Marco Calabrese is an International Family Law Attorney and Collaborative Law Attorney shortlisted by the US Embassy in Rome, Contributor of the World Bank Publications for Gender Equality. Owner of the Family Law Italy, a boutique law firm, located in Rome, Italy.
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When transnational couples divorce, often grandparents divorce from their grandchildren as well : this can be particularly painful, especially for the elderly who consider their descendants as the natural outcome of their life.
While the relationship between divorced parents and their children, as difficult as it may become, is certainly protected by the law and by the international Conventions, the position of the grandparents may look more unstable.
In Case C-335/17, European Court of Justice ruled for the first time, on the application of Regulation No 2201/2003 to a request for rights of access by grandparents, for the purpose of ascertaining whether the court having jurisdiction to rule on the arrangements for exercising such rights must be determined on the basis of that regulation or on that of the rules of private international law of the Member States.
Ms V. a grandmother from Bulgaria after having argued that she was unable to maintain quality contact with her grandson and that she had unsuccessfully sought the support of the Greek authorities, applied to a Bulgarian court of first instance, on the basis of Article 128 of the Family Code, for a determination of arrangements for her to exercise rights of access to her minor grandson. She requested that she be allowed to see him regularly on certain weekends of each month and that he stay at her home for one or two weeks during his holidays, twice a year.
The ECJ granted the application of Ms V. stating that it is apparent from the Commission working document on mutual recognition of decisions on parental responsibility (COM(2001) that the EU legislature asked itself who may exercise parental responsibility or be granted rights of access. It considered several options, in particular limiting the persons concerned to one of the parents of the child and, conversely, imposing no limitations to specific persons whatsoever. The document mentions, among others, grandparents, referring to the draft European Council Convention on Contact concerning Children, which recognises the right of a child to contact not only with his or her parents but also with other persons with whom the child has family ties, such as grandparents. The EU legislature ultimately chose not to provide for a limitation of the range of persons who may exercise parental responsibility or hold rights of access.
This is the reasoning of ECJ in granting rights of access to the grand mother.
In its case-law, the Court refers to the interest of children in maintaining their family life, which is also protected by the fundamental right of respect for family life guaranteed by Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Big news for grandparents, more family ties ( and family life) for the children of divorced parents.