Close

BETA VERSION OF THE PORTAL IS NOW AVAILABLE!

Visit the BETA version of the European e-Justice Portal and give us feedback of your experience!

 
 

Navigation path

menu starting dummy link

Page navigation

menu ending dummy link

Parental responsibility - Luxembourg

Please note that the original language version of this page French 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 terms of terminology, in the Grand Duchy of Luxembourg the term ‘parental authority’ is used in preference to ‘parental responsibility’. This concept encompasses all the rights and obligations assigned by law to parents in respect of the person and property of their dependent minor children for the purpose of fulfilling their duties of protection, education and maintenance.

Parents have parental authority in order to protect their children in terms of their safety, health and morality. They have the right and duty of custody, supervision and education. Parental authority is not an absolute and discretionary right of parents. Parental authority must in fact be exercised in the interests of the child.

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

During a marriage, the general rule is that the father and mother exercise parental authority jointly. If the parents are not married, in principle the mother exercises 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?

If parents die or are unable to take care of their children, a guardian must be appointed. The last surviving parent can choose the guardian. If a guardian has not been chosen, the family council or, failing that, the guardianship judge (juge des tutelles) appoints a guardian.

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

In the event of divorce by mutual consent, parents can decide by mutual agreement to exercise joint custody. For all other forms of divorce, parental authority is exercised by the parent to whom the court has awarded custody.

Except in exceptional and serious circumstances, the Luxembourg courts often award custody to the mother, especially if the child is very young. The parent who does not have custody has access and supervision rights.

If custody has been awarded to a third party, the other powers of parental authority continue to be exercised by the father and mother. However, if the court appoints a third party as temporary guardian, it can decide that this third party must request the appointment of a guardian.

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

Any agreement between parents on the question of parental authority is legally binding only if it is approved by the competent 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?

Parents can have recourse to family mediation.

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

The judge can decide on the following issues:

  • Right of custody: except in exceptional and serious circumstances, the Luxembourg courts often award custody to the mother, especially if the child is very young.
  • Access and residence right of the parent who does not have custody: the parent who was not awarded custody of the child can be denied this right only on serious grounds.
  • Access right of grandparents: grandparents can be denied this right only on serious grounds.
  • Correspondence or access rights of other persons, whether or not relations: the court awards such rights in exceptional situations.
  • Maintenance for the child: child support, which is set according to the child’s needs and the ability of each parent to contribute, continues after the age of majority if the child is unable to support himself/herself.

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 parent who has custody has an obligation to inform the parent who does not have custody, which means that he/she must inform the latter of important choices and significant events in relation to the child. While the parent who does not have custody has a certain right to supervise the child’s maintenance and education, this does not entitle him/her to be informed of every detail of the child’s life.

If the parent who does not have custody believes that the parent with custody is using this right in a manner contrary to the interests of the child, he/she can refer the matter to the competent court to resolve the dispute. In this case, the court can order a change of custody or impose on the parent who has custody certain conditions relating to the child’s education.

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

It is accepted that, when parental authority is exercised jointly by two parents who live apart, this presupposes that there is a broad understanding and consensus to ensure continuous and constructive cooperation in decisions relating to the child’s custody, supervision and education.

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 guardianship judge has jurisdiction either if the father and mother cannot agree on what is needed in the interests of the child or if, under the rules on simple legal administration, the two legal administrators who are expected to work together cannot agree.

In divorce or legal separation proceedings, in principle the judge hearing applications for interim measures (juge des référés) has sole jurisdiction to decide on the temporary custody of children. However, the measures that he/she orders can be changed by the judge at the juvenile court (tribunal de la jeunesse) if the child’s physical or mental health or his/her education or social or moral development are jeopardised. In the event of divorce or legal separation, the court that grants the divorce or legal separation decides at the same time on the question of parental authority. Following the divorce or legal separation, the juvenile court can decide, change or add to the right of custody.

Actions for total or partial delegation of parental authority are brought before the district court (tribunal d'arrondissement) for the domicile or habitual residence of the minor child. The court arranges for all appropriate information measures and notably a study of the child’s personality, in particular through a social investigation, medical, psychiatric and psychological tests, an observation of the child’s behaviour or a career guidance examination. The parents or guardian and the person who has fostered the child are heard. Lastly, any temporary measure deemed useful can be ordered by the court with regard to the child’s custody and education.

Finally, actions for total or partial deprivation of parental authority are brought by the public prosecutor before the district court responsible for civil cases for the domicile or residence of the father or mother. If the father or mother has no known domicile or residence in the country, the action is brought before the court for the district in which the children are located. If the children are not all located within the same district, the action is brought before the district court of Luxembourg. The public prosecutor arranges for an investigation into the situation of the minor’s family and the morality of his/her parents. The latter are ordered to submit to the court any comments and objections that they deem appropriate. In any event, the court can, of its own motion or at the request of the parties, adopt any temporary measures that it deems useful for the custody of the child. Also, the court can, in any event, revoke or change those measures.

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

Actions before the guardianship judge are brought through an application made by the father or mother. The parties do not have to go through a lawyer.

As regards applications relating to parental authority in divorce or legal separation proceedings, see point 11 of the ‘Divorce - Luxembourg’ fact sheet.

Following a divorce or legal separation, one of the parents or the public prosecutor can submit an application to the juvenile court. Four copies of the application on ordinary paper must be submitted to the clerk of the juvenile court for the district in which the child has his/her domicile or habitual residence. In addition to the facts on which the application is based, it must give the surnames, first names, professions and domiciles of the parties. In order to be valid, it must indicate the address for service in the Grand Duchy of any applicant who does not live there. The parties do not have to go through a lawyer.

Actions for delegation of parental authority are brought through an application. There is no need to go through a lawyer. The application can be submitted to the public prosecutor who refers the case to the court. If the father, mother or guardian wants to recover the rights that they have delegated, they must submit an application to the court for the domicile or habitual residence of the person to whom these rights have been entrusted.

Finally, actions for deprivation of parental authority are brought through an application setting out the facts, which is accompanied by supporting documents. The court clerk notifies the parents or ascendants, against whom the action has been brought, of the application and summons them. The latter do not have to go through a lawyer. If the father, mother or guardian wants to recover the rights that have been removed from them, they must submit an application to the court for the domicile or habitual residence of the person to whom these rights have been entrusted.

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

People whose income is regarded as insufficient under Luxembourg law can receive legal aid. To receive this aid, they must complete a questionnaire that can be obtained from the central social work department (service central d'assistance sociale) and send it to the territorially competent president of the bar association (Bâtonnier de l'Ordre des avocats) who will take the decision.

Legal aid covers all costs arising from the court proceedings, procedures or actions for which it is granted. It particularly covers stamp and registration duties, clerks’ fees, lawyers’ fees, court officers’ duties and fees, notaries’ expenses and fees, technicians’ expenses and fees, witness taxes, fees of translators and interpreters, fees for certificats de coutume (a certificate or affidavit as to the applicable law), travel expenses, duties and fees for registration, mortgage and security formalities, and fees for publication in newspapers.

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

A decision on parental authority can be appealed before the civil chamber of the court of appeal (cour d'appel, chambre civile). In principle, the time-limit for appeal is 40 days. However, the time-limit for appeal against a decision made by a judge hearing applications for interim measures is 15 days.

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?

Luxembourg law provides for two ways of enforcing a decision on parental authority in the event of systematic refusal to comply.

Firstly, there is a civil penalty, i.e. a periodic penalty payment whereby the recalcitrant parent is ordered by a court to pay a sum of money for each day, week or month of delay in order to force the latter to meet his/her obligation in kind. The action is brought through a summons to appear before the district court for the child’s place of residence. The parties must go through a lawyer.

Secondly, there are criminal penalties. Failure to represent a child is punishable by a prison sentence of eight days to two years and/or a fine of EUR 251 to EUR 2 000. If the guilty party has been totally or partially deprived of parental authority over the child, then the prison sentence can be increased to three years. The public prosecutor’s office can take on the case of its own motion or through a criminal complaint submitted by the victim. The district court responsible for criminal cases sets the criminal penalties and, where applicable, the damages to be awarded to the victim. The parties do not have to go through a lawyer.

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?

Under Link opens in new windowCouncil Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for the children of both spouses (‘Brussels II Regulation’), a decision on parental authority given by the court of another country of the European Union is automatically recognised in the Grand Duchy. In other words, recognition of such decisions is not subject to any procedure.

However, a decision given by the court of another country of the European Union on the exercise of parental authority with regard to a child of both the parties concerned, which is enforceable in that country and which has been served or notified, can only be enforced in the Grand Duchy after it has been declared enforceable at the request of any interested party. The request for the declaration of enforceability must be submitted to the presiding judge of the district court through a lawyer. The decision of the presiding judge of the district court can be appealed before the court of appeal. An appeal on points of law against the decision of the court of appeal can be brought before the court of cassation (cour de cassation).

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?

Under the ‘Brussels II Regulation’, any interested party can ask the presiding judge of the district court to give a decision of non-recognition in relation to parental authority ordered by a court of another country of the European Union. This party must go through a lawyer.

The request can be refused only on the following grounds:

  • It is manifestly not in the public interest.
  • The child has not been heard.
  • The rights of the defendant have not been respected,
  • It is incompatible with a decision given in related proceedings.

Either party may appeal to the court of appeal against the decision of the presiding judge of the district court. The decision of the court of appeal can be appealed on points of law before the court of cassation.

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 Hague Convention of 5 October 1961 concerning the powers of authorities and the law applicable in respect of the protection of infants applies to all children who have their residence in Luxembourg or in another State that is a signatory to this Convention. According to Luxembourg learned opinion, Article 3 of the Convention is to be interpreted as subjecting all aspects of parental authority that result in prerogatives giving authority over the person of the child to the substantive law of the State of the minor’s nationality. This essentially involves the rights to decide on the person of the child, such as the right of custody, the right to determine their residence, and perhaps also the right to choose their education. By contrast, it could be said that the aforementioned provision does not cover the rights and obligations regarding the administration of their property.

In accordance with Article 15 of the aforementioned Convention, Luxembourg reserves the jurisdiction of its authorities empowered to decide on a petition for annulment, dissolution or modification of the marital relationship of the parents of an infant to take measures for the protection of his/her person or property. However, the authorities of the other Contracting States are not bound to recognise these measures.

  • Except in cases where the aforementioned Convention is applicable, a distinction must be made between the child’s natural and legitimate filiation:
    • In the case of natural filiation, the applicable law is the law of the child’s nationality.
    • In the case of legitimate filiation, according to learned opinion, the law governing the effects of the marriage applies, i.e.:
      • the common national law of the parents, if they have the same nationality;
      • the law of the common domicile of the parents, if they have different nationalities.

Following the divorce of the parents, it is generally accepted by case-law that the law applicable to the divorce applies, i.e.:

  • the national law of the spouses, if they have the same nationality;
  • the law of the effective common domicile of the spouses, if they have different nationalities;
  • Luxembourg law, if spouses of different nationalities do not have an effective common domicile.

Further information

Link opens in new windowLegilux


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: 07/12/2018