GENERAL INTRODUCTION

THE COMPARED JURISDICTIONS

This book is aimed at analysing how court decisions (precedents) function as a source of law in various jurisdictions. It compares jurisdictions from all over the world, from different legal families and with diverse legal traditions. Only the contribution from England and Wales represents a ‘pure’ common law jurisdiction. South Africa represents a mixed jurisdiction with a fairly new constitution. Traditional civil law jurisdictions are represented by the French legal family (Brazil, France and Italy) and the German legal family (Germany). The Nordic legal family is represented by Sweden. China and Russia are civil law systems that display interesting new developments.

The contributions provide stimulating materials for comparison since they are similar, yet different enough for a comparative analysis. Such similarities and differences comprise, for example, their traditional and modern attitudes towards precedent, their court systems as well as their division of the roles of the judiciary and the legislature.

WHY PRIVATE LAW?

This book focuses on private law. This is a particularly interesting area of law to compare for two reasons. First, precedents are less controversial in private law as the democratic deficit is less significant compared to other areas of law. Second, statutory private law often needs to be supplemented and developed by precedents due to a need to fill gaps or to interpret abstract statutory texts.

A GENERAL INTRODUCTION TO LEGAL PRECEDENT

In France, precedent is perceived as constituting a concept specific to common law systems. It is therefore usually equated with the French term jurisprudence. However, what characterises jurisprudence in French law is that it officially has no binding force, since there is no principle of stare decisis. The status of precedent in the civil and common law systems thus constitutes their fundamental difference. The lack of legal authority of case law is essentially due to two provisions of the French Civil Code. Firstly, Article 5 of the Civil Code prohibits judges from issuing rulings by way of general and regulatory provisions. Secondly, judgments, whatever they may be, have effect only for the parties, in accordance with the principle of relative res judicata, enshrined in Article 1355 of the Civil Code. On the other hand, in the field of private law, case law, especially that emanating from the Cour de cassation, would be given genuine de facto authority, which would take the form of two complementary rules, similar to the horizontal and vertical dimensions of precedent in common law countries. First, a ‘law of continuity’, whereby ‘what the Cour de cassation has ruled in the past, it will rule in the future’. Secondly, a ‘law of imitation’, according to which ‘what the Cour de cassation has ruled, lower jurisdictions will rule’. The mystery that surrounds precedent in French law is therefore the result of a significant gap between what is said and what is actually done, a gap that has nevertheless tended to narrow in modern times. The official status of precedent is gradually evolving, with difficulty detaching itself from the history that has shaped it.

INTRODUCTION

The previous two chapters have been devoted to the discussion of the scope of EU competence in child relocation and the European framework of fundamental rights respectively. It has been shown that the EU competence is heavily limited, and the jurisprudence of the ECtHR leaves national authorities with a wide margin of appreciation in child relocation. Having highlighted how these discussions constitute an important point of reference for the analysis of child relocation as a restriction of EU free movement, it is now time to consider how the CJEU could legitimately interpret EU law if a child relocation case ever came to the Court. While family law remains among the areas of law most closely associated with national sovereignty and no legislation on child relocation exists on the EU level, EU law has long been recognised as capable of influencing such national law, with the CJEU being the ‘real engine’ of the process via its interpretations of the free movement provisions. Free movement is, indeed, the main trigger for a closer scrutiny of national child relocation provisions and measures in the EU context. The literature recognises that restrictions on child relocation might potentially be perceived as a restriction of EU law, requiring an adaptation of national child relocation laws and approaches to EU legal obligations. The first discussion of child relocation in the EU context goes back to the times of workers’ mobility provided by the Rome Treaty, but it is, in particular, the current legal framework expanded by the EU citizenship provisions that calls for more research on the topic, as outlined by Ruth Lamont.

INTRODUCTION

Europeanisation in family law, as a background metaconcept, has been understood and explored in many ways. Typically, it is perceived as a process of convergence driven by EU harmonisation of certain family law matters or a form of compliance with EU law obligations set out by the CJEU (the so-called ‘judicial Europeanisation’). What the first explains are the dynamics and outcomes of European law-making, while the second focuses on the scope of legal pressures coming from Luxembourg and subsequent adjustments on the national level. The book has already discussed cross-border child relocation in reference to both understandings, but neither can reveal much about the actual domestic effects of EU law on cross-border child relocation law at the present time. This is so because there is no EU legislation and no CJEU judgment on child relocation, and hence the nature and scope of any adaptational pressures remain unclear. This state of legal uncertainty creates simultaneously an opportunity to draw from EU law and a chance to ‘escape’ any perceived legal pressures. The previous chapter demonstrates, at the same time, that the influence of EU law might have a much more complex nature than its doctrinal obligations. In particular, the normatively inflicted methodology of EU law and its contextual constructions might provide relevant reference points for cases where EU mobility can constitute a legally relevant context.

INTRODUCTION

The existing literature on child relocation in the EU does not engage with fundamental rights in detail. However, with the EU Charter of Fundamental Rights becoming the EU's ‘third foundational treaty’, the analysis of child relocation within the EU legal context must take due account of the European fundamental rights framework. The role of the CJEU as an adjudicator of fundamental rights in family matters has indeed been growing over the years, but – due to the competence limitation – remains of indirect relevance for substantive family law, even if it directly influences the scope and nature of other EU law obligations. It is Europe's other supranational court – the European Court of Human Rights – that is the major player in family law, including matters of parental responsibilities and contact rights. According to Article 52(3) of the EU Charter of Fundamental Rights, rights contained in the EU Charter should be interpreted in line with the ECHR provisions that correspond to them, and therefore an analysis of the ECHR and the jurisprudence of its guardian, the ECtHR, are of direct relevance for EU law.

While these themes are not prominent in the EU-focused literature on child relocation, child relocation has been framed in human rights terms at large and discussed in the context of the European Convention on Human Rights more specifically.

INTRODUCTION

Family law has always been a highly sensitive area. On the one hand, it is traditionally considered to be closely related to national identity and cultural values, subject to the so-called ‘cultural constraints argument’. This argument about the unique cultural character of family law provisions has often been raised as an objection against its harmonisation and has been, in principle, recognised also by EU institutions. On the other hand, European family laws are said to belong to a pan-European culture that, while subject to national variations, makes family law designs rather contingent on political forces that are relatively ‘fluid’, leaving the question of harmonisation of family laws open. Notwithstanding whether the ‘cultural constraints argument’ is empirically true, it causes great controversies regarding the EU intervention in family matters. These controversies are multiplied by the alleged integrationist agendas behind the EU actions, the sometimes-questioned value of the existence of separate EU regimes (along those of global reach), and the potentially far-reaching consequences of such interventions for national autonomy. Critics of EU intervention in family law have always feared that this activity – formally limited to matters with cross-border implications – will spill over into more and more areas of substantive family law. This fear was not entirely unfounded, given the many voices from the scholarly community or EU institutions arguing that substantive harmonisation is not excluded, constituting both a natural follow-up and a necessary step to truly remove all the barriers to the free movement of pers

CROSS-BORDER CHILD RELOCATION: THE DYNAMICS OF EUROPEANISATION

Substantive family law is a firmly established and consistently defended competence of the Member States. And yet, in more and more cases family entitlements and EU citizenship rights intersect. This is demonstrated by the growing number of judgments in which the CJEU touches upon family matters, albeit often indirectly via the EU free movement and non-discrimination frameworks. Free movement is explicitly what might bring cross-border child relocation within the scope of EU law. It is, therefore, unsurprising that scholars and practitioners alike have expressed an interest in the legal obligations that EU law does or could impose on national child relocation laws. While EU legal actors have not yet acted in this field, the literature recognises that child relocation laws, with their potential effects on free movement, might prompt an interest of EU legislators in their harmonisation. EU law, due to its power to remove obstacles to free movement, is also potentially attractive to relocating parents involved in such disputes. Some are more welcoming of change that might be brought by EU law and others fear its potentially erosive effects. At the same time, EU citizens already cross borders in a world with the EU, where social reality and the legal frameworks of mobility necessarily intersect. National family laws are, therefore, increasingly faced with the need to accommodate the trans-border and multicultural features of transformations characterising modern family life, and child relocation law is no exception – with or without any EU intervention. However, not much is known about how national decision-makers currently approach EU law in child relocation cases, if at all.

CROSS-BORDER CHILD RELOCATION AND THE EU

This book is about laws on cross-border child relocation, understood as a long-term move to another country by a parent with his or her child. It is also about the European Union (EU), EU law, and what it means ‘to live with EU law’. And, bringing these themes together, it is about the influence of European law – both present and prospective – on national child relocation laws. As will be discussed, it is perhaps no longer a novel claim that EU law influences national family laws. EU law does so via legislative provisions on certain aspects of cross-border private relationships and by imposing obligations, as set out by the Luxembourg judges, to adjust national laws of EU Member States to free movement requirements. However, EU legal interventions rarely touch upon the core aspects of substantive family law, consistently considered to constitute a retained competence of EU Member States. While child relocation remains one of these core aspects, nowhere else do cross-border movement and substantive family law come together as clearly, prompting interest in the dynamics and effects of various EU influences in this understudied area of law.

The interest in the intersections of EU law and cross-border child relocation law emerges from three main observations.

INTRODUCTION

The previous three chapters have been devoted to an in-depth analysis of the nature and limits of doctrinal pressures that are, or could prospectively be, exerted by EU law on national child relocation laws. It is now time to take a closer look at the more complex and more subtle contextual influence of EU law. As noted before, the EU is generally ‘not meant to constitute its own legal subjects’. Due to the limitation of its competence and the institutional constraints, EU law is even less meant to do so in family law that remains interested in substantively different phenomena. However, it would be difficult to dispute the fact that EU law or the CJEU's judgments do indeed contain accounts of who human beings are, what expectations they hold, and how this presupposes normative answers to their situations. As individuals ‘anxious to secure their place in situations of disaffiliation, multi-affiliation or vulnerability’ become ‘the custodian of specifically European interest’, EU decision-makers – and the CJEU in particular – are increasingly called upon to characterise these individuals through particular aspects of their social settings to grant them rights under EU law. From this perspective, multiple authors perceive the notions of autonomy and agency as dependent on the existence of a particular (here supranational) community, within which options become available to an individual and within which the individual can develop a reasonable perception of such agency

INTRODUCTION

In most jurisdictions, the residence of a child is one of the main issues on which parents must agree jointly. Where this agreement is lacking, a court decision allowing relocation is usually needed to guarantee the lawfulness of the move. Although most jurisdictions resolve relocation disputes with reference to the child's best interests principle, the assessment of the child's best interests is a well-recognised challenge. While the principle is embedded in Article 3 of the United Nations Convention on the Rights of the Child (the CRC) and considered to be one of the general principles underpinning the Convention, the most widely ratified human rights treaty in the world, it generates a significant variety of approaches in different contexts. This can also be said about child relocation. It is not the objective of this book to discuss the nature and content of the principle in detail, and many excellent commentaries on the topic can be found elsewhere. However, certain features of the debate are substantively and methodologically relevant for the broader analysis undertaken in this book. As the CRC's understanding of the principle underpins national family laws across the EU and many EU legal instruments, including the EU Charter of Fundamental Rights (CFR) and the Brussels IIter Regulation, the pertinent features of the principle and methodologies for best interests assessments are discussed in reference to the CRC.