European Court of Justice considers passport jurisdiction

Family Law|October 28th 2015

The European Court of Justice has ruled that ‘parental responsibility’ in EU legislation includes the issue of passports.

Gogova v lliev concerned a then ten year-old child of Bulgarian nationality. The parents were also Bulgarian but both lived in Italy. They were separated: the child lived with her mother in Milan, the father elsewhere. In 2012, the mother applied to the Bulgarian authorities, seeking a renewal of her child’s passport as she wanted to travel to Bulgaria to visit her family. The father would not agree to this however, and his cooperation was required under Bulgarian law.

The mother went to court, seeking a legal resolution, but the Bulgarian authorities could not find the father. The court therefore appointed a representative for him. The latter took the legally required line and stressed the importance of deciding the case in the child’s best interests.

The court however ruled against the mother. It declared that the case concerned a matter of parental responsibility, as defined by EU regulation 2201/2003, commonly referred to as Brussels II Revised. This defines jurisdiction – or which court has legal authority – in family matters across EU member states. The Bulgarian court had concluded that the child in question was ‘habitually resident’ (normally resident for legal purposes) in Italy and therefore they held no jurisdiction in the case.

The mother appealed to the Bulgarian Supreme Court of Cassation. The latter quickly referred the case upwards, to the European Court of Justice (ECJ), seeking a preliminary ruling on whether or not the mother’s original application was really covered by the reference to ‘parental responsibility’ in Article 8 of Brussels II Revised. Also to be considered was Article 12, which states that the jurisdiction of a nation’s court system could be accepted in relation to a particular case if it had been “accepted expressly or otherwise in an unequivocal manner by the spouses and by the holders of parental responsibility”. The father’s legal representative had not challenged the jurisdiction of the Bulgarian court.

The European Court of Justice ruled that the term ‘parental responsibility’ in Article 8 of Brussels II Revised was to be understood broadly, and consequently the mother’s desire to renew her child’s passport without the consent of the father was covered by the legislation. Finally the ECJ rejected the Article 12 argument, saying the legal representative’s failure to specifically challenge jurisdiction could not mean the Bulgarian authorities automatically acquired responsibility for the case.

Read the full ruling here.

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