Is the Protection of the family in Europe a Human Right realized by custody and guardianship law? Current problems and social policies between European “common core” and domestic laws.
This paper is the results of nondoctrinal research that aims to investigate the meaning, purpose, and ratio legis of the right to the protection of the family in Europe through the exam of two legal arrangements: Custody and guardianship. Results of the investigation will orient the main answer of the paper: Is the protection of the family in Europe a Human right? Tools offered by the European family law are appropriate and efficient? Are these tools able to guarantee the right to protection of family when it is facing with specific problems that characterize the European family law?
In order to realize the purpose mentioned above, the research will describe legal sources and reports collected and will analyze them in a protecting family right perspective. The second part of the research is addressed to interprets the obtained results and conclude the research answering the proposed questions.
Report of the research, that is done through an empirical and deductive method, will be beneficial for both knowledge of the global framework of the European law, with a comparative, but also holistic, approach and could offer food for thought for social welfare and law reforms in the field of the right to protection of the family.
As well known, the protection of family fluctuates through public law and civil law protection. Carlo Arturo Iemolo, an Italian scientist, used to say that family is like an Island that must just to be touched by the see of the law. The thought of the academician was that public interferences in family life (i.e., judicial or administrative order) must be reduced as much as possible. In this perspective, it would seem logical to argue that every intervention in family life must be considered as interference. The “need” of the interference and a law that provides an interference are necessary in order to realize the protection of the family, because the protection of the family is an interest that warrants protection by the legal system. His thought is the expression of that part of the European legal doctrine that considers the “agreement” between family members as the main important tool of family law able to drive family life.
One of the two primary sources concerning the right to protect the family in Europe is article 8 of European Convention on the Human Right which relies on Paragraph 3, Article 16 of the Universal Declaration of Human Rights, that, expressly, assigns a general positive obligation for States and society to protect the family.
Article 8 of the European convention – that is considered, as well known, a “constitutional instrument of European public order” in the field of human rights- considers the respect of family life as one of the four interests identified as relevant for the EU Countries in the field of access to the private beach of person.
The provision reaffirms and specifies the principle in nuce at Article 12 of the Universal Declaration of Human right: “no one shall be subjected to arbitrary interference with his … family … Everyone has the right to the protection of the law against such interference or attacks”.
Analyzing primary sources is possible to inflect two different aspects of the same right to whom family is entitled. A general right to protection that seems to include an open clause against any kind of unlawful attacks to the family. A second aspect of the right to protection expressly entitles the family of the right to be protected from a specific kind attack: arbitrary interferences.
Is possible to find the reason of the need of the law to underline two different aspects of the right we are analyzing in article 16 Of the European Social Charter: to ensure the “necessary condition for the full development of the family. Which is a fundamental unit of society”. That is the reason why States are called to positive obligations as promote economic, legal and social protection from any kind of attack. At the same time, family, as a natural society that we need to let develop, must be governed, respecting the general principle of any legal system, by itself without any arbitrary interferences that can prevent its natural development.
Article 8 of the European Convention consecrate as human right the respect of family life and, at paragraph two, declare that there could not be any interference by public authority in the family life except for national security, public safety, economic well-being, prevention of disorder ore crime, protection of health, morals, rights and freedom reason. In any case, also justified interference, must be in accordance with the law.
The ratio legis of the statement is clear: to protect family life against arbitrary interferences. The respect of family life, as an expression of the personality of the human being, is a fundamental value, that can be compressed only if the self-determination of the family life limits, compress, eliminates, violates other fundamental value of the States. States are called to balance, with a case-by-case approach, different fundamental interests and, let the family self determinates, otherwise State is called to fulfill positive obligations in order to protect the society.
As well knowns, family law in Europe deals with various questions linked to Custody and guardianship, looking for determining common rules with the respect of domestic laws that - varying from Country to Country- express the culture and the social development of each member State.
Are tools, solutions, and public policies adopted in the European territory respectful of the all Human Rights involved in “Family” as a fundamental institution?
There is no doubt that Family is the legal arrangement that involves, according to articles 2 and 29 of the Italian Constitution, both “inviolable rights of the person”, such are rights of the individual member part of the family, and “inviolable rights of groups” such are rights of the “Family” as natural society, prior to the State, a where the human personality of members is expressed. At the same time family, by a public law perspective, represents the first focal socialization agency, because of the role played by families in the education and socialization of children.
Is time to analyse data collected on current problems that Europe is facing with, and solutions offered on this field (from Children of mafia to Custody between families of different religions or parental Child abduction) in order to interpret them and examine how European legal system realize the right to the protection of the family by both civil law and administrative law perspective.
As well known in all Europe mothers and married father have automatically the parental responsibility on their children and, normally if it is not against the best interest of children, it is exercised jointly. According to the Principle of European Family law, parental responsibility is defined as “a collection of rights and duties aimed at promoting and safeguarding the welfare of the child”. They encompass in particular: care, protection and education; maintenance of personal relationships; determination of residence; administration of property, and legal representation.
The definition seems to be an evolution, from a puerocentric perspective, of the definition given by the Council of Europe in the recommendation R (84) 4. Analyzing both sources is unexpected to discover that both refer to parental responsibilities instead of parental authority. Compared to the recommendation, that defines the parental responsibility as “a collection of duties and powers which aim at ensuring the moral and material welfare of the child, in particular by taking care of the person of the child, by maintaining personal relationships with him and by providing for his education, his maintenance, his legal representation and the administration of his property”, Principles are, for sure more, children oriented, are expression of children that -before to be a vulnerable people to protect- is recognized as a person, as the holder of individual rights, that must be promoted and sponsored during the development of his personality.
There is no doubt that, until parental responsibility is jointed exercised as shared custody, with the aim to recognize both the children right to have the two parents as recognized by article 24 of Charter Of Fundamental Rights Of The European Union and the respect of the best interest of Children, there will be no endogenous causes that can put in risk the protection of the family, in these cases the right to protection of the family can be exercised only against arbitrary interferences.
Confirmation of this thesis is that “agreement” between parents for the govern of family life is generally considered the main tool of family law.
4a.1 Parental Child abduction
International Children abduction happens more than 1000 times per year in European territory. According to statistic data -contained in the Cross-border parental child abduction in the European Union study published by the Directorate-General for international policies of the European Parliament- the number of requests for return of children brought out of the residence State by a parent without the consent of the other parent is increasing (in some countries more than triple) for more than one reasons from migration to the mobility of families. The Huge number of Return application is received by England, Germany, Spain, France, Poland, and Italy; comparing to those Countries Malta, Slovenia, Luxembourg and Cyprus have a very few numbers of Return application. The number of taking mother is a little higher than the numbers of taking father.
In cases of parental wrongful removal or retention of a child in a different State, is well known that two different sources of law are called to protect children interests: Hague Convention of 25 October 1980 complemented by the provisions of Council Regulation (EC) 2201/2003, in particular with Article 11.
Huge Convention created a cooperation system, between States signatory on the convention, addressed to avoid conflicts between the legal system in case of parental children abduction. As well known, Huge convention create efficient judiciary tools in order to protect minors by parental wrongful removal such determination, a priori, of the States whose authorities have jurisdiction, of the law applicable to parental responsibility, cooperation between judiciary and administrative authorities to discover the whereabouts of a child, to take provisional measures in order to protect parties and minors; to secure the voluntary return of the child; to exchange information relating to the social background of the child; to provide information of a general character; to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child, to make arrangements for organising or securing the effective exercise of rights of access, to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child.
Council Regulation (EC) 2201/2003, whose main purpose is to uphold children´s right to maintain contact with both parents if they live in different Eu Countries -among other statements on a common core concerning divorce, legal separation, and marriage annulment- improves minors´ protection rules in case of parental children abduction through statements on parental responsibility and States jurisdiction on it, especially as continuing jurisdiction between new and former habitual residence of minors and declare the right of the return of the child in case of parental Children abduction from one State to another of the EU and determines uniform procedures. But the most efficient part of the Regulation, as we will see analyzing cases, is that one concerning provisional, including protective measures and direct recognition of judgment between members States and the Non-review as to substance, the possibility for parties to ask a declaration on enforceable of the judgments given in a Member State. The high expression of the cooperation between Authorities of Member States is the Enforceability of certain judgments concerning rights of access and of certain judgments which require the return of the child. Article 41 declares that rights of access granted in an enforceable judgment given in a Member State (according to article 40 of the regulation) shall be recognized and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin. Article 42 declares that return of a child entailed by an enforceable judgment given in a Member State (according to article 40 of the regulation) shall be recognized and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin.
Is time to analyze and interpret these provision into the light of current problems that cases show and the interpretation of jurisprudence. Are abovementioned procedural tools efficient to protect both member of the family, such children rights and parental rights, and at the same time, in a public law perspective, the unit of the family?
Is to underline that European Commission, with COM(2016) 411 final 2016/0190, propose a recast of Council Regulation (EC) No 2201/2003. In the explanatory memorandum of the proposal is clear that objective of the recast is to “develop the European area of Justice and Fundamental Rights” and “removing the remaining obstacles to the free movement of judicial decisions in line with the principle of mutual recognition and to better protect the best interests of the child by simplifying the procedures and enhancing their efficiency” .
Concerning the return procedures “appeared that the immediate return of the child could not be ensured in all cases” at the same time, also in the practice application of the procedure of placement of the child in a foster family or an institution of another Member State, are individuate some criticisms. European Commission suggested, also with the adoption of common best practices, to reducing family litigation through mediation, to improve European scientific research and data collection, to promote the jurisdiction on child abduction to specialized courts, to promote specific training for mediators and judges and promote cooperation among Member States’ judges. Then the Commission suggests reviewing some statement of the Regulation.
By the analysis of data appear that the system is not really able to protect de facto situation and especially natural father and nonresidential parent whom domestic law doesn´t recognize automatically the parental responsibility on the child. The system, furthermore, analyzing Court decision, is not able -as moreover underlined by the European Commission- to guarantee the respect of the rights of children to have two parents in terms of time: the returning system is not able to respect a time able to guarantee the best interest of children, their right to be heard. On the other hand, by a perspective that considers family as an institution, the cooperation system created looks like an efficient system, ables to stop arbitrary interference in family life created by the failure of National authorities.
Council Regulation (EC) 2201/2003 also states on the question involved in the field of research concerning the balance between the right to protect the family by interference and States duties to realize fundamental principles of his legal system.
The family is the natural place intended for the physical and mental development of children unless it is inadequate to the child best interest. In that case, States intervening with a legal and not arbitrary interference in order to realize -in the balancement of interest between the protection of the unity of the family and the protection of children interest- one of its fundamental interest: protection of minors.
This is the case of a pathological situation of abuse of minors, but also neglected behavior, violation of children right, but also of the willing family that is unable to face with problematic or hill children or youth. Most of the European critical point concerning minors and inadequate family are characterized by the family contest: inadequate family by a cultural perspective, unable to educate, unable to respect children right.
Extreme cases can be individuated in alcohol and drugs dependence of minors, baby gang, minors of mafia.
The analysis of cases law and provision of national family law of European countries, demonstrates that domestic procedures and provision represent efficient tools able to realize the best interest of children
By a Children oriented perspective is possible to conclude that tools offered by the law are effective, but must be implemented by judiciary measures, but especially, in a long term strategy, by the support and development of a culture of childhood a culture (also juridical) that change the perspective from an adults based to a child perspective. In that direction cooperation between authority States, especially the administrative one must be more fast, immediate and efficient in order to really realize a European protection system.
 The italian scientist R. Orstano propose an interpretation of law as “esperienza giuridica” that is composed not only by primary sources, but also by other factors. Law consists of facts, law and scientia iuris. Amplius R.Orstano, introduzione allo Studio storico del diritto romano, 1961, Turin.
 L. Lopez Guerra, European convention on Humanr rights and family life. Primary issues, in Vv. Aa., the right to family life in the European Union, 2016, pag. 11 et seq.
 Amplius Almeida S.,The right to respect for (private and) family life in the case-law of the European Court of Human rights: the protection of new forms of family, Comunicação apresentada no 5th World Congress on Family Law and Children’s Rights, Halifax, Canada, 23th-26th August 2009; Paraskeva, C. & Meleagrou, E. “Homes From the Past: An Expiration Date for the Right to Respect for Home Under Article 8 of the European Convention on Human Rights”, Annuaire International des Droits de l’Homme (Vol. VII), 2012-2013, pp.845-877. the same principles is the base of the case Ignaccolo-Zenide v. Romania (Application no. 31679/96), where the Court declared the violation of Article 8, because “the Romanian authorities had failed to make adequate and effective efforts to enforce the applicant’s right to the return of her children and had thereby breached her right to respect for her family life.”
 J. Morsink, The universal declaration of human rights: Origin, Drafting and Intent, University of Pensilvanya Press, pages 134 et seq.
 As before underlined, the right to be protected by any kind of attacks find its ground in the International declaration of Human rigts, but is was renewed by article 10 of the International Covenant on economic, social and cultural rights, article 23 of the International Covenant on civil and political Rights, paragraph 1, article 44 of the International Convention on the Rights of all migrant worker and members of their families.
 The principle of protection of the family against interferences was already taken up by article 17 of the international Covenant on Civil and Political Right, article 16 of the Convention on the Right of the Child.
 For a sociologic perspective see Amplius A. S. Loveless, T. Holman, The Family in the New Millennium: The place of family in human society, Greenwood Publishing Group, 2007, pages 39 et seq.
 L. Lopez Guerra, European convention cit. pag 13 et seq.
 I this meaning with the decision Iglesias Gil and A.U.I. v. Spain (application no. 56673/00), the European court of human rights declare a violation of Article 8 of the Convention “finding that the Spanish authorities had failed to make adequate and effective efforts to enforce the first applicant’s right to the return of her child and the child’s right to join his mother, thereby breaching their right to respect for family life”. Spain, in that case didn´t take any measure to ensure the enforcement of decisions taken in favour of the applicant.
Reasons of a violation of the protection of family are various and depends for example by the swiftness of its implementation of measures adopted. In this meaning European Court- in procedure Marie v. Portugal (Application no. 48206/99), declares “Custody proceedings required urgent handling as the passage of time could have irremediable consequences for relations between the child and the parent from whom he or she was separated”, for that reason considered violation of article 8, because Portuguese Authority authorities should haven´t take proper measures in order to block and punish the lack of cooperation of a mother that abducted the son. Inaction of a State in the returning procedures or in the realization of bigenitorial right is considered by Court -in Bianchi v. Switzerland (application no. 7548/04)- as “caused the complete break-off in contact between father and son, which had lasted almost two years and which, given the very young age of the child, was liable to result in growing alienation between them which could not be said to be in the child’s best interests”. Same inactivity was considered violation of article 8 in the procedure Bajrami v. Albania - 35853/04- where after a divorce a father asked the police to block the passport of the daughter because was afraid that the mother can abduct her. Despite that request the mother take out of the country her daughter, and also if the custody of the young girl was given to the applicant, the judgment, was never enforced. “The Court held that there had been a violation of Article 8 of the Convention. It noted in particular that the custody judgment had remained unenforced for approximately two years for which no blame could be attributed to the applicant, who had regularly taken steps to secure the return of his daughter”.
 Vv. Aa., Italian Constitutional Justice in global context, Oxford University Press, 2016, page 136 et seq.
 On the best interest of children, see Amplius M. Freeman, Article 3: The Best Interests of the Child, Leiden, 2007; ouncil of Europe, The best interests of the child: A dialogue between theory and practice, 2016;
 In 1984 huge numbers of European States refers to the munus as parental authority because the idea to underline the responsibility instead of rights and powers of parents was, at that time, still in nuce and the majority of of European civil code where still speaking about parental responsibilities, potestá gentoriale, patria potestad, autorité parentale, Elterlichen Sorgerechts.
 This right can be defined as the children right to maintain, regularly, personal relationship and direct contact with both parents unless that is contrary to children interest.
 Vv. Aa., The EU Charter of Fundamental Rights: A Commentary, Bloomsbury Publishing, 2014, article 24.
 E. Lauroba, J. Marsal, The Agreements between Parents about their Parental Powers and Duties, Documenta Universitaria, 2006, page 265
 Data source: Coface Families Europe at www.coface-eu.org
 Data, for example, shows how numbers of request is directly related with the number of foreigners in a State. For more detailed reasons consult the study on Cross-border parental child abduction in the European Union, page 16.
 Paragraph 12 of whereas 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, repealing Regulation (EC) No 1347/2000 statutes that “The grounds of jurisdiction in matters of parental responsibility … are shaped in the light of the best interests of the child, in particular on the criterion of proximity”.
 Except Denmark, Iceland, Liechtenstein, Norway and Switzerland where is applied the Huge Convention.
 Amplius see K. Gubiniova, International Child abduction in the context of the Convention on the civil aspects of international Child Abduction, In: Lidská práva o žalobách týkajících se odebíraní dětí v členských státech rady Evropy a související lidskoprávní aspekty. - Hodonín : Ústav práva a soudního inženýrství, 2015. - S. 60 – 63.
 As well known article 9 and article 10 of the Council Regulation, declare, according with international principles, that the habitual residence of minor is the main criteria of jurisdiction determination. Amplius EU.C:2014:2268 “As regards the concept of ‘habitual residence’, the Court has previously stated … that the Regulation contains no definition of that concept and has held that the meaning and scope of that concept must be determined in the light of, in particular, the objective stated in recital 12 in the preamble to the Regulation, which states that the grounds of jurisdiction established in the Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity.”
 In this direction ECLI:EU:C:2014:2268 declare that “Regulation No 2201/2003 must be interpreted as meaning that, in circumstances where the removal of a child has taken place in accordance with a court judgment which was provisionally enforceable and which was thereafter overturned by a court judgment fixing the child’s residence at the home of the parent living in the Member State of origin, the failure to return the child to that Member State following the latter judgment is wrongful and Article 11 of the Regulation is applicable …”. A very interesting definition of residence, with a best interest of child oriented perspective is given by the European Court of justice in case C-523/2007 where is specified that “The concept of ‘habitual residence …must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, in particular the duration, regularity, conditions and reasons for the stay on the territory of a Member State and the family’s move to that State, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that State must be taken into consideration. It is for the national court to establish the habitual residence of the child, taking account of all the circumstances specific to each individual case.”
 For more information on the structure, reason and solution offered by the Communication, see Amplius: P. Beaumont, L. Walker, J. Holliday, Jayne, Parental responsibility and international child abduction in the proposed recast of Brussels IIa Regulation and the effect of Brexit on future child abduction proceedings. International Family Law Journal 4- 2016. pp. 1369-5762.
 On the value and efficiency of mediation in case of parental children abduction see Amplius N. González Martín, International Parental Child Abduction and Mediation: An Overview, In Family Law Quarterly, Vol. 48, No. 2 , p. 319–350
 In this meaning the decision I – 8992 in the case C-400/10 PPU that statues that Regulation No 2201/2003 “ must be interpreted as not precluding a Member State from providing by its law that the acquisition of rights of custody by a child’s father, where he is not married to the child’s mother, is dependent on the father’s obtaining a judgment from a national court with jurisdiction awarding such rights to him, on the basis of which the removal of the child by its mother or the retention of that child may be considered wrongful, within the meaning of Article 2(11) of that regulation”.
 Just by way of an example articles 330 and 333 of Italian civil code or articles from 378 to 381 of the French civil code.