of the child,
  • maintaining personal contact with the child,
  • ensuring his/her upbringing and education,
  • determining his/her place of residence,
  • representing the child and managing his/her assets.

Parental responsibility originates with the birth of the child and ends when the child gains full legal capacity. The duration and scope of parental responsibility may only be changed by a court of law. Parental responsibility is exercised by parents in accordance with the interests of the child. Before making a decision that impacts the interests of the child, the parents will inform the child of everything necessary to enable him/her to come to his/her own opinion about the given matter and to inform his/her parents of it; this does not apply if the child is not able to properly accept the information or is not able to make his/her own opinion or is not able inform his/her parents of his/her opinion. The parents will pay special attention to the child’s opinion and take the child’s opinion into account when making the decision. Parental responsibility relating to the person of the child is performed by the parents in a manner and in a scope corresponding to the child’s developmental level. If the parents are making a decision regarding the education or employment of the child, they will take into account his/her opinion, abilities and talents.

Until the child gains legal capacity, his/her parents have the right to guide the child using educational measures appropriate to his/her evolving abilities, including restrictions directed towards protecting the child’s morals, health and rights, as well as the rights of other persons and public order. The child must submit to these measures. Educational resources may only be used in a form and scope that is appropriate to the circumstances, does not endanger the health of the child or his/her development and does not prejudice the human dignity of the child.

It is understood that all minors who do not have full legal capacity are competent to perform legal acts appropriate to the intellectual and volitional maturity of minors of his/her age. Parents have the obligation and right to represent the child in legal proceedings for which the child is not legally competent. The parents represent the child jointly, however each of them may act separately; if one of the parents acts alone in a matter concerning the child vis-à-vis a third party, which is in good faith, it is understood that he/she is acting with the agreement of the other parent. A parent cannot represent a child if this could lead to a conflict of interests between him/her and the child, or between children of the same parents. In such a case a court will appoint a guardian for the child. If the parents cannot agree which of them should represent the child in legal proceedings, a court will decide – upon a petition by one of the parents – which of the parents will legally act on behalf of the child and in what manner.

The parents have the obligation and the right to manage the property of the child, in particular to administer it with due care. They must safely handle funds that may be considered not needed to cover expenditure connected with the child’s property. During legal proceedings that relate to individual parts of the child’s property, the parents will act as his/her representatives; a parent cannot represent a child if this could result in a conflict of interest between him/her and the child or between children of the same parents. In such a case a court will appoint the child a guardian. If a parent violates the obligation to care for the child’s property with due care, he/she will compensate the child for the damage incurred jointly and severally. If the parents do not agree on essential matters relating to the management of the child’s property, a court will decide upon a petition by one of the parents. The parents need the agreement of a court for legal acts that relate to existing or future property of the child or separate parts of such property, unless they are common matters, or even though exceptional they relate to negligible property values.

2 As a general rule, who has the parental responsibility over a child?

Parental responsibility is an obligation for both parents. Each parent has it unless he/she has been deprived of it. It is irrelevant whether the child’s parents are married or not, and whether the child was born in wedlock or out of it.

Parents exercise parental responsibility in mutual agreement. If a delay in taking a decision regarding a matter concerning the child could be dangerous, one of the parents may make the decision or give his/her consent alone; he/she must however inform the other parent about the state of affairs without delay. If one of the parents acts alone in a matter of the child in relation to a third party, which is in good faith, it is understood that he/she is acting with the agreement of the other parent. If the parents do not agree in a matter that is important for the child, in particular with respect to his/her interests, a court will decide, upon a petition by a parent; this will also apply if one parent is excluded from the decision-making about an important matter for the child by the other parent. Important matters are considered to be in particular the determination of the place of residence and the selection of education or the employment of the child, but not normal medical and similar procedures.

A court may decide to suspend parental responsibility if the parents are prevented from exercising their parental responsibility by a serious circumstance and if it can be considered that this is necessary in the interest of the child. If a parent does not exercise his/her parental responsibility properly and the interest of the child requires it, a court may restrict his/her parental responsibility, or restrict its performance, and at the same time determine the scope of such restriction. If a parent abuses his/her parental responsibility or its exercise, and/or neglects his/her parental responsibility or its exercise in a serious manner, a court may deprive him/her of his/her parental responsibility. If a parent commits an intentional crime against his/her child, or if a parent uses his/her child – who is not criminally responsible – to commit a crime, a court will evaluate in particular whether there are reasons to deprive the parent of his/her parental responsibility.

If one of the parents is dead or is not known, or if one of the parents does not have parental responsibility or his/her exercise of parental responsibility is suspended, the other parent will exercise parental responsibility; this will also apply if the parental responsibility or its exercise by one of the parents is restricted. If neither of the parents has full parental responsibility, if the exercise of both parents’ parental responsibility has been suspended, and/or if the parents’ parental responsibility is affected in one of the indicated manners, but each differently, a court will appoint a custodian for the child, who will have the obligations and rights of the parents or will exercise these obligations or rights instead of the parents. If parental responsibility is restricted or its exercise is restricted, a court will appoint a guardian for the child.

If a child is adopted, the rights and obligations arising from parental responsibility are transferred to the adopter at the moment the legal decision on adoption comes into force.

3 If the parents are unable or unwilling to exercise parental responsibility over their children, can another person be appointed in their place?

If a court decides to restrict the legal capacity of a parent, it will also decide on his/her parental responsibility. The exercise of parental responsibility by a minor who is a parent but who has not yet acquired full legal capacity through a declaration or marriage, is suspended until such time as he/she acquires full legal capacity; this will not apply in relation to the exercise of the obligations and rights of care for the child, unless a court as regards the person of the parent decides that the exercise of this obligation and this right is suspended until such time as the parent acquires full legal capacity. The exercise of the parental responsibility of a parent whose legal capacity has been restricted in this area is suspended for the duration of the restriction of his/her legal capacity, unless a court decides that the parent, in view of his/her person, will retain the exercise of the obligation and right of care for the child and personal contact with the child.

In the absence of both the parents who should perform full parental responsibility vis-à-vis their child, a court will appoint a custodian for the child. A custodian has vis-à-vis the child fundamentally all the obligations and rights of his/her parent, yet does not have a support and maintenance obligation vis-à-vis the child. In exceptional cases the range of obligations and rights may be defined otherwise taking into account the person of the custodian or the situation of the child, as well as the reason why the parents do not have all the obligations and rights. A custodian must have full legal capacity and his/her mode of life must guarantee that he/she is capable of properly performing this role. A court may also appoint two persons – who are as a rule married – to the role of custodian. If this is not contrary to the interests of the child, a court will appoint a person designated by a parent as custodian. Otherwise a court will appoint a relative or a person close to the child or his/her family as custodian, unless a parent expressly excludes such person. If there is no such person, a court will appoint another suitable person as custodian. If no natural person can be appointed as custodian for the child, the court will appoint an authority for the social and legal protection of children until such time that the court appoints a different custodian for the child or until a custodian accepts the role. A custodian is subject to supervision by the court. He/she will prepare a list of property both at the start and at the end of the role. He/she will regularly submit to the court reports about the child, his/her development, and accounts from the management of the property. Each decision by a custodian in other than regular matters must be approved by a court.

Another possibility is to place the child in foster care. Fostering is personal care for another person’s child; however, it does not involve accepting another’s child as one’s own as in the case of adoption. When bringing a child up, a foster parent exercises the obligations and rights of the parents within a reasonable scope. He/she is obliged and entitled to decide only about everyday matters concerning the child, to represent the child in these matters and to manage his/her property. he/she must inform the parents of the child about his/her important matters. If circumstances so demand, a court will determine additional obligations and rights of the foster parent. The parents of the child will retain their obligations and rights arising from parental responsibility, including the right to be in personal and regular contact, and the right to information about the child, with the exception of obligations and rights that the law determines for the foster parent, unless the court - for reasons worthy of special consideration – decides otherwise. A foster parent does not have a support and maintenance obligation toward the child.

A foster parent must guarantee proper care, be resident in the Czech Republic, and must agree with the entrusting of the child into his/her foster care. As a rule, he/she is a relative, but may also be another person from whom an authority for the social and legal protection of children has arranged foster care (for this purpose a regional court maintains evidence of applicants suitable to become foster parents). A court may entrust a child into foster care for a temporary period (for example for the duration of a parent’s stay in a treatment facility) as well as for an unspecified period of time. Foster care may thus address a crisis in the family or ensure care in an alternative family environment. To reduce the number of children placed into institutions or institution-type facilities, foster care takes precedence over institutional care. A foster parent receives foster care benefits from the state (for example a contribution towards the payment of the child’s needs, a contribution at the end of the foster care, foster parent remuneration etc.)

The Civil Code furthermore regulates the institute of custody of a child to another person in the event that neither of the parents or a custodian can personally care for the child. Such custody is not an alternative to foster care, or care that must precede adoption. It takes precedence over institutional care for the child. The carer must guarantee proper care, be resident in the Czech Republic and agree with the placement of the child into his/her personal care. The obligations and rights of the carer are defined by a court; otherwise foster care legislation is used as appropriate.

The parents, as the legal representatives, may – for handling the affairs of the child, unless these are matters of personal status – sign an agreement for representation by a person with expert knowledge, or for example by another suitable person. If the child signs an agreement for representation, this will have no influence on the legal representation of the child by the parents. If the legal and contractual representatives cannot agree, a court will decide in accordance with the interests of the child.

If the upbringing of the child or his/her physical, intellectual or mental state, and/or his/her proper development are threatened or disturbed to such an extent that is contrary to the interests of the child, and/or in the case of serious reasons for which the parents cannot ensure his/her upbringing, a court may order institutional care as a necessary measure. It will do so in particular in cases when earlier measures did not lead to remedy. During this, the court will always consider whether it is appropriate to give preference to entrusting the child to the care of a natural person. Institutional care can be ordered for a period of at most three years, while this may be extended (repeatedly) if the reasons for the ordering of the institutional care persist (always for a maximum of three years). If there are no longer reasons for which the institutional care was ordered, or if it is possible to provide other than institutional care for the child, the court will cancel the institutional care without delay and at the same time decide on who the child will be entrusted to next according to the circumstances.

4 If the parents divorce or split up, how is the question of parental responsibility determined for the future?

A decision about care for the child is an essential condition for divorce of his/her parents. When making the decision the court will consider the interest of the child; the court will only deviate from the mutual assent of the parents if necessary in the interest of the child. A court may place the child into the care of one of the parents or into shared custody or joint custody; a court may also place the child into the care of a person other than his/her parents if necessary in the interest of the child. The court will take into account the personality of the child, in particular his/her talents and capabilities in relation to developmental possibilities, and the lifestyles of his/her parents, as well as the emotional orientation and background of the child, the ability of each of the parents to provide upbringing, the current and anticipated stability of the educational environment in which the child should live, and the child’s emotional ties to his/her siblings, grandparents or other relatives and unrelated persons. The court will always take into account which of the parents has properly cared for the child so far and has properly heeded his/her emotional, intellectual and moral education, as well as which parent offers the child better opportunities for healthy and successful development. The court will also focus on the right of the child to care from both parents and to maintain regular personal contact with him/her, on the right of the other parent with whom the child will not be placed to regular information about the child, and the court will also take into account the ability of the parent to agree on the upbringing of the child with the other parent. The court may also decide to approve an agreement between the parents unless it is clear that the arranged method of performance of parental responsibility is not in accordance with the interest of the child.

If the parents of a minor who does not have full legal capacity do not live together, and if they cannot agree on the regulation of the care for such child, a court will decide on this without a petition. It will follow similar rules for decision-making on care for the child as in the case of his/her parents’ divorce.

The parent who has the child in his/her care, and the other parent, will decide together how the parent who does not have the child in his/her care will be in contact with the child. If the parents cannot agree, or it is required in accordance with the interest in the upbringing of the child and the relationships in the family, the court will regulate contact between the parent and the child. In justified cases the court may determine the location of contact between the parent and child. If necessary in the interest of the child, the court will restrict the right of a parent to personal contact with the child, and/or forbid such contract.

If circumstances change, a court will change the decision relating to the performance of obligations and rights arising from parental responsibility even without a petition.

5 If the parents conclude an agreement on the question of parental responsibility, which formalities must be respected to make the agreement legally binding?

In the case of divorce of the parents, the agreement between the parents on the method of performance of parental responsibility must regulate how each of the parents will care for the child after the divorce. In this agreement the parents may also regulate contact between the parents and the child. Such an agreement is subject to the agreement of a court, which will approve an agreement between the parents unless it is clear that the agreed method of exercise of parental responsibility is not in accord with the interests of the child. The same will apply for an agreement between the parents if the parents of the child do not live together.

6 If the parents cannot come to an agreement on the issue of parental responsibility, what are the alternative means for solving the conflict without going to court?

To protect the interests of the child, the court, during proceedings on care for a minor, will guide the parents towards finding a conciliatory solution. The court may impose participation in extrajudicial conciliation or mediation meetings or family therapy on the parents for a period of at most 3 months, or may impose on them meetings with an expert in pedopsychology.

Moreover, it is possible to use the services of so-called marriage and family counselling centres that provide help through qualified psychologists and social workers.

In addition, an authority for the social and legal protection of children may persuade or educate a parent who does not respect the rights of the child or the other parent (e.g., to care, to regular contact) about legislation and the consequences of his/her behaviour. An authority for the social and legal protection of children may also impose on the parents the obligation to use expert counselling if the parents are unable to resolve the problems connected with the upbringing of the child without expert counselling, in particular during disputes about modifying the child's upbringing or visitation rights.

7 If the parents go to court, what issues can the judge decide upon relating to the child?

On condition of compliance with the designated conditions a court may, at the request of the parents, decide in particular about the following matters relating to the relations between parents and children:

  1. rights of a personal nature (e.g., the right to determine the name and surname of the child or the right to give consent to the adoption of the child)
  1. care for the child and the regulation of contact with the child,
  1. alternative forms of care for the child (e.g., custodianship, custody of another person, foster care, institutional care),
  1. maintenance and support obligations,
  1. representation and management of the child's property, consent to legal actions by the child,
  1. on matters important for the child, where the parents cannot agree (important matters are considered to be in particular the determination of the place of residence and the selection of education or the employment of the child, but not normal medical and similar procedures).

Most commonly a court will decide to whom it will entrust the child, and potentially about regulation of contact with the child, and on maintenance and support.

8 If the court decides that one parent shall have sole custody of a child, does this mean that he or she can decide on all matters relating to the child without first consulting the other parent?

Care for the child is only part of the obligations and rights included in parental responsibility. If a parent who was not entrusted with the child’s care was not deprived of parental responsibility, nor was his/her parental responsibility restricted or suspended, he/she still performs it in relation to the other components of parental responsibility and does not lose the right to decide on important matters concerning the child. Parental responsibility is performed by the parents in mutual agreement and in accordance with the interest of the child. If there is the danger of default during decision-making regarding a matter concerning the child, one of the parents may make the decision or give his/her consent alone; he/she must however inform the other parent about the state of affairs without delay.

If the parents do not agree in a matter that is important for the child, in particular with respect to his/her interests, a court will decide, upon a petition by a parent; this will also apply if one parent is excluded from the decision-making about an important matter for the child by the other parent. A court will also decide upon a petition of a parent in a case in which the parents cannot agree which of them will represent the child during legal proceedings or in important matters relating to the management of the child’s property.

Parents must inform each other of everything important as regards the child and his/her interests.

9 If the court decides that the parents shall have joint custody of a child, what does this mean in practice?

The Civil Code differentiates between placing a child into the care of one of his/her parents, into shared custody or joint custody, or into the care of somebody other than his/her parents. When making a decision on entrusting a child into care, the court will decide in such a way as to meet the interests of the child. A court may waive a decision on shared custody or joint custody if the parents are able to communicate and cooperate together.

Joint custody (joint upbringing)

This form of regulation of care for the child means that here there is no specific decision on entrusting a child into the care of one of the parents. In practice this means that in joint custody one parent may e.g., secure the educational needs of the child and the other his/her sports activities and/or one parent focuses on the language studies of the child while the other parent focuses on other extracurricular activities of the child. Both parents share in the provision of health care and the material needs of the child (e.g., cooking, cleaning, clothing, etc.). If a child is to be entrusted to joint custody, it is necessary that the parents agree with it.

Shared custody (alternate upbringing)

Shared custody means that the child is alternately placed into the care of one of the parents for a precisely determined period of time. A court will also define the rights and obligations exercised during these time periods.

10 To which court or authority should I turn if I want to lodge an application on parental responsibility? Which formalities must be respected and which documents shall I attach to my application?

A petition that relates to parental obligations and rights must be made at the district court (in Prague at a district court, in Brno at the Municipal Court) in whose jurisdiction the minor resides and, if he/she does not have a permanent address, then at the district court in whose jurisdiction he/she is living. The court may, in matters relating to minors, also make decisions without a petition.

The requisites of a petition depend on the type of petition. It is however always necessary to indicate the name, surname, and address of the participants, or the birth ID numbers of the participants and their representatives, a depiction of the decisive facts, indication of the evidence on which the petitioner relies, and it must be clear from it what the petitioner is seeking and to which court the petition is addressed.

A petition must contain all the important documents relating to the matter in question – e.g., birth certificate, marriage certificate, any previous court decisions related to the child and so on. The proposal should be submitted in paper form in the required amount of copies so that one copy remains at the court and each participant receives a copy, if necessary.

11 Which procedure applies in these cases? Is an emergency procedure available?

A court may commence proceedings in matters of care of a court for a minor even if no petition has been lodged.

Using a preliminary ruling a court may, even before the issue of a decision on the merits of the case, if necessary for the provisional regulation of the relations of the participants, or if there is concern that the enforcement of a court decision is threatened, impose on a participant to the proceedings the payment of essential alimony and/or entrust the child into the care of one of the parents, or a person determined by the court. A preliminary ruling is usually issued upon a petition, however, if it is possible to commence proceedings on the merits of the case (hence also proceedings relating to care by the court of a minor) without a petition, a preliminary ruling may also be ordered without a petition. The court that is competent for the proceedings in the matter is responsible for ordering a preliminary ruling, unless the law provides otherwise. A petition for the order of a preliminary ruling must contain the requisites under Section 42 (4) and under Section 75 of the Civil Procedure Code (Act No 99/1963, as amended), meaning in particular: information regarding the court to which the petition applies; who is making the petition and what it concerns, meaning an account of the facts that would justify such preliminary ruling as proposed; what the petition should achieve, meaning which preliminary ruling the petitioner is seeking; an account of the fact that it is necessary to provisionally regulate the relations of the participants or that there is concern that the enforcement of a court decision may be threatened, and also an indication of the date on which the petition was prepared and the signature of the petitioner or his/her representative. Documents that the petitioner refers to must be attached to the petition. Generally speaking, for preliminary rulings, the situation is that to secure compensation for damage or other losses that would occur because of the preliminary ruling, the petitioner must deposit, at the latest on the same day on which he/she submitted to the court the petition for the preliminary ruling, security to the determined amount. However, in the case of a preliminary ruling in the matter of maintenance and support or a preliminary ruling that a court may impose even without a petition, the deposit of security is not required. A court will decide on a preliminary ruling without delay. If there is no danger of default, a court may decide on a petition for a preliminary ruling within 7 days after it was submitted. A court will decide without hearing the participants. When ordering a preliminary ruling a court will impose on the petitioner that he/she must submit to the court a petition for the commencement of proceedings within a deadline imposed on him/her. It may also determine that a preliminary ruling will only last for a specific period of time.

The Act on Special Court Proceedings (Act No 292/2013, as amended) regulates a special preliminary ruling for a case in which a minor is in a situation of a lack of proper care irrespective of whether there is or is not a person who has the right to care for the child, or if the life of the child, his/her normal development or other important interest is seriously threatened or has been disrupted. In such a case a court, through a preliminary ruling that the court may impose only upon a petition by an authority for the social and legal protection of children, will regulate the relations of the child for an essential time by ordering that the child be placed in a suitable environment indicated in the decision. Through such a preliminary ruling it is possible to place a child in foster care for a provisional time for which the parent cannot look after the child for serious reasons, or after its expiration the child can be placed into care before adoption, have the parents consent to adoption, or decide that the parents’ consent to adoption is not needed. The court will decide on a petition for a preliminary ruling without delay, but at the latest within 24 hours of its submission. The decision will be enforced immediately after it is ordered, while the court will cooperate in relation to its performance with the applicable public authorities.

12 Can I obtain legal aid to cover the costs of the procedure?

Under the Act on Court Fees (Act No 549/1991, as amended) proceedings relating to guardianship and custody of courts for minors are exempt from fees. This means that a petitioner who submits a petition relating to parental obligations and rights is not obligated to pay court fees.

Under certain conditions it is possible to appoint a legal representative free of charge or for a reduced fee. A court will appoint a representative upon request from a participant regarding whom it can be anticipated that the court will completely or partially waive his/her court fees, if this is necessary for example to protect his/her interests. If required to protect the interests of the participant, he/she will be appointed a lawyer. The appointment of a representative must be justified by the situation of the participant (in practice this may be adverse financial circumstances or an adverse social situation, while it is always necessary to take into account the specific circumstances of the case) and there must be no arbitrary or manifestly unsuccessful enforcement or protection of rights.

The Act on Provision of Legal Aid in Cross-border Disputes within the European Union (Act No 629/2004, as amended) regulates access to legal aid for legal proceedings in a European Union Member State, in which a natural person resident in a different Member State takes part. This aid is related to legal proceedings in the trial proceedings and enforcement phases.

The Act on the Legal Profession (Act No 85/1996, as amended) determines the conditions under which it is possible to request the free appointment of legal counsel directly by the Czech Bar Association.

13 Is it possible to appeal against a decision on parental responsibility?

Yes, it is possible to appeal against a decision relating to parental responsibility. District courts are courts of first instance for the management of the rights and obligations arising from parental responsibility. Regional courts (or the Municipal Court in Prague) decide on appeals against decisions of courts of first instance. An appeal against a court's decision may be lodged within 15 days from receipt of the written decision by the court whose decision is being appealed and, unless prohibited by law (e.g., it is not possible to lodge an appeal against a court decision approving agreement between the parents on child care). An appeal is also considered to be lodged on time even after the expiry of the fifteen-day period if the appellant was following incorrect information from the court of appeal.

It should be emphasized that some decisions may be provisionally enforceable – they can thus be enforced even though was appeal has been lodged against them. Decisions imposing the performance of maintenance and decisions to extend the duration of an educational measure through which a child was temporarily taken from the custody of his/her parents or another person are provisionally enforceable.

14 In certain cases, it may be necessary to apply to a court to have a decision on parental responsibility enforced. Which court should I use in such cases and which procedure applies?

In the Czech Republic it is necessary to submit a petition for the enforcement of a decision relating to care for a minor at a court. The procedure applied for the enforcement of a decision is subject to the Act on Special Court Proceedings (Act No 292/2013, as amended).

The general court of the minor is competent for such proceedings, which is the district court (district court in Prague, the Municipal Court in Brno) in whose jurisdiction the minor is resident based on agreement between the parents or decision by a court, or other decisive facts. The petition must contain all the necessary information (the entitled and the obligated parties, the scope and content of the obligation of the obligated party and the deadline for compliance with the applicable obligation and specification of the so-called executionary title – the decision that will be enforced).

Before ordering the performance of a decision the court may, if it sees special reasons for doing so, and/or if the obligated party was not informed about the consequences of failure to comply with an obligation, call the obligated party to comply with the decision or agreement and inform him/her of the possibilities for the enforcement of the decision through imposing fines or the removal of the child. The court may also request the relevant authority for the social and legal protection of children to lead the obligated party to comply with his/her obligations without the need to order the enforcement of the decision.

If the person does not comply with his/her obligation even after instruction from the court, the court will order the enforcement of the decision through the imposition of a fine, and this may be done repeatedly. The amounts of the individual fines may not exceed CZK 50,000. Other measures that the court may order include a meeting with a mediator, a meeting with an expert in pedopsychology or the determination of a plan for an acclimatisation regime to facilitate gradual contact between the child and a person entitled to be in contact with him/her.

If, in spite of the implementation of the indicated measures, the obligations are not complied with or it is clear from the circumstances that this approach has not led to compliance with obligations, the court will order in exceptional cases the enforcement of a decision to remove the child from the person with whom the child should not be according to the agreement or decision. The decision through which the decision to remove the child was ordered will be delivered to the obligated party only during the enforcement.

15 What should I do to have a decision on parental responsibility that is issued by a court in another Member State recognised and enforced in this Member State?

Decisions relating to parental responsibility issued by courts in European Union Member States are recognised in the Czech Republic in accordance with Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (“Regulation No 2201/2003”), without the need for special proceedings. However, any person with a legal interest may turn to a court with a petition for the issue of a decision on the recognition or non-recognition of the decision. In the Czech Republic district courts (district courts in Prague, the Municipal Court in Brno) are competent for such proceedings in the first instance. The competent court is the district court that is the general court of the petitioner, otherwise the district court within whose jurisdiction the situation for which recognition is important occurred or may occur.

Before a decision in matters of parental responsibility issued in a different Member State can be enforced in the Czech Republic, it must be declared enforceable according to a special procedure in accordance with Regulation No 2201/2003 indicated above. A petition for a declaration of enforceability is submitted in the Czech Republic to the locally competent district court (district courts in Prague, the Municipal Court in Brno). Local competence is determined in accordance with Regulation No 2201/2003 according to the usual place of residence of the person against whom the enforcement is sought, or according to the usual place of residence of the child; if neither of these places is found in the Member State where enforcement will take place, local competence will be determined according to the location of enforcement of the decision.

A decision on the right to contact with a child and a decision ordering the return of a child issued based on Art. 11 (8) of Regulation No 2201/2003 are, pursuant to Art. 41 and 42 of Regulation No 2201/2003, enforceable in a different Member State without the need for a declaration of enforceability and without the possibility of an objection against recognition of the decision, if the decision was certified in the Member State of origin using a standardised form contained in an annex to Regulation No 2201/2003.

It is necessary to attach to a petition for the recognition or non-recognition of a decision and a declaration of a decision as enforceable one copy of the decision that complies with the conditions necessary for the recognition of its authenticity (e.g., a duplicate or a certified copy of the decision), and certification pursuant to Art. 39, issued by the relevant authority of the Member State in which the decision was issued, on a standardised form contained in an annex to Regulation No 2201/2003. In the case of a judgment on default it is necessary to also submit the original or a certified copy of the document confirming that the party that did not come to the proceedings, the petition to commence the proceedings or another similar document was delivered or any document indicating that the defendant has accepted the judgment unequivocally. If the certification or required document in the case of a judgment for default is not submitted, the procedure adopted will be pursuant to Art. 38 (1) of Regulation No 2201/2003.

With compliance with the conditions indicated in the mentioned regulation, the procedure for the enforcement of a decision in matters of parental responsibility from a different EU Member State is the same as for the enforcement of national decisions. For more information, see the preceding question.

16 To which court in this Member State should I turn to oppose the recognition of a decision on parental responsibility issued by a court in another Member State? Which procedure applies in these cases?

A remedial measure (appeal) against a decision of a court is submitted to the court that issued the decision. A superior court will decide on the remedial measure.

17 Which law does the court apply in a proceeding on parental responsibility where the child or the parties do not live in this Member State or are of different nationalities?

In proceedings regarding matters of parental responsibility the applicable law is determined pursuant to the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. Any bilateral international agreement by which the Czech Republic is bound in relation to other states takes precedence over the Convention of 1996, unless a declaration has been made pursuant to Art. 52 (1) of the Convention of 1996 (such a declaration was made in relation to a mutual bilateral agreement by the Czech Republic and Poland, which ensured the precedence of the Convention of 1996).


The national language version of this page is maintained by the respective EJN contact point. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. Neither the EJN nor the European Commission accept responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

Last update: 08/01/2018

Parental responsibility - Ireland

TABLE OF CONTENTS


1 What does the legal term “parental responsibility” mean in practical terms? What are the rights and obligations of a holder of parental responsibility?

The legal term “parental responsibility” – referred to in Ireland as “guardianship” - refers to the possession of all rights and duties relating to a child which have been given under law or by the court, or by virtue of legal agreement. The holder of parental responsibility possesses rights of custody and access amongst others pertaining to the welfare of the child.

2 As a general rule, who has the parental responsibility over a child?

Generally, married parents of a child hold parental responsibility jointly over their child. Where parents are not married the mother is the general holder of parental responsibility but the natural father may be appointed as a guardian by agreement between the parents or by the court.

3 If the parents are unable or unwilling to exercise parental responsibility over their children, can another person be appointed in their place?

Yes. The Health Service Executive, through their Child and Family Service division TUSLA, can apply to the District Court for such care orders necessary for children under eighteen years. In exceptional circumstances, the court may appoint a guardian to exercise the functions of parental responsibility where a parent is unwilling or unable so to do. A Testamentary Guardian may be appointed upon the death of a parent where one has been elected by virtue of a will or codicil or may be appointed by the court. In the absence of such election, the Health Service Executive, through their Child and Family Service division TUSLA, can apply to the District Court for such care orders necessary for children under eighteen years if the parents of a child are deceased or incapable of taking care of their child.

4 If the parents divorce or split up, how is the question of parental responsibility determined for the future?

Where the parents of a child divorce or “split up”, custody and access arrangements can be decided by agreement by the parents. Where agreement cannot be reached, parents can apply to court where a judge can make custody or access orders.  Where both parents are guardians of the child, this is not affected by divorce or splitting up, although the guardianship of a non-marital father may – in highly exceptional circumstances and only where the welfare of the child requires it – be terminated by the court.

5 If the parents conclude an agreement on the question of parental responsibility which formalities must be respected to make the agreement legally binding?

Parents who conclude an agreement on the question of parental responsibility are required to put same before the court and obtain an order reflecting such to make the agreement legally binding. The court must be satisfied that the rights of the child are adequately protected by any agreement and can refuse to make an order where it is not satisfied that either or both parents are discharging their obligations towards the child. Such an agreement cannot terminate the guardianship status of either parent.

6 If the parents cannot come to an agreement on the issue of parental responsibility, what are the alternative means for solving the conflict without going to court?

Individuals can have recourse to non-legal methods of conflict resolution such as mediation or through counselling.

7 If the parents go to court, what issues can the judge decide upon relating to the child?

The judge may decide upon all such issues pertaining to the welfare of the child including but not limited to issues as to guardianship, custody and access. See also Q. 4 and Q. 5 above – the guardianship of married parents or a natural mother may not be terminated by the court although the court may place conditions on a person’s exercise of their parental responsibilities.

8 If the court decides that one parent shall have single custody of a child, does this mean that he or she can decide on all matters relating to the child without first consulting the other parent?

No. While the parent who has sole custody of a child has the ability to decide upon the day to day care and control of the child, a non-custodial parent who is the child’s guardian possesses a right to be consulted on all matters affecting the welfare of the child including, but not limited to, where the child should be educated and where the child should live.

9 If the court decides that the parents shall have joint custody of a child, what does this mean in practice?

Joint custody is granted to parents in the absence of deep hostility between parties and enables them to mutually make decisions pertaining to the substantial welfare of the child and regarding its day to day care. This does not mean that each parent has a right to equal time with the child; rather, it ensures that both parents have corresponding duties and obligations to the child.

10 To which court or authority should I turn if I want to lodge an application on parental responsibility? Which formalities must be respected and which documents shall I attach to my application?

Normally parties who wish to lodge an application on parental responsibility do so before the District Court; however, for certain applications ancillary to matrimonial proceedings it may be necessary to apply to the Circuit or High Court. The High Court has exclusive jurisdiction in issues pertaining to Child Abduction.

11 Which procedure applies in these cases? Is an emergency procedure available?

Yes. It is possible to apply to the court ex parte, which means without notice to the other side, where circumstances would place a child at risk should an applicant put the respondent on notice in the usual manner.

12 Can I obtain legal aid to cover the cost of the procedure?

Yes. Legal Aid is obtained through the Civil Legal Aid Scheme. This scheme is means tested.

13 Is it possible to appeal against a decision on parental responsibility?

Yes. It is possible to appeal a decision of the court of first instance i.e. the court where the proceedings commenced; however, it is usually not possible to appeal the judgment of any appellant court.

14 In certain cases, it may be necessary to apply to a court or another authority to have a decision on parental responsibility enforced. Which procedure applies in such cases?

Individuals attempting to enforce a decision on parental responsibility should consult the rules of the respective courts or institution. Excluding ex parte applications, it is necessary to inform the respondent of your intention to take any procedure with a view to enforcing a judgment.

15 What should I do to have a decision on parental responsibility that is issued by a court in another Member State recognised and enforced in this Member State?

Please see reply to Q. 14.

16 To which court in this Member State should I turn to oppose the recognition of a decision on parental responsibility issued by a court in another Member State? Which procedure applies in these cases?

The High Court, which has full and original jurisdiction.

17 Which law does the court apply in a proceeding on parental responsibility where the child or the parties do not live in this Member State or are of different nationalities?

The Protection of Children (Hague Convention) Act 2000 gives legal force to the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children which applies in this area; further, Council Regulation (EC) No. 2201/2003 concerning Jurisdiction and Recognition and Enforcement of Judgments in Matrimonial Matters and Matters of Parental Responsibility (Brussels II bis) is also applicable in this area.


The national language version of this page is maintained by the respective EJN contact point. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. Neither the EJN nor the European Commission accept responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

Last update: 12/09/2016

Parental responsibility - Greece

TABLE OF CONTENTS


1 What does the legal term “parental responsibility” mean in practical terms? What are the rights and obligations of a holder of parental responsibility?

Parental responsibility is a right and an obligation of parents. It covers caring for the minor child’s person, managing the child’s property and representing the child in any matter, transaction or litigation that concerns the child or the child’s property. Parental responsibility therefore ensures the protection of the minor’s personal and property rights.

2 As a general rule, who has the parental responsibility over a child?

Parental responsibility is exercised jointly by the two parents. Any decision of the parents regarding the exercise of parental responsibility must be made bearing in mind the child’s interests.

3 If the parents are unable or unwilling to exercise parental responsibility over their children, can another person be appointed in their place?

If either of the parents is unable to exercise parental responsibility, for practical reasons (e.g. hospitalisation, imprisonment) or for legal reasons (legal incapacity), that parent remains a simple holder of the right while parental responsibility is exercised solely by the other parent.

If neither parent is able to exercise parental responsibility, a minor child is placed under guardianship; the parents retain parental responsibility, as simple holders of the right, while being unable to exercise it.

4 If the parents divorce or split up, how is the question of parental responsibility determined for the future?

In the case of divorce or separation, and provided that both parents are alive, the question of parental responsibility is resolved by the court. Parental responsibility may be awarded to one of the parents or, if they both agree and simultaneously fix the place of residence of the child, to both parents jointly. The court may decide otherwise, and may in particular divide the exercise of parental responsibility between the parents or grant it to a third person.

5 If the parents conclude an agreement on the question of parental responsibility, which formalities must be respected to make the agreement legally binding?

Where a court has to determine the exercise of parental responsibility, as in cases of divorce or separation, it will take account of any agreements between the parents, but such agreements are not binding on the court. Agreements of this kind are not subject to specific formalities, provided only that they are legally brought to the court’s knowledge. The usual course is to submit a document drawn up by the interested parties which sets out the agreement between them. This is explicitly provided for by law in cases of divorce by mutual consent of parents with minor children, in which case a written agreement between the parents settling the custody of their children and contact therewith must be submitted to the court.

In all other respects, parents may informally agree on the exercise of parental responsibility, without complying with any formality or following any formal procedure, so as to divide responsibility between them in practice, with one aspect being exercised by one parent and another by the other parent: for example, one parent might have custody of the child and the other might manage the minor’s property and represent his or her interests.

6 If the parents cannot come to an agreement on the issue of parental responsibility, what are the alternative means for solving the conflict without going to court?

If parents cannot come to an agreement on the issue of parental responsibility, and it is in the child’s best interests that a decision is reached, the matter will be decided by the court. Mediation is an alternative means of dispute resolution.

7 If the parents go to court, what issues can the judge decide upon relating to the child?

Where parents disagree on a specific issue in the exercise of their parental responsibility, and bring the matter before a court, the court can decide only upon that issue. It may be any issue arising during the exercise of parental responsibility which causes disagreement between the parents, each maintaining his or her own opinion, so that resolution is in the best interests of the child. It may be objectively serious, e.g. selecting a first name, agreeing to surgery etc., or it may be a matter of no great objective importance which, however, the parents consider important enough to bring before the court.

8 If the court decides that one parent shall have sole custody of a child, does this mean that he or she can decide on all matters relating to the child without first consulting the other parent?

Yes, in principle, in so far as the issue falls within the scope of the custody of the child awarded to one parent. The parents can always choose not to adopt the court’s solution awarding sole custody to one parent: even after the court has delivered judgment, they may agree to apply a different arrangement giving the other parent a role in the care of the child, provided, of course, that this arrangement is in the best interests of the child.

9 If the court decides that the parents shall have joint custody of a child, what does this mean in practice?

This means that decisions related to the care of the child must be made jointly by the parents.

10 To which court or authority should I turn if I want to lodge an application on parental responsibility? Which formalities must be respected and which documents shall I attach to my application?

The competent court is always the single-member court of first instance (μονομελές πρωτοδικείο). Applications must be lodged with the court that has jurisdiction for the place, and must be served on the respondent; the documents serving as grounds for the application must also be submitted to the court.

11 Which procedure applies in these cases? Is an emergency procedure available?

The single-member court of first instance decides in line with a special procedure laid down in Articles 681(B) and (C) of the Code of Civil Procedure. This is modelled on the procedure for labour disputes, in order to expedite the hearing of cases. Owing to the primarily personal character of parental responsibility disputes, it also applies certain provisions from the procedure in matrimonial cases, and rules from the procedures for non‑contentious jurisdiction regarding the investigating authority and the taking of evidence of the court’s own motion. However, when disputes relating to the exercise of parental responsibility are linked to any of the marital disputes referred to in Article 592(1) of the Code of Civil Procedure (e.g. divorce and marriage annulment) or the disputes referred to in Article 614(1) of the Code (e.g. determination of paternity), the court must apply the procedure set out in Articles 598‑612 and 616‑622 of the Code. Urgent matters can be dealt with by interim measures (ασφαλιστικά μέτρα) and emergencies by temporary injunction (προσωρινή διαταγή).

12 Can I obtain legal aid to cover the costs of the procedure?

Yes, under the general conditions applicable to legal aid.

13 Is it possible to appeal against a decision on parental responsibility?

A court judgment on parental responsibility can be revoked or varied if there has been a change in the circumstances that led the court to rule as it did. Otherwise a judgment on parental responsibility may be challenged by any of the ordinary judicial remedies (appeal on points of fact and law (έφεση), appeal on points of law only (cassation, αναίρεση), application to set aside (ανακοπή ερημοδικίας), review (αναψηλάφηση)), in accordance with the usual requirements.

14 In certain cases, it may be necessary to apply to a court to have a decision on parental responsibility enforced. Which court should I use in such cases and which procedure applies?

A judgment relating to parental responsibility is enforceable under Article 950 of the Code of Civil Procedure if it also imposes obligations, that is to say that it does not only resolve the issue of parental responsibility or custody of a minor child, or contact with the child, but also orders the delivery or return of the child, or determines the arrangements for contact, or prohibits the parties from taking any contrary action. In particular, (a) a judgment ordering the delivery or return of a child requires the parent who has the child to act as decided by the court, and in case of failure to comply with the court’s judgment the same judgment may provide for the automatic imposition of a financial penalty of up to €50 000 to be paid to the applicant requesting the delivery or restitution of the child, or a temporary detention of up to one year, or both penalties together (indirect enforcement (έμμεση εκτέλεση)); and (b) in the event that the right of personal contact of a parent with the child is obstructed, the judgment on contact may threaten the person obstructing such contact with a financial penalty and detention (complementary enforcement (αναπληρωματική εκτέλεση)).

15 What should I do to have a decision on parental responsibility that is issued by a court in another Member State recognised and enforced in this Member State?

Court judgments on parental responsibility issued in other Member States are automatically recognised without further formality by Greek administrative authorities. Greek courts have jurisdiction to decide on the validity of a foreign judgment, or on a request for recognition of a foreign judgment, without a prior examination of the jurisdiction of the Member State of origin. When recognition is sought in Greece, Greek courts may refuse the recognition of a judgment on parental responsibility when: (a) it is contrary to domestic public policy, always taking into account the child’s best interests; or (b) it is irreconcilable with a later judgment relating to parental responsibility given in the Greek courts. In addition, where they have jurisdiction under Council Regulation (EC) No 2201/2003 on the basis of the place of residence of the child, the Greek courts, as courts of the Member State in which recognition is sought, may settle the issue of parental responsibility for the child differently, by delivering their own later decision in the case, without a prior examination of the jurisdiction of the Member State of origin and the binding nature of its judgment (whether for example it is open to appeal).

16 To which court in this Member State should I turn to oppose the recognition of a decision on parental responsibility issued by a court in another Member State? Which procedure applies in these cases?

In the cases described the court with jurisdiction is the single-member court of first instance, which hears the case on the basis of the procedure relevant to the type of dispute.

17 Which law does the court apply in a proceeding on parental responsibility where the child or the parties do not live in this Member State or are of different nationalities?

Relations between parents and a child are regulated by the following, in order of precedence: (1) the law of their last joint nationality; (2) the law of their last joint habitual residence; (3) the law of the nationality of the child.


The national language version of this page is maintained by the respective EJN contact point. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. Neither the EJN nor the European Commission accept responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

Last update: 21/10/2016

Parental responsibility - Spain

Please note that the original language version of this page Spanish has been amended recently. The language version you are now viewing is currently being prepared by our translators.

TABLE OF CONTENTS


1 What does the legal term “parental responsibility” mean in practical terms? What are the rights and obligations of a holder of parental responsibility?

In Spanish law, parental responsibility is usually referred to as ‘patria potestad’ (parental authority). It consists of the rights and duties of the individuals, normally the parents, or legal entities entrusted with the protection of the minor's person and property by law or by a court decision.

Parental authority must always be exercised for the benefit of the children, in accordance with their personalities, and with respect for their physical and psychological integrity. It includes the following duties and powers:

1. Looking after them, being with them, feeding them, educating them and ensuring that they receive a well-rounded education.

2. Representing them and administering their property.

2 As a general rule, who has the parental responsibility over a child?

Parents have parental responsibility for minors.

In the event that the parents separate, divorce, split up or do not live together, all the rights and duties regarding minors, in relation to their persons and their property, belong to both parents, except in exceptional circumstances.

If the parents live apart, parental authority will be exercised by the parent with whom the child lives. However, upon an application by the other parent, accompanied by supporting reasons, the court may, in the interests of the child, award him or her parental authority to be exercised jointly with the first parent, or may distribute between the mother and the father the functions inherent in exercising parental authority.

3 If the parents are unable or unwilling to exercise parental responsibility over their children, can another person be appointed in their place?

In Spanish law, other relatives, persons or institutions may be appointed, under judicial supervision, to exercise parental responsibility over minors, if the parents fail to carry out the duties of protection laid down by the law on the care of minors, or do not carry them out satisfactorily.

4 If the parents divorce or split up, how is the question of parental responsibility determined for the future?

If the parents divorce or separate, parental responsibility may be determined:

  • At the request of both parents, in a Regulating Agreement (convenio regulado), which must be approved by the courts;
  • By a court decision, in adversarial proceedings.

Parental responsibility, as an institution for the protection of minors, lies with both parents.

The arrangements for the care and custody of minors may be summarised as follows:

  • Award to just one of the parents; this is the arrangement most frequently made, both in separations and divorces which are mutually agreed and in adversarial proceedings; visiting arrangements are usually made for the parent without custody.
  • Joint award, with alternating periods in which the minors are with one or the other parent.
  • On an exceptional basis, where circumstances so dictate and in the interests of the minor, a court decision may be issued awarding care and custody to another person, either following a proposal by the parents themselves or at the direct decision of the court.

In cases where the administration is responsible for the care of the minor, this situation is maintained, and custody is not awarded to either parent.

5 If the parents conclude an agreement on the question of parental responsibility, which formalities must be respected to make the agreement legally binding?

Parents who reach an agreement on issues of parental responsibility must submit a signed Regulating Agreement containing all the points agreed on. This must set out expressly, in addition to other measures:

  • the care and custody of the minor;
  • the visiting arrangements with parents;
  • the exercise of parental responsibility;
  • the use of the family home;
  • the maintenance allowance for the minor.

The Regulating Agreement is submitted together with the application to the appropriate Court of First Instance. It must be ratified by the parents in court. After hearing the minors - if they are old enough - and the public prosecutor, the judge assesses the agreements.

Unless they are damaging for the children, agreements by the spouses adopted to govern the consequences of annulment, separation or divorce will be approved by the judge. If the parties propose arrangements for visits and communication between grandchildren and their grandparents, the judge may approve them after having a hearing with the grandparents in which they give their assent.

If agreements are rejected, this must be done through a decision accompanied by reasons. In this event, the spouses must submit a new proposal for approval by the judge, if applicable.

6 If the parents cannot come to an agreement on the issue of parental responsibility, what are the alternative means for solving the conflict without going to court?

Family Mediation is the best alternative measure to a court decision for arriving at an agreement between the parties.

For any agreements adopted to be enforceable, they must always be approved by a court decision.

7 If the parents go to court, what issues can the judge decide upon relating to the child?

In the court decision the judge must always decide upon the following matters in the interest of minor children, avoiding the separation of siblings if possible, after hearing them if they are capable of judgement:

  • the judicial measures concerning custody and care, granted to one or both parents, and education;
  • the visiting arrangements, indicating the time, method and place when parents can communicate with their children and spend time with them;
  • exceptionally, these visiting rights may have to be limited or suspended if serious circumstances occur or if one of the parents seriously and repeatedly fails in his or her duties;
  • The award of parental authority, and, if necessary and if appropriate for the children, a decision as to total or partial exercise of such authority by one of the parents, including deprivation of such authority if there is good reason;
  • the maintenance to be paid by each parent to meet the needs of the child, having regard to the economic circumstances, and adopting the measures necessary to ensure the effectiveness of the maintenance;
  • allocation of the use of the family home and of commonly used items, in cases when there is no agreement between the parents, giving preference to the spouse with custody of the minor children.

8 If the court decides that one parent shall have sole custody of a child, does this mean that he or she can decide on all matters relating to the child without first consulting the other parent?

As a general rule, parental authority is shared by both parents. Both parents, therefore, share the power to decide upon and resolve all matters concerning a minor, even if only one of them has been awarded custody.

In the event of disagreement between the parents over decisions that can or should be taken concerning a minor child, for instance in relation to schooling and educational matters such as choosing a school or extracurricular activities, health care when choosing a doctor, personal matters such as the choice of a name or religious education, or choosing the place or country where the minors live, etc., and when mutual agreement has proved impossible, either of the parents may have recourse to the court to resolve the dispute.

After hearing both parents and the child (if he or she is capable of judgement), without further recourse the judge will award decision-making powers to the father or mother. If the disagreements recur or some other cause arises that seriously impedes the exercise of parental responsibility, the judge may assign decision-making powers totally or partially to one of the parents, or may distribute these functions between them. All these measures may be adopted for a maximum period of two years.

9 If the court decides that the parents shall have joint custody of a child, what does this mean in practice?

In cases where the custody of a minor is awarded jointly to both parents, in practice day‑to‑day care of the minor by each parent alternates for predetermined periods, which usually coincide with specific school periods such as school terms or years.

All holiday periods are shared between both parents.

10 To which court or authority should I turn if I want to lodge an application on parental responsibility? Which formalities must be respected and which documents shall I attach to my application?

In matrimonial proceedings for separation or divorce by mutual agreement, the competent court is the Court of First Instance within whose jurisdiction the last joint matrimonial home, or the home of either of the applicants, is located.

In adversarial matrimonial proceedings the competent court is the Court of First Instance in the location of the conjugal home, and if the spouses are resident in different judicial districts the plaintiff may choose between the court in the area of the last matrimonial home or in the area where the defendant is resident.

In proceedings that solely concern the care, custody and maintenance of minor children, in which the parents are not married to each other, the Court of First Instance which has jurisdiction is that in the location of the last shared residence of the parents. If they live in different judicial districts the plaintiff may choose between the court in the area of residence of the defendant or that in the area of residence of the minor.

11 Which procedure applies in these cases? Is an emergency procedure available?

The procedures applicable in these cases are the following:

in cases where there is agreement between the parties, the mutual agreement procedure established by Article 777 of the Law on Civil Procedure, for separation, divorce and the adoption of definitive measures on the care, custody and maintenance of minor children, when there is no marriage;

when there is no agreement between the parties, the adversarial proceedings governed by Articles 770 and 774 of the Law on Civil Procedure, which is also applicable to family proceedings and proceedings concerning minors, when the parents are not married to each other.

In urgent cases the adoption of measures under the following procedures may be requested:

Interim measures prior to the submission of the application for annulment, separation, divorce or in proceedings concerning the care and custody of minor children and maintenance. This is governed by Articles 771 and 772 of the Law on Civil Procedure.

It is expressly provided that if there are grounds for urgent action, the measures in the first decision issued may be adopted, with immediate effect.

Interim measures deriving from the acceptance of the application for matrimonial proceedings or proceedings relating to minors, as in the previous cases. This is provided for in Article 773 of the Law on Civil Procedure.

12 Can I obtain legal aid to cover the costs of the procedure?

Total or partial legal aid may be obtained, provided that proof is produced that the requirements for entitlement to legal aid are met, under the Law on Legal Aid. (See ‘Legal Aid - Spain’).

13 Is it possible to appeal against a decision on parental responsibility?

To know which decisions can be appealed, distinctions must be drawn between all the possible decisions relating to matters of parental responsibility, namely:

  • All decisions in adversarial proceedings may be appealed before a Provincial Court;
  • Decisions in mutual agreement proceedings may only be appealed, before the Provincial Court, when a measure is agreed which differs from the terms of the Regulating Agreement.

The law provides no recourse against decisions on prior interim measures or interim measures, or decisions on the exercise of parental authority.

14 In certain cases, it may be necessary to apply to a court to have a decision on parental responsibility enforced. Which court should I use in such cases and which procedure applies?

In cases when judicial decisions on parental responsibility are not complied with voluntarily, an application may be submitted to the Court of First Instance that issued them, by submitting a request for enforcement of the measure or measures not complied with.

The sentence or decision whose enforcement is sought, and the person against whom enforcement is to be carried out, must be identified.

15 What should I do to have a decision on parental responsibility that is issued by a court in another Member State recognised and enforced in this Member State?

Decisions issued in a Member State on the exercise of parental responsibility in matrimonial proceedings concerning a child of the relationship, which were enforceable in the said Member State and which have been notified, shall be recognised in Spain at the request of any of the interested party without the need for proceedings, pursuant to the provisions of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility.

To request enforcement, an enforcement request must be submitted to the court of the place where the minor is located and where enforcement is requested. A copy of the decision whose enforcement is sought must be attached to the request and must meet all the requirements for determining its authenticity, in accordance with the standardised form set out in Annex V. A lawyer and legal representative are necessary.

16 To which court in this Member State should I turn to oppose the recognition of a decision on parental responsibility issued by a court in another Member State? Which procedure applies in these cases?

To oppose in Spain the recognition of a decision on parental responsibility adopted by another Member State, the party concerned must apply to the Court of First Instance to which the request for recognition has been made and plead the existence of any of the grounds for non‑recognition laid down in Regulation 2201/2003.

The grounds that may be pleaded are:

  • that the decision is manifestly contrary to public order, taking into account the child's best interest;
  • that the child was not given an opportunity to be heard (grounds not admissible in cases of urgency);
  • if the decision was issued in absentia, that the document instituting the proceedings was not submitted or notified, unless it is proven that the decision was accepted,
  • if the party opposing the recognition and alleging that the decision impedes the exercise of parental responsibility has not had the opportunity to be heard,
  • or if it is incompatible with another decision issued subsequently.

17 Which law does the court apply in a proceeding on parental responsibility where the child or the parties do not live in this Member State or are of different nationalities?

The law applicable is that of the minor’s usual place of residence, in accordance with the 1996 Hague Convention on the protection of the child.


The national language version of this page is maintained by the respective EJN contact point. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. Neither the EJN nor the European Commission accept responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

Last update: 26/05/2017

Parental responsibility - Malta

TABLE OF CONTENTS


1 What does the legal term “parental responsibility” mean in practical terms? What are the rights and obligations of a holder of parental responsibility?

The term comprises all duties and obligations of a parent towards the minor as per Maltese Civil Code, Cap. 16 Laws of Malta. The term “parental responsibility” which in Maltese legislation is referred to as “parental authority ” comprises custody and access, decisions about issues such as place of residence, travel, maintenance obligations, education, major health related decisions and administration of property belonging to children.

2 As a general rule, who has the parental responsibility over a child?

The birth parent or in case of adoptions, the adoptive parents upon finalisation of the adoption procedures. Furthermore, a single mother has parental responsibility unless the father registers the birth jointly with the child's mother.

3 If the parents are unable or unwilling to exercise parental responsibility over their children, can another person be appointed in their place?

When a child is placed under a care order or a court order, the care and custody is vested in the Minister according to the Children and Young Persons (Care Orders) Act Cap. 285, Laws of Malta.

4 If the parents divorce or split up, how is the question of parental responsibility determined for the future?

In case of divorce or separation, it is determined by a court decision or settled through mediation. It may also be determined through a legally binding enforceable document between the parties signed in the presence of a notary.

5 If the parents conclude an agreement on the question of parental responsibility, which formalities must be respected to make the agreement legally binding?

If such agreement is concluded outside separation proceedings for it to be legally binding, it has to be ratified in Court and filed in the Public Registry. On the other hand, if an agreement on parental responsibility is reached during separation or divorce proceedings, the agreement is presented before the court hearing such proceedings and a court decree is delivered, approving or otherwise the agreement.

6 If the parents cannot come to an agreement on the issue of parental responsibility, what are the alternative means for solving the conflict without going to court?

An alternative mean in such instances is the process of mediation. If the parents still do not reach an agreement during this process, proceedings will be instituted before the Civil Court (Family Section).

7 If the parents go to court, what issues can the judge decide upon relating to the child?

The judge can decide on all major decisions considered important for the child's welfare, for instance, residence of the child, which parent is to have custody, visiting and access rights, and the obligation to pay maintenance for the child.

8 If the court decides that one parent shall have sole custody of a child, does this mean that he or she can decide on all matters relating to the child without first consulting the other parent?

The court rarely grants full care and custody to one parent but this depends on a case by case. Having said that, in case the court grants full care and custody to one parent some matters still have to be discussed with the consent of the other parent, in particular matters relating to access or removal of minor to a third country which would directly involve the access rights of the non-custodial parent.

9 If the court decides that the parents shall have joint custody of a child, what does this mean in practice?

It means that both parents discuss and take decisions related to the child jointly. This would not include day to day activities but only the major decisions involving place of residence, education and health issues. Article 136 (3) of the Link opens in new windowCivil Code makes reference to acts of extraordinary administration, whereby such acts require the consent of both parents.

10 To which court or authority should I turn if I want to lodge an application on parental responsibility? Which formalities must be respected and which documents shall I attach to my application?

Where mediation is not successful, an application is filed before the Civil Court (Family Section). There is no formal list of required documents thus any pertinent documentation and certificates can be attached to the application, in particular, those providing proof of parental authority, including any agreements on care and custody, or decrees given.

11 Which procedure applies in these cases? Is an emergency procedure available?

The application is set for hearing on a particular date. During the hearing of the case the judge will hear the parties and other witnesses the parties summon. The Court may also appoint social workers and psychologists to draw up a report on the child if it recognises such need. A report will be drawn up by the experts appointed by the Court after they consult the parents, the child and other professional persons connected in some way with the case. Emergency procedures are resorted to if the party submitting the application indicates sufficient valid reasons which show urgency. If it is in the interest of the minor, an interim decree is given of the issue calling for urgency, for instance an impediment of departure, care and custody, etc.

12 Can I obtain legal aid to cover the costs of the procedure?

Yes, one can apply for legal aid, however the applicant has to undergo a means test as per Title X of Book Third of the Code of Organisation and Civil Procedure (Link opens in new windowCap 12 of the Laws of Malta). Further detail on legal aid can be obtained from the section on legal aid.

13 Is it possible to appeal against a decision on parental responsibility?

It is only possible to appeal if a point of law is invovled, that is for example one of the parties is not given the right to produce a witness without the court giving a valid reason. In such cases, an appeal can be lodged before the Court of Appeal.

14 In certain cases, it may be necessary to apply to a court to have a decision on parental responsibility enforced. Which court should I use in such cases and which procedure applies?

A decision by the Civil Court (Family Section) is automatically enforceable however in cases where such a decree is not followed by one of the parents, the parent being restricted the parental authority can file a report before the police who will subsequently proceed with criminal proceedings before the Court of Magistrates to effect enforcement together with a fine (multa) and/or imprisonment. Furthermore, an application may be lodged in front of the Civil Court (Family Section) asking for the alteration of the court decree.

15 What should I do to have a decision on parental responsibility that is issued by a court in another Member State recognised and enforced in this Member State?

The applicable procedure to be followed is that which is found in Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels II bis) namely that a certificate is filled in by the competent judge which together with the court sentence and an application asking for the recognition and enforcement of such a decision is filed before the Civil Court (Family Section). An address for notification purposes must also be identified. All documents are to be translated into Maltese or English.

16 To which court in this Member State should I turn to oppose the recognition of a decision on parental responsibility issued by a court in another Member State? Which procedure applies in these cases?

An opposition can be made before the same court and in the acts of where the application for enforcement and recognition has been filed. The opposition will contain reasons why such recognition and enforcement should be withheld and this is done by a reply to the application.

17 Which law does the court apply in a proceeding on parental responsibility where the child or the parties do not live in this Member State or are of different nationalities?

The applicable law is Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000.


The national language version of this page is maintained by the respective EJN contact point. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. Neither the EJN nor the European Commission accept responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

Last update: 16/10/2017

Parental responsibility - Romania

TABLE OF CONTENTS


1 What does the legal term “parental responsibility” mean in practical terms? What are the rights and obligations of a holder of parental responsibility?

The Romanian Civil Code (Codul Civil) uses the concept of parental authority. Parental authority means all the rights and duties concerning both the child and his/her assets. The rights and duties belong equally to both parents and are exercised in the best interests of the child. Parental authority shall be exercised until the child reaches full legal capacity.

The parental rights and duties (provided for in Article 487-499 of the Civil Code and Law No 272/2004 (Legea nr. 272/2004) on the protection and promotion of children’s rights) with regard to the child include:

  • the right and duty to establish and preserve the child’s identity. The child shall be registered immediately after birth and shall have the right to a name and citizenship. Parents shall choose the first and last name of the child.
  • the right and duty to raise the child. Parents have the right and duty to raise the child, to care for the health and physical, psychological and intellectual development of the child, of his/her education, studies and professional training, according to their own beliefs, characteristics and needs of the child.
  • the right and duty to provide child supervision.
  • the right and duty to provide child support. Parents are obliged, jointly and severally, to provide maintenance for their minor child. Parents are obliged to support their grown-up child until graduation if s/he is pursuing his/her studies but no later than by the age of 26 years.
  • the right to take certain disciplinary measures against the child. It is forbidden to take certain measures, such as some physical punishment that would impair the physical, mental or emotional state of the child.
  • the right to ask for the return of the child from any person who holds him/her with no right.
  • the right of the parents to reunite with their child. This right is correlated with the right of the child to not be separated from his/her parents other than for exceptional and temporary reasons (e.g. placement measures).
  • the right of the parent to have personal links with his/her child. The methods of having personal links with the child are, e.g.: visiting the child in his/her home, visiting the child while s/he is in school, the child spending holiday with each of his/her parents.
  • the right to determine the child’s home. The minor child shall live with his parents. If the parents do not live together, they shall decide the child’s home by mutual agreement. In case of disagreement between the parents, the Guardianship Court (Instanţa de tutelă) shall decide.
  • the right to consent to the engagement and marriage of the child in the case of minors who have reached 16 years of age; the right to consent to the adoption of the child.
  • the right to appeal against the measures taken by the authorities with regard to the child and to make requests and actions in their own names and on behalf of child

The parental rights and duties (provided for in Article 500-502 of the Civil Code) as regards the child’s assets may include:

  • management of the child’s assets. The parent has no right over the assets of the child, nor has the child over the assets of the parent, apart from the right to inheritance and maintenance. Parents have the right and duty to manage the assets of their minor child and to represent him/her in legal civil acts or to give their consent to these acts. After the age of 14, the minor shall exercise his/her rights and shall execute his/her duties alone, however, with the consent of the parents and of the Guardianship Court, where appropriate.
  • the right and duty to represent the minor in civil acts or to give one’s consent to such acts. Up to the age of 14, the child shall be represented by the parents in civil acts as s/he lacks legal capacity entirely. From the age of 14 to 18, the child shall exercise his/her rights and shall execute his/her duties alone, however, the prior consent of the parents is required as s/he has limited legal capacity.

2 As a general rule, who has the parental responsibility over a child?

The rights and duties belong equally to both parents (Article 503(1) of the Civil Code): if the parents are married; after divorce (Article 397 of the Civil Code); to the parent whose filiation has been established if the child was born out of wedlock, and to both parents if the parents live in domestic partnership (Article 505(1) of the Civil Code).

Parental authority shall be exercised unevenly by (separated) parents: in the case of the dissolution of marriage by divorce if the Court considers that it is in the interest of the child for parental authority to be exercised by one parent only (Article 398 of the Civil Code); in the case of the dissolution of marriage (Article 305(2) of the Civil Code); if the child was born out of wedlock where the parents do not live in a domestic partnership (Article 505(2) of the Civil Code).

Parental authority shall be exercised by one of the parents according to Article 507 of the Civil Code when the other parent is deceased, or has been deprived of his/her parental rights, or is placed under interdiction etc.

Parental authority shall be exercised by the parents in part when the rights and duties belong to a third party or to a care institution (Article 399 of the Civil Code).

3 If the parents are unable or unwilling to exercise parental responsibility over their children, can another person be appointed in their place?

A minor parent who reached the age of 14 has only personal parental rights and duties with regard to the child. The rights and duties with regard to the assets of the child belong to the guardian or to another person.

The guardianship of minors shall be established when both parents are deceased, are unknown, are deprived of the exercise of parental rights or have been charged with criminal penalty to deprive them of the parental rights, are placed under judicial interdiction, are missing or are declared dead, and the Court decides upon the termination of the adoption that it is in the interest of the minor to establish a guardianship.

Guardianship is established if the child lacks the care of both parents, after they have been deprived of the exercise of parental rights.

Exceptionally, the Guardianship Court may decide on the placement of the child to a relative or to another family or person, with their consent, or into a care institution.

4 If the parents divorce or split up, how is the question of parental responsibility determined for the future?

In principle, parental authority lies with both parents jointly after divorce, or with one of the parents only if there are well-grounded reasons, regarding the best interest of the child. The other parent shall retain the right to watch how the child is raised and educated, and the right to consent to his/her adoption.

Exceptionally, the Guardianship Court may decide on the placement of the child to a relative or to another family or person, with their consent, or into a care institution. They shall exercise the rights and duties of parents with regard to the child (Article 399 of the Civil Code).

When a child is born out of wedlock whose filiation was established to both parents, parental authority shall be exercised jointly and equally by the parents if they live in a domestic partnership. If the parents of the child born out of wedlock do not live in a domestic partnership, parental authority shall be exercised by one of the parents only.

Divorce with the consent of the spouses may be established by a notary public even if there are minor children born in wedlock, out of wedlock or adopted, or if the spouses agree on all the aspects regarding the surname used after divorce, the exercise of parental authority by both parents, the establishment of the home of the children after divorce, the method of how personal ties are preserved between the separated parent and each child, as well as the establishment of the parents’ contribution to the costs of child rearing, the education, studies and professional training of children. If the report of the social inquiry shows that the agreement of the spouses on the joint exercise of parental authority or on the establishment of the children’s home is not in the interest of the child, the notary public dismisses the application for divorce and guides the spouses to address to the Court.

5 If the parents conclude an agreement on the question of parental responsibility, which formalities must be respected to make the agreement legally binding?

Parents may agree on the exercise of parental authority or as regards the measures taken to protect the child with the consent of the Guardianship Court, if it is in the best interest of the child (Article 506 of the Civil Code).

The Parties may appear at any time during judgement, even without having been summoned, in order to request a ruling that legalises their transaction, by giving a consent judgement. The consent judgement is final and shall be enforceable.

6 If the parents cannot come to an agreement on the issue of parental responsibility, what are the alternative means for solving the conflict without going to court?

Mediation is optional before the referral to the Court. During the resolution of the trial, the judicial authorities are obliged to inform the Parties about the possibility and advantages of using mediation. If mediation does not result in an agreement, the disputed issues shall be settled in Court.

7 If the parents go to court, what issues can the judge decide upon relating to the child?

See the answer to question 1.

8 If the court decides that one parent shall have sole custody of a child, does this mean that he or she can decide on all matters relating to the child without first consulting the other parent?

If the Court decides that parental authority shall be exercised by one of the parents only, that parent shall decide alone on all the matters related to the child. The other parent shall retain the right to check how the child is raised and educated, as well as the right to consent to his/her adoption.

9 If the court decides that the parents shall have joint custody of a child, what does this mean in practice?

Parents shall exercise parental authority jointly and equally. With regard to third parties in good faith, if either of the parents carries out an everyday legal act on their own for the exercise of parental rights and fulfilment of parental duties, it is presumed that s/he also has the consent of the other parent.

10 To which court or authority should I turn if I want to lodge an application on parental responsibility? Which formalities must be respected and which documents shall I attach to my application?

The applications for the protection of individuals in the competence of the Guardianship and Family Court (the District Court or, where appropriate, the Tribunal specialised for minors and families) are settled by the Court in the territorial jurisdiction of which the protected person has his/her domicile or residence (Article 94 of the Code of Civil Procedure (Codul de Procedură Civilă)).

The Court at the plaintiff’s domicile is competent for the petitions regarding the establishment of filiation, the Court, in the jurisdiction of which the plaintiff resides, is competent for the petitions regarding maintenance duties (including state allowances for children).

The documents required to be attached to the application for summons are the copy of the minor child’s birth certificate, the copy of the identity card, the copy of the judgement of divorce, the mediation agreement (if any) and any other documents deemed useful in settling the case. The petition is exempt from stamp duty.

11 Which procedure applies in these cases? Is an emergency procedure available?

The Court may take provisional measures by presidential order throughout the whole divorce process (special procedure with shorter settlement terms) on setting the home of the minor children, on the maintenance obligation, on the collection of state allowance for children and on the usage of the family home (Article 919 of the Code of Civil Procedure).

12 Can I obtain legal aid to cover the costs of the procedure?

Legal aid may be sought under Emergency Order No 51/2008 (Ordonanța de Urgență nr. 51/2008) on public legal aid in civil matters, approved with amendments by Law No 193/2008 (Legea nr. 193/2008), as subsequently amended.

Legal aid may be granted separately or cumulatively in the form of assistance by a lawyer; by the payment for an expert, translator or interpreter; the payment for the bailiff’s fee; for the exemptions, reductions, rescheduling or delays in payment of the Court fees.

Those persons benefit fully from the legal aid whose monthly net income per family member was below RON 300 in the last two months prior to the petition. If the income is below RON 600, legal aid shall be covered at a rate of 50 %. However, the established conditions do not prevent applicants whose resources exceed the quota from benefiting of legal assistance if they prove that they cannot meet the judicial costs due to the difference between the living standards of the state of domicile or habitual residence and the forum State.

13 Is it possible to appeal against a decision on parental responsibility?

The judgement in the cases related to exercising parental authority (ancillary matters to the divorce or by primary route) is subject to an appeal only, within 30 days from the judgement, or to judicial review only, in the case of a consent judgement that confirms the agreement of the Parties.

14 In certain cases, it may be necessary to apply to a court to have a decision on parental responsibility enforced. Which court should I use in such cases and which procedure applies?

If the person under an obligation does not meet the obligation voluntarily, the person claiming entitlement must notify the bailiff. The bailiff will call on the executing court to consent to enforcement. It is settled in a closed session without summoning the parties.

If the request for enforcement is accepted, the bailiff sends a warrant and a summons to the parent or person with whom the minor is staying, informing him/her of a date on which to appear with the minor in order for the minor to be taken into the charge of the person claiming entitlement, or ordering him/her to allow the other parent to exercise their right to personal relations with the minor.

If the person under the obligation does not meet the obligation, the bailiff will proceed to a forced enforcement in the presence of a representative of the General Directorate of Social Assistance and Child Protection and, if necessary, in the presence of a psychologist and police officers. No one is allowed to bully the minor or to put pressure on him/her to allow the enforcement to be carried out.

If the person under the obligation fails to meet the obligation, the penalty determined by the court lasts until enforcement, and the bailiff will notify the prosecutor to commence prosecution.

If the minor refuses this, the bailiff will communicate the official report to the representative of the General Directorate of Social Assistance and Child Protection, and the competent court will order the minor to undergo a counselling programme, which is followed by a report by the psychologist. If the minor refuses this after enforcement has resumed, the person claiming entitlement may ask the court to apply a penalty.

15 What should I do to have a decision on parental responsibility that is issued by a court in another Member State recognised and enforced in this Member State?

For the recognition of a decision on parental authority, the provisions of Regulation (EC) No 2201/2003 shall apply. The petition is addressed to the Tribunal at the domicile of the defendant or at his/her residence in Romania. The recognition may be appealed at the competent territorial Court of Appeal (Curtea de Apel), or challenged by a request for judicial review at the High Court of Cassation and Justice (Înalta Curte de Casație și Justiție).

16 To which court in this Member State should I turn to oppose the recognition of a decision on parental responsibility issued by a court in another Member State? Which procedure applies in these cases?

In order to oppose the recognition of a decision on parental authority, the interested person may address to the Tribunal of the defendant’s domicile or his/her residence in Romania.

17 Which law does the court apply in a proceeding on parental responsibility where the child or the parties do not live in this Member State or are of different nationalities?

Article 2611 of the Civil Code states that the law applicable to parental authority and the protection of children is determined under the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of parental authority and Measures for the Protection of Children, adopted in The Hague on 19 October 1996, ratified by Law No 361/2007.


The national language version of this page is maintained by the respective EJN contact point. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. Neither the EJN nor the European Commission accept responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

Last update: 27/10/2016

Parental responsibility - Slovakia

Please note that the original language version of this page Slovak has been amended recently. The language version you are now viewing is currently being prepared by our translators.

TABLE OF CONTENTS


1 What does the legal term “parental responsibility” mean in practical terms? What are the rights and obligations of a holder of parental responsibility?

Under the Slovak Family Act (Act No 36/2005 on the family and on changes and amendments to certain acts) and case-law, parental responsibility (i.e. parental rights and obligations - custody) comprise, in particular, care of the child, maintenance, representation and administration of the child’s property.

2 As a general rule, who has the parental responsibility over a child?

Both parents jointly share parental rights and obligations towards a child, irrespective of whether the child is born in or out of wedlock or whether the parents live together or not (are married, separated or divorced).

A parent may be deprived of their parental rights and obligations (or have them restricted) by the court in serious circumstances, as provided for in Section 38(4) of the Family Act.

A court may recognise the parental rights and obligations of a minor parent over the age of 16 for the personal care of a minor child, subject to the conditions set out in Section 29 of the Family Act.

3 If the parents are unable or unwilling to exercise parental responsibility over their children, can another person be appointed in their place?

Yes. If both parents of a minor child do not have legal capacity, have been deprived of their parental rights and obligations, or are dead, the court must appoint a guardian who is to personally bring up the minor child, represent it and administer the child’s property.

4 If the parents divorce or split up, how is the question of parental responsibility determined for the future?

The court has to decide on the allocation and exercise of parental rights and obligations (even when both parents continue to exercise parental rights and obligations jointly) or it can approve an agreement between them.

Under Section 36(1) of the Family Act ‘[t]he parents of a minor child living separately may agree an arrangement for the exercise of their parental rights and obligations at any time. If the parents do not reach an agreement, the court may determine how their rights and obligations are to be exercised, even if no application to this effect has been made; in particular the court has to decide which of the parents is to be granted custody (osobná starostlivosť – personal care) of a minor child. The provisions of Sections 24, 25 and 26 shall apply mutatis mutandis.

5 If the parents conclude an agreement on the question of parental responsibility, which formalities must be respected to make the agreement legally binding?

An agreement between parents regarding their parental rights and obligations must be approved by the court.

6 If the parents cannot come to an agreement on the issue of parental responsibility, what are the alternative means for solving the conflict without going to court?

Out-of-court resolution of disputes is possible by mediation under Act No 420/2004 on mediation. This act also applies to disputes arising from relationships governed by family law. Mediation is an out-of-court procedure in which the parties concerned use the assistance of a mediator to resolve a dispute arising from their contractual or other legal relationship. Any agreement reached through mediation must be in writing and is binding on the parties to the procedure.

7 If the parents go to court, what issues can the judge decide upon relating to the child?

The court can, in principle, decide anything except to award sole custody (personal care) to one of the parents. Only if one parent is deprived of their parental rights and obligations, can a single parent have sole custody of a child. In practice, however, the court will decide which of the parents is to have personal care of the child, who is to represent the child and administer the child’s property. The court will also decide how the parent who was not awarded custody of the child is to contribute to the child’s maintenance or will approve the parents’ agreement on maintenance payments.

8 If the court decides that one parent shall have sole custody of a child, does this mean that he or she can decide on all matters relating to the child without first consulting the other parent?

The term ‘parental responsibility’ does not translate well in the context of Slovak family law. Slovak family law recognises the term ‘parental rights and obligations’, which are always shared jointly by both parents (so there can never be ‘sole custody’ unless the other parent is dead, does not have legal capacity or has been deprived of their parental rights and obligations). A distinction needs to be made between these cases and entrusting a child to someone’s ‘personal care’. If a child is entrusted to the personal care of one of the parents, that parent can make decisions on all routine matters relating to the child’s everyday life without the consent of the other parent; but all important issues relating to the exercise of parental rights and obligations (administration of the child’s property, moving the child abroad, citizenship, granting consent to health care being provided, preparation for a future occupation) require the consent of the other parent. If the parents are unable to agree on a decision, the court decides at the request of one of the parents.

9 If the court decides that the parents shall have joint custody of a child, what does this mean in practice?

The court may award alternating personal care (i.e. joint custody) to both parents if they are both fit to raise the child and are interested in the child’s personal care, and if this arrangement is in the child’s interest to better meet his or her needs. If at least one of the parents agrees with shared personal care of the child, the court is obliged to find out if joint personal care is in the child’s interest.

See all previous responses, in particular the response to question 8.

10 To which court or authority should I turn if I want to lodge an application on parental responsibility? Which formalities must be respected and which documents shall I attach to my application?

The District Court in whose district a minor child resides is the competent court for lodging applications on parental rights and obligations. No formalities need to be respected and no documents need to be attached, since this is a procedure which the court may start by its own motion. Submission of documents depends on the content of the application; usually the child’s birth certificate is needed.

11 Which procedure applies in these cases? Is an emergency procedure available?

A simplified and less formal procedure applies. There is an option of a provisional order, which takes the form of an urgent procedure.

12 Can I obtain legal aid to cover the costs of the procedure?

All proceedings for the arrangement of parental rights and obligations are free of court fees. The legal aid system in Slovakia is currently limited to exemption from payment of court fees and provision of a representative free of charge. Very few people choose to be represented by a lawyer, given the non-contentious character of proceedings on parental rights and obligations. However, if a person meets the legal conditions for personal exemption from court fees, the court may, at its discretion, provide a representative free of charge, including a lawyer, if it considers that representation is necessary for the protection of the party’s interests.

The court refers all parties requesting the provision of a lawyer and meeting the conditions for exemption from court fees to the Legal Aid Centre. The court advises parties of this option. The court may grant a party full or partial exemption from court fees if this is justified by their circumstances and if doing so would not be an arbitrary or evidently unsuccessful exercise or an obstruction of justice. Unless the court decides otherwise, exemption applies to the entire proceedings and has retroactive effect. However, any fees paid prior to the issue of a decision on exemption are not refunded.

The Legal Aid Centre provides the legal aid and security system for natural persons who are unable to make use of legal services in order to exercise and protect their rights owing to their economic circumstances. The extent of legal aid provided is governed by Act No 327/2005 on the provision of legal aid to persons in adverse economic circumstances.

13 Is it possible to appeal against a decision on parental responsibility?

Yes, it is possible to appeal against a decision on parental rights and obligations.

14 In certain cases, it may be necessary to apply to a court to have a decision on parental responsibility enforced. Which court should I use in such cases and which procedure applies?

An application for enforcement of a decision is lodged with the child’s general court. The procedure applied in enforcement of a decision is governed by Act No 99/1963 - Civil Procedure Code.

The regular enforcement procedures apply (court enforcement) with the exception of enforcement of decisions on personal care (if a child is to be returned to the parent who under the decision has the right of personal care). In such cases the procedure is stricter (financial penalties and possible involvement of the police or other competent enforcement authorities).

15 What should I do to have a decision on parental responsibility that is issued by a court in another Member State recognised and enforced in this Member State?

Court decisions on parental rights and obligations issued by a court in another Member State are recognised and enforced without special proceedings in the Slovak Republic, in accordance with Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Article 21(1)), i.e. without the need to have the decision declared enforceable.

However, an interested party may apply for a decision on parental rights and obligations issued in another Member State to be declared enforceable, and the procedure under Chapter III, Section 2 of the Regulation then applies.

Applications are lodged with the District Court in whose district the child resides or, if the child is not resident, to the court in whose district the child is currently living, and if there is no such court, the competent court is the Bratislava I District Court .

The application for recognition of a decision or for a declaration of the enforceability of a decision must be accompanied by a copy of the decision on parental rights and obligations that meets the requirements as regards proof of authenticity and by a document certifying the decision, which is issued at the request of the interested person by the relevant court of origin, i.e. the court that issued the decision on parental rights and obligations.

16 To which court in this Member State should I turn to oppose the recognition of a decision on parental responsibility issued by a court in another Member State? Which procedure applies in these cases?

Appeals are always lodged with the District Court that issued the original decision but appeals are decided by the Regional Court. Appeals against recognition of decisions on parental rights and obligations are processed and decided in accordance with the Code of Civil Procedure.

17 Which law does the court apply in a proceeding on parental responsibility where the child or the parties do not live in this Member State or are of different nationalities?

The Slovak courts will only decide in proceedings on parental rights and obligations if the child is habitually resident in the Slovak Republic. If the child is not living in the Slovak Republic but has his or her habitual residence here, or if the parents do not live in the Slovak Republic or are citizens of different countries, the provisions of Slovak law are applied in accordance with the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (ref. no. 344/2002) (Chapter III of the Convention).

Act No 97/1963 on international private and procedural law states that relationships between parents and children, including the commencement or extinction of parental rights and obligations are governed by the law of the country of the child’s habitual residence. In exceptional cases, the court may take into account the law of another country where there is a significant link with the matter at hand and if this is necessary to protect the child or his or her property. Parental rights and obligations originating in the country of the child’s original habitual residence remain valid even if the child’s habitual residence changes. If either of the parents did not possess any of the parental rights and obligations that are recognised under Slovak law, those rights and obligation commence when the child is habitually resident in the Slovak Republic. The exercise of parental rights and obligations is governed by the law of the country in which the child is habitually resident.

The provisions of the Act on international private and procedural law apply only in the absence of an international agreement or if an existing international agreement does not contain conflict-of-law criteria for determining the applicable law.

Besides the 1996 Hague Convention, the Slovak Republic is bound by a number of bilateral agreements containing provisions on the applicable law, and these provisions take precedence over the provisions of the Act on international private and procedural law in proceedings on parental rights and obligations. The agreements in question are:

Bulgaria: Agreement between the Czechoslovak Socialist Republic and the People’s Republic of Bulgaria on legal assistance and regulation of legal relationships in civil, family and criminal matters (Sofia, 25 November 1976, Decree No 3/1978)

Croatia, Slovenia: Agreement between the Czechoslovak Socialist Republic and the Socialist Federal Republic of Yugoslavia on regulation of legal relationships in civil, family and criminal matters (Belgrade 20.1.1964, Decree No 207/1964)

Hungary: Agreement between the Czechoslovak Socialist Republic and the People’s Republic of Hungary on legal assistance and regulation of legal relationships in civil, family and criminal matters (Bratislava, 28 March 1989, ref. no. 63/1990)

Poland: Agreement between the Czechoslovak Socialist Republic and the People’s Republic of Poland on legal assistance and regulation of legal relationships in civil, family, labour and criminal matters (Warsaw, 21.12.1987, Decree No 42/1989)

Romania: Agreement between the Czechoslovak Socialist Republic and the People’s Republic of Romania on legal assistance and regulation of legal relationships in civil, family and criminal matters (Prague, 25.10.1958, Decree No 31/1959)


The national language version of this page is maintained by the respective EJN contact point. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. Neither the EJN nor the European Commission accept responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

Last update: 05/02/2018

Parental responsibility - England and Wales

TABLE OF CONTENTS


1 What does the legal term “parental responsibility” mean in practical terms? What are the rights and obligations of a holder of parental responsibility?

Parental responsibility means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property. This refers to any obligation which he may have in relation to a child (such as the duty to maintain) and any rights which, in the event of the child's death, he may have in relation to the child's property. Under the law of England and Wales, parental responsibility has not been held to include decisions on who a child should live with and who a child should spend time with.

2 As a general rule, who has the parental responsibility over a child?

If the parents of a child are married or in a civil partnership, both the mother and father (or second female parent) will have parental responsibility. Mothers always have parental responsibility and unmarried fathers or a second female parent who is not married to or in a civil partnership with the child's mother can acquire it by agreement with the mother, by court order or by registering the birth jointly with the child's mother. A step-parent may have parental responsibility by agreement with the child's parent or parents who have parental responsibility or by court order. A person who has a child arrangements order about with whom the child should live and when, has parental responsibility for the duration of the order, or sometimes longer. The making of an adoption order confers parental responsibility without limit of time, unless it is revoked. Special guardians (see the answer to question 3 below) have parental responsibility for the duration of the order. A local government authority has parental responsibility for a child if the child is the subject of a care order. A person with parental responsibility under Article 16 of the 1996 Hague Protection of Children Convention retains that parental responsibility when the child becomes habitually resident in England and Wales; the exercise of that parental responsibility is according to the law of England and Wales.

3 If the parents are unable or unwilling to exercise parental responsibility over their children, can another person be appointed in their place?

A special guardian may be appointed by the court to exercise parental responsibility if the parents are unable to take care of a child. A parent with parental responsibility may appoint a person to be the child's guardian in the event of the parent's death. The local authority (social welfare authority) will have parental responsibility if the child is in their care.

4 If the parents divorce or split up, how is the question of parental responsibility determined for the future?

Parental responsibility is not affected if a couple separate, whether or not they are married. The court may restrict the exercise of parental responsibility if the court considers it appropriate to do so. In some cases the court may remove parental responsibility completely (although it cannot be removed from parents who are married to each other).

5 If the parents conclude an agreement on the question of parental responsibility, which formalities must be respected to make the agreement legally binding?

The agreement must be made in a Parental Responsibility Agreement form.

Details of the addresses of courts can be found on the website of Link opens in new windowHer Majesty's Courts and Tribunals Service (HMCTS). The form is accompanied by notes for guidance. As the making of the agreement will seriously affect the legal position of both parents, they are both advised to seek legal advice before completing the form. They can obtain the name and address of a solicitor in the location required in England and Wales from the Law Society Find a Solicitor Service (00 44 (0)20 7242 1222) or from:

In some circumstances they may also be eligible for legal aid.

The parents must provide evidence of identity and their signatures must be witnessed by an authorised officer of the court. The mother should take with her to the court proof that she is the child's mother, so a copy of the child's full birth certificate will be needed. She will also need to take proof of her identity, showing a photograph and signature (for example, a photocard, official pass or passport). The father will need to take proof of his identity, showing a photograph and signature (for example, a photocard, official pass or passport).

When the form has been signed and witnessed 2 copies should be made. The original Agreement form and the copies can be taken or sent to

The Central Family Court ,
First Avenue House,
42-49 High Holborn,
London WC1V 6NP.

The Central Family Court will record the Agreement and keep the original. The copies will be stamped and sent back to each parent at the address on the Agreement. The Agreement will not take effect until it has been received and recorded at the Central Family Court. There is no fee for registering a Parental Responsibility Agreement. If there is more than one child in question, a separate form should be completed for each child.

6 If the parents cannot come to an agreement on the issue of parental responsibility, what are the alternative means for solving the conflict without going to court?

Mediation services are available to help parents reach a satisfactory arrangement for the future parenting of the child. Any agreement reached must be registered with the court. Registration is needed to validate the agreement and to make the agreement enforceable.

More information on family mediation can be found on the website of the Link opens in new windowMinistry of Justice.

7 If the parents go to court, what issues can the judge decide upon relating to the child?

The judge can decide with whom the child is to live and when. The judge can also decide with whom the child is to spend time or otherwise have contact and when. Parents are encouraged to reach agreement on contact. Courts will not decide maintenance payments for children as, if the parents cannot agree between themselves, this is undertaken by the Link opens in new windowChild Maintenance Service. Parents usually agree what school the child will attend; this can be decided by the judge making a specific issue order if agreement cannot be reached. A child retains their own name unless directed otherwise by the court. The court can also prevent a person exercising part of their parental responsibility, by making a prohibited steps order. The court can also decide on permanent removal from the jurisdiction and change of surname (see question 8 below).

8 If the court decides that one parent shall have sole custody of a child, does this mean that he or she can decide on all matters relating to the child without first consulting the other parent?

The court expects parents to take decisions together by agreement. If both parents have parental responsibility, the parent with a child arrangements order about who the child is to live with must have the consent of the non-resident parent (and anyone else with parental responsibility) to remove the child permanently from the United Kingdom, or have the permission of the court. The parent with whom it is ordered the child is to live can move within the jurisdiction (England & Wales). The consent of everyone with parental responsibility, or the permission of the court, is required for the child's surname to be changed.

9 If the court decides that the parents shall have joint custody of a child, what does this mean in practice?

Parents will share residence. The child will spend part of their time with each as ordered by the court. There may be practical effects on the amount of child maintenance payable.

10 To which court or authority should I turn if I want to lodge an application on parental responsibility? Which formalities must be respected and which documents shall I attach to my application?

Application can be made to the family court under Section 4 of the Link opens in new windowChildren Act 1989. Details of court contact details are available from Link opens in new windowHer Majesty's Courts and Tribunals Service website. The application form is also available from that website. Every person with parental responsibility must be sent a copy of the application form. Documents will be filed later, as directed by the court.

11 Which procedure applies in these cases? Is an emergency procedure available?

The procedure is as detailed above. There are no emergency procedures for obtaining parental responsibility.

12 Can I obtain legal aid to cover the costs of the procedure?

Legal aid will only be available where evidence of domestic violence has been shown.

13 Is it possible to appeal against a decision on parental responsibility?

Yes. Decisions on parental responsibility can be appealed from a judge of District Judge level to a judge of Circuit Judge level. Appeals from a District Judge of the High Court are to a judge of High Court level.

14 In certain cases, it may be necessary to apply to a court to have a decision on parental responsibility enforced. Which court should I use in such cases and which procedure applies?

Parental responsibility is a right and cannot of itself be enforced. Failure to exercise parental responsibility can be dealt with by application to the family court to address the specific issue in dispute, such as the obligation to maintain the child. Details of the addresses of courts can be found Link opens in new windowhere.

15 What should I do to have a decision on parental responsibility that is issued by a court in another Member State recognised and enforced in this Member State?

If you wish to enforce an order on rights of access or on Article 11(8) from another Member State under Council Regulation (EC) No 2001/2003 (Brussels IIa) you should obtain the certificate required under the Regulation from the court that made the decision and apply to the Principal Registry at the address of the Central Family Court for recognition or enforcement of the order. For registration, recognition or non-recognition of other orders, you should apply to the Principal Registry.

16 To which court in this Member State should I turn to oppose the recognition of a decision on parental responsibility issued by a court in another Member State? Which procedure applies in these cases?

You would have to oppose the making of the order in the court of the originating jurisdiction before the order is made. If the law of that State so provides, anyone with an interest in the case should be informed that the court is hearing an application for an order. The law of that Member State will say what action you can take to oppose the order being made.

17 Which law does the court apply in a proceeding on parental responsibility where the child or the parties do not live in this Member State or are of different nationalities?

The proceedings must be brought in the court in the jurisdiction where the child is habitually resident.


The national language version of this page is maintained by the respective EJN contact point. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. Neither the EJN nor the European Commission accept responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

Last update: 13/09/2016

Parental responsibility - Northern Ireland

TABLE OF CONTENTS


1 What does the legal term “parental responsibility” mean in practical terms? What are the rights and obligations of a holder of parental responsibility?

Link opens in new windowThe Children (Northern Ireland) Order 1995 defines parental responsibility as all the rights, duties, powers and responsibilities which, by law, a parent has in relation to his child. The Order does not list what those rights and responsibilities are. However, it has been recognised that those with parental responsibility have:

  • a duty to protect, provide a home and care for the child;
  • the ability to determine where the child should live;
  • the ability to decide who may have contact with the child;
  • a duty to secure the child's education;
  • the right to consent to the granting of a passport;
  • a duty to secure medical treatment or assistance and the right to consent to such treatment or assistance;
  • the right to name the child;
  • the right to secure religious instruction for the child.

Parental responsibility should, at all times, be exercised in the best interests of the child and all those with parental responsibility should be consulted before an important decision is made. However, if agreement cannot be reached, the court may be asked to resolve the issue.

2 As a general rule, who has the parental responsibility over a child?

If a child's parents were married to each other at the time of his birth, they will each have parental responsibility for him.

If a child's parents were not married to each other at the time of his birth, the mother will automatically have parental responsibility for him and the father may acquire parental responsibility for him by:

  • marrying the mother;
  • asking the court to make a parental responsibility order in his favour;
  • entering into a parental responsibility agreement with the mother (see question 5 below); or
  • being registered as the child's father (this only applies to births registered within the U.K. after 15th April 2002).

If an unmarried father has acquired parental responsibility by court order, agreement or registration, that responsibility can only be brought to an end by an order of the court.

If a court grants a residence order to an unmarried father, it must, if he would not otherwise have parental responsibility, also make a parental responsibility order in his favour.

A non-parent may acquire parental responsibility for a child by virtue of a court order.

3 If the parents are unable or unwilling to exercise parental responsibility over their children, can another person be appointed in their place?

A person who has parental responsibility for a child cannot surrender or transfer that responsibility. She or he can, however, arrange for someone else to discharge that responsibility on his or her behalf.

In addition, a non-parent may acquire parental responsibility for a child by obtaining a court order (for example, a residence order, emergency protection order or care order).

As a general rule, a parent does not automatically lose parental responsibility for a child simply because someone else acquires it. However, an adoption order transfers parental responsibility from the natural parents to the adoptive parents.

If a parent has parental responsibility for a child, she or he may appoint another person to be the child’s guardian in the event of his or her death.

4 If the parents divorce or split up, how is the question of parental responsibility determined for the future?

Parental responsibility for a child continues post-divorce and is limited only to the extent that a voluntary agreement or court order settles issues between the parents or the parents and third parties.

5 If the parents conclude an agreement on the question of parental responsibility, which formalities must be respected to make the agreement legally binding?

If the parents are unmarried, they can enter into a parental responsibility agreement. This must be:

If the parents were married, but have separated or divorced, they can agree how they will meet their parental responsibilities and have that agreement made an order of court, which may be varied at a later stage to take account of changed circumstances.

6 If the parents cannot come to an agreement on the issue of parental responsibility, what are the alternative means for solving the conflict without going to court?

In Northern Ireland there are a number of agencies that provide mediation services and can assist in the amicable resolution of disputes. Information can be found on the websites of the Link opens in new windowUK College of Family Mediators, Link opens in new windowFamily Mediation Northern Ireland, Link opens in new windowBarnado's Northern Ireland, Link opens in new windowFamily Support Northern Ireland, Link opens in new windowDispute Resolution Service Northern Ireland and Link opens in new windowMediation and Counselling Northern Ireland.

7 If the parents go to court, what issues can the judge decide upon relating to the child?

The courts in Northern Ireland have a broad range of powers at their disposal and, in particular, can resolve issues relating to –

  • a child’s removal from Northern Ireland
  • residence (where, and with whom, a child should live);
  • contact (when, where and with whom a child may have contact);
  • financial provision;
  • education;
  • religious instruction;
  • medical treatment;
  • the administration of the child’s estate.

8 If the court decides that one parent shall have sole custody of a child, does this mean that he or she can decide on all matters relating to the child without first consulting the other parent?

The courts have recognized the need for flexible and practical arrangements wherever possible. So if a child is being looked after by one parent, that parent needs to be able to take the decisions that have to be taken while the child is in his or her care.

At the same time, there is an expectation that major decisions will be discussed with the other parent and resolved amicably. However if agreement is not reached the court can grant a specific issue order (which resolves a particular question) or a prohibited steps order (which specifies the type of decision that cannot be taken without the consent of the court).

If a residence order is in force with respect to a child, no person may cause the child to be known by another surname or remove him/her from the United Kingdom for one month or more without the written consent of every person who has parental responsibility or the consent of the court.

9 If the court decides that the parents shall have joint custody of a child, what does this mean in practice?

When the child is with one parent, that parent will make required routine decisions. However, it is expected that the other parent will be consulted about major decisions.

10 To which court or authority should I turn if I want to lodge an application on parental responsibility? Which formalities must be respected and which documents shall I attach to my application?

Ordinarily, an application for an order that will confer parental responsibility should be commenced in a Family Proceedings Court. However, if there are other family proceedings relating to the child pending in another court, the application may be commenced in that court.

Proceedings commenced in a Family Proceedings Court may be transferred up to a Family Care Centre or the High Court on a number of grounds (for example, if they are complex or involve a question of general public interest).

The addresses and telephone numbers of the courts can be found on the website of the Northern Ireland Courts and Tribunal Service.

There are a number of forms that must be completed and lodged in the relevant court office. Most of these are in a standard form. The court office will be able to provide copies of the forms and explain how to complete them. However, court staff cannot give legal advice or tell you what to say. A court fee will also be payable.

11 Which procedure applies in these cases? Is an emergency procedure available?

When the application is lodged, the court office will set a date for the hearing and the other party will be notified of that date. If the matter is not resolved before the date set for hearing, a magistrate or judge will hear the evidence and reach a decision. There are no emergency procedures for obtaining parental responsibility.

12 Can I obtain legal aid to cover the costs of the procedure?

You are entitled to apply for legal aid. However, the level of financial assistance provided (if any) is subject to a financial means assessment. Even if you are assessed as being financially eligible, you may have to make a financial contribution towards the costs. By agreement this contribution may be repaid to the Legal Services Agency over a period of time. In addition to the financial eligibility criteria you must also satisfy a merits test i.e. that there must be a reasonable grounds for bringing, or defending, the proceedings and it must be reasonable in all the circumstances to do so.

13 Is it possible to appeal against a decision on parental responsibility?

An appeal lies:

  1. from a Family Proceedings Court to a Family Care Centre; and
  2. from a Family Care Centre to the High Court

against the making or refusal to make an order.

On appeal, the High Court may, upon the application of a party, state a case on point of law for the opinion of the Court of Appeal. Otherwise, the High Court's decision is final.

The Court of Appeal's decision on the case stated by the High Court is final.

14 In certain cases, it may be necessary to apply to a court to have a decision on parental responsibility enforced. Which court should I use in such cases and which procedure applies?

In a Family Proceedings Court (where most matters relating to children are dealt with) an application may be made to address a specific issue relating to the exercise of parental responsibility. Contact details are noted above.

15 What should I do to have a decision on parental responsibility that is issued by a court in another Member State recognised and enforced in this Member State?

Council Regulation (EC) No 2001/2003 (“Brussels IIa) provides for certain decisions on the exercise of parental responsibility given in one Member State to be enforced in another Member State.

The decision must have been declared enforceable in that other State. In Northern Ireland you must apply to have the decision registered in the High Court.

16 To which court in this Member State should I turn to oppose the recognition of a decision on parental responsibility issued by a court in another Member State? Which procedure applies in these cases?

You would have to oppose the recognition in the court in the other Member State under the procedure applicable in that court.

17 Which law does the court apply in a proceeding on parental responsibility where the child or the parties do not live in this Member State or are of different nationalities?

Proceedings must be brought in the court in the jurisdiction where the child is habitually resident.

If the court in Northern Ireland decides it has jurisdiction to deal with the proceedings, it will apply the law in Northern Ireland.


The national language version of this page is maintained by the respective EJN contact point. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. Neither the EJN nor the European Commission accept responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

Last update: 13/08/2018

Parental responsibility - Scotland

TABLE OF CONTENTS


1 What does the legal term “parental responsibility” mean in practical terms? What are the rights and obligations of a holder of parental responsibility?

In Scotland, the rights and obligations of a parent are called “parental responsibilities and parental rights”, or PRRs.

A person with parental responsibilities for a child should, so far as it is practicable and in the interests of the child:

• safeguard and promote the child’s health, development and welfare;

• provide the child with direction and guidance in a manner appropriate to the child’s stage of development

• if the child is not living with the parent, maintain personal relations and direct contact with the child on a regular basis

• act as the child’s legal representative.

A person has rights in order to fulfill his or her responsibilities. The parental rights are:

• to have the child living with him or otherwise to regulate the child’s residence;

• to control, direct or guide, in a manner appropriate to the stage of development of the child, the child’s upbringing;

• if the child is not living with him, to maintain personal relations and direct contact with the child on a regular basis;

• to act as the child’s legal representative.

2 As a general rule, who has the parental responsibility over a child?

A child’s mother has PRRs automatically. A child’s father will have PRRs if:

• He was married to the mother at the time of conception or subsequently

• On or after the 4 May 2006, he jointly registered his child’s birth with the mother

• He and the mother completed and registered an agreement in a prescribed form (see the answer to question 5 below)

• A court gave them to him.

Anyone with an interest in a child can ask the court for PRRs.

3 If the parents are unable or unwilling to exercise parental responsibility over their children, can another person be appointed in their place?

Yes. A court can give a person other than a parent PRRs or can appoint a person as a child’s guardian.

4 If the parents divorce or split up, how is the question of parental responsibility determined for the future?

If parents divorce or separate, this does not, of itself, affect who has PRRs. If parents cannot agree about what is best for their child, one or both can ask the court to decide matters. The court must regard the welfare of the child concerned as its paramount consideration. It must not make an order unless to do so would be better for the child than to make no order. The court must also, taking account of the child’s age and maturity, have regard to any views the child wishes to express.

5 If the parents conclude an agreement on the question of parental responsibility, which formalities must be respected to make the agreement legally binding?

In the case of an agreement giving the father PRRs, the agreement must be in a prescribed form and must be registered in order to have legal effect. The form is available on the Scottish Government’s website.

Each parent must sign the agreement in the presence of one witness who must be aged 16 or over and who must also sign the agreement. The same person can witness both signatures. The agreement must be registered in the Books of Council and Session while the mother still has the PRRs she had at the time of signing the agreement.

6 If the parents cannot come to an agreement on the issue of parental responsibility, what are the alternative means for solving the conflict without going to court?

There are a variety of methods of “alternative dispute resolution”. These include:

• Family mediation (where a mediator gives family members the opportunity to talk about their concerns, explore options, and agree a way forward)

• Lawyer mediation (where the mediator is a lawyer who also holds a qualification in mediation)

• Arbitration (where the parties agree to appoint a person called an “arbitrator” to resolve a dispute and to be bound by the arbitrator’s decision)

• Collaborative law (where both parties have a lawyer and the lawyers agree to attempt to resolve the dispute outside of court)

7 If the parents go to court, what issues can the judge decide upon relating to the child?

The judge can make orders in relation to:

• parental responsibilities;

• parental rights;

• guardianship;

• the administration of a child’s property.

8 If the court decides that one parent shall have sole custody of a child, does this mean that he or she can decide on all matters relating to the child without first consulting the other parent?

Everyone with PRRs in relation to a child should be involved in decisions about that child. Where only one parent has PRRs, that parent can decide on all matters without consulting the other parent.

9 If the court decides that the parents shall have joint custody of a child, what does this mean in practice?

If both parents have full PRRs in relation to a child, they both have the right to have the child living with him or her, or to otherwise regulate the child's residence. Where the child lives with one of them, the other has the right to maintain personal relations and direct contact with the child on a regular basis.

The general principle is that where possible, both parents should contribute to the upbringing of their children, where this is practicable and in the interests of the child. If parents cannot agree, the court can determine with whom a child resides, and when. It is possible for the court to order that a child should reside with different people at different times.

10 To which court or authority should I turn if I want to lodge an application on parental responsibility? Which formalities must be respected and which documents shall I attach to my application?

i. An action concerning parental responsibilities can be raised in either the Court of Session or in the Sheriff Court. The application can be made within an ordinary action for divorce or separation.

ii. Which court to use is a matter of personal choice. Where no such action for divorce or separation is pending, the Court of Session has jurisdiction to deal with an application for a parental responsibilities order where the child is habitually resident in Scotland and the Sheriff Court has jurisdiction to entertain such an action where the child is habitually resident within the Sheriffdom in which the Court is geographically situated. The Link opens in new windowScottish Courts and Tribunals Service website contains a map showing court locations and lists addresses and contact details.

iii. An application concerning parental responsibilities and rights requires to be made in the form of a Summons in the Court of Session and by Initial Writ in the Sheriff Court. As in the case of divorce actions each Court has its own set of rules which set out the form such application should take. See paragraph 11(6) of the page on divorce.

Formalities and documentation

iv. A fee will be payable in either Court on the lodging of such an application. See paragraph 11(8) of the page on divorce concerning possible fees exemptions.

v. With any of these types of application you will require to present an extract entry of the child's birth. A photocopy will not be accepted by the court nor will an abbreviated form of certificate.

11 Which procedure applies in these cases? Is an emergency procedure available?

There is no simplified procedure available in applications of this type. The rules referred to in paragraph 11(6) of the page on divorce set out the procedures. It is possible to seek an interim order where this is thought to be necessary.

12 Can I obtain legal aid to cover the costs of the procedure?

Advice and Assistance is available on parental responsibility matters subject to the normal statutory financial tests. Civil Legal Aid is also available on parental responsibility matters, subject to the three normal statutory tests of financial eligibility, reasonableness and probable cause.

13 Is it possible to appeal against a decision on parental responsibility?

Yes.

14 In certain cases, it may be necessary to apply to a court to have a decision on parental responsibility enforced. Which court should I use in such cases and which procedure applies?

It may be possible to bring proceedings in the same action for failure to comply with a court order. If there is a failure to comply, contempt of court proceedings could be taken.

15 What should I do to have a decision on parental responsibility that is issued by a court in another Member State recognised and enforced in this Member State?

If you wish to enforce a judgment from another Member State, the matter is regulated by Council Regulation (EC) 2201/2003 (commonly known as Brussels IIa). A judgment of another Member State on the exercise of parental responsibility relating to a child is enforceable in Scotland where (1) an application has been lodged and (2) in consequence, the judgment has been declared enforceable in Scotland.

The procedure for lodging this application is set out in Scots law. Application must be made to the Court of Session and must be accompanied by specific documents (which are set out in Brussels IIa). You may find it helpful to get legal advice on this matter.

Under Brussels IIa, there are certain judgments that are enforceable in other Member States without the need for a declaration of enforceability.

16 To which court in this Member State should I turn to oppose the recognition of a decision on parental responsibility issued by a court in another Member State? Which procedure applies in these cases?

If you wish to challenge the recognition of a judgment from another Member State, the matter is regulated by Council Regulation (EC) 2201/2003 (commonly known as Brussels IIa). Brussels IIa lists the grounds on which the judgment shall not be recognised.

An application requires to be lodged according to the procedure set out in Scots law. The application must be made to the Court of Session and must be accompanied by specific documents (which are set out in Brussels IIa). You may find it helpful to get legal advice on this matter.

Under Brussels IIa, there are certain judgments that are enforceable and recognised in other Member States without the need for a declaration of enforceability.

17 Which law does the court apply in a proceeding on parental responsibility where the child or the parties do not live in this Member State or are of different nationalities?

If the court in Scotland has jurisdiction, it will generally apply Scots Law. If it is thought that a particular question is governed by a relevant foreign law which is different from Scots law, that law must be averred and proved. There may be unusual circumstances where foreign law is pleaded by the parties in a case in which circumstances the Scottish court may take this into consideration.


The national language version of this page is maintained by the respective EJN contact point. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. Neither the EJN nor the European Commission accept responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

Last update: 06/03/2018

Parental responsibility - Gibraltar

TABLE OF CONTENTS


1 What does the legal term “parental responsibility” mean in practical terms? What are the rights and obligations of a holder of parental responsibility?

For the purposes of Gibraltar law, parental responsibility would refer to the custody, care and control of a child, normally exercised by a parent or parents or by an appointed guardian. Generally, a parent or guardian is responsible for the custody and upbringing of a child and for the administration of any property belonging to a child or held in trust for the same.

The term parental responsibility extends to the father, mother or any appointed guardian who fulfils his or her parental responsibilities in relation to a particular child. Parental responsibility also extends to control either directly or by providing guidance, in a manner appropriate to the stage of development of the child. It also extends to the child’s upbringing, if the child is not living with him, to maintain personal relations and direct contact on a regular basis; and to act if required as the child’s legal representative.

2 As a general rule, who has the parental responsibility over a child?

Generally, in relation to the custody or upbringing of a child and the administration of any property, a mother has the same rights and authority as a father. Such rights and authority of a mother and father are equal and can be exercised by either without the other. These general rights are subject to any order imposed by the Link opens in new windowGibraltar courts.

Where a child's father and mother were married to each other at the time of his birth, according to Gibraltar law each parent has parental responsibility over the child. If however they had not, only the mother would have parental responsibility at birth. This is not a strict or absolute rule as Gibraltar law recognizes that if the father is registered as “the father” by the mother he would acquire parental responsibility over the child. Also if ordered by the Court.

One, two or more persons however could also have parental rights in respect of a child. They may not exercise however that right without the consent of the other or, as the case may be, of any of the others, unless stated by any order of the court, deed or agreement.

3 If the parents are unable or unwilling to exercise parental responsibility over their children, can another person be appointed in their place?

On the death of a parent, the surviving parent becomes the child's guardian either alone or jointly with any guardian appointed by the deceased parent. If the deceased parent had not appointed a guardian or the nominated guardian is either dead or refuses to act, then a guardian can be appointed by a court if it thinks fit.

A court may, on the application of the mother or father of a child, make an order regarding the residence of the child and the right of contact to the child of his mother or father. The court also has power to give the residence of the child to any person (whether or not one of the parents). However, the grant of residence to one parent is unenforceable while both parents are living together.

4 If the parents divorce or split up, how is the question of parental responsibility determined for the future?

In the case of a divorce, the Supreme Court of Gibraltar has the power exercisable either before or after the final decree, to make provision for the custody, maintenance and education of the children of the marriage or even direct that proceedings be taken to place the children under the protection of the Court. The Supreme Court cannot make absolute a decree of divorce unless it is satisfied that satisfactory arrangements have been made for any children.

Where the parents separate, an agreement may be entered between the parties whereby one of them may choose to give up all or some of their parental rights. Such an agreement however, shall not be enforced by a court if the court is of the opinion that it would not be for the benefit of the child to give effect to it.

5 If the parents conclude an agreement on the question of parental responsibility, which formalities must be respected to make the agreement legally binding?

As indicated in question 4 above, where a parent enters into a separation agreement whereby he or she purports to give up all or some of his or her parental rights, such agreement will only be enforced by a court where it is of the opinion that to give effect to it would be for the benefit of the child.

6 If the parents cannot come to an agreement on the issue of parental responsibility, what are the alternative means for solving the conflict without going to court?

If the issue of parental responsibility has been raised within the context of divorce proceedings, then the determination of this issue comes within the jurisdiction of the Supreme Court of Gibraltar. However, some social assistance may be obtained through marriage counselling. A marriage counselling service is provided by the Roman Catholic Church in Gibraltar. It may also be possible to deal with some of the issues through mediation.

7 If the parents go to court, what issues can the judge decide upon relating to the child?

The judge can decide any issue that he deems may affect the welfare of the child.

8 If the court decides that one parent shall have sole custody of a child, does this mean that he or she can decide on all matters relating to the child without first consulting the other parent?

Once full custody is granted to a parent, he or she can then decide on all matters relating to the child without first consulting the other parent unless doing so constitutes a breach of an existing court order; for example, an order concerning access to the child.

9 If the court decides that the parents shall have joint custody of a child, what does this mean in practice?

Joint custody of a child means that both parents have equal rights and responsibilities in relation to the child. These rights can be exercised jointly or severally.

10 To which court or authority should I turn if I want to lodge an application on parental responsibility? Which formalities must be respected and which documents shall I attach to my application?

If the application for parental responsibility is made in relation to or as a consequence of divorce proceedings, then the application should be made to the Supreme Court of Gibraltar. An application is made by way of summons, supported by affidavit evidence. Upon the filing of these papers, the Supreme Court Registry would proceed to set a date for the hearing of the application.

Applications for a child in need of care to be made a ward of court should also be made to the Supreme Court of Gibraltar.

Where the issue of parental responsibility does not arise out of divorce proceedings, then an application can be made to the Magistrates' Court of Gibraltar. The application should be in the form of a written complaint setting out the relief sought and the grounds on which it is based. A copy of the child's birth certificate should also be included with the application as well as a copy of the marriage certificate, where applicable. Upon receipt of the complaint, the Court would proceed to list the matter for hearing and inform the parties of the return date.

11 Which procedure applies in these cases? Is an emergency procedure available?

In all cases, either the Supreme Court or Magistrates' Court would proceed to set a date for the hearing of the relevant application and inform the parties. Parties should attend court on the date set together with their legal representatives if applicable.

There are emergency procedures available where it appears that a child may be in need of care.

12 Can I obtain legal aid to cover the costs of the procedure?

In both the Magistrates' Court and the Supreme Court, legal assistance may be available subject to the applicant having an annual income of less than £5000 and subject to a means test. Applications for legal assistance in either court should be made to the Supreme Court and application forms are available from the Supreme Court Registry.

13 Is it possible to appeal against a decision on parental responsibility?

Where a decision on parental responsibility is made by the Magistrates' Court, an appeal may be made to the Supreme Court. Where the decision is made by the Supreme Court, it may be possible to appeal to the Court of Appeal.

14 In certain cases, it may be necessary to apply to a court to have a decision on parental responsibility enforced. Which court should I use in such cases and which procedure applies?

An application should be made to the Court that made the original order of parental responsibility. If the court was the Magistrates' Court, then a complaint should be filed setting out the grounds of the complaint. In the Supreme Court, a Summons should be filed, supported by affidavit evidence where appropriate.

15 What should I do to have a decision on parental responsibility that is issued by a court in another Member State recognised and enforced in this Member State?

A judgment on parental responsibility given in a Member State arising out of divorce, legal separation or annulment proceedings can be recognised in Gibraltar. In order to enforce such a judgment, an application should be made to the Magistrates’ Court for a declaration of enforceability.

16 To which court in this Member State should I turn to oppose the recognition of a decision on parental responsibility issued by a court in another Member State? Which procedure applies in these cases?

The decision on the application for a declaration of enforceability may be appealed against by either party. An appeal lies to the Supreme Court if the decision was made by the Magistrates' Court.

17 Which law does the court apply in a proceeding on parental responsibility where the child or the parties do not live in this Member State or are of different nationalities?

The Courts of Gibraltar will apply Gibraltar law, which includes local legislation, as well as any Acts or other provisions extended to Gibraltar from time to time.


The national language version of this page is maintained by the respective EJN contact point. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. Neither the EJN nor the European Commission accept responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

Last update: 29/05/2018