An Advocate General of the Court of Justice of the European Union has given his opinion in a case concerning the rights of grandparents to see their grandchildren.
The case in question concerned a grandmother, Ms Valcheva, who is a Bulgarian national. Her grandson was born in 2002, and since his parents’ divorce he has been habitually resident in Greece, where he lives with his father who is a Greek national.
Ms Valcheva wishes to maintain a relationship with her grandson and sought to obtain rights of access. However, she was unsuccessful in her attempts to establish quality contact with her grandson and did not receive any support from the Greek authorities. She therefore applied to the Bulgarian courts for a determination of arrangements for her to exercise rights of access to her grandson. The access she requested consisted of seeing her grandson one weekend each month and that he come and stay with her at her home in Bulgaria for two or three weeks during his holidays.
Her application was dismissed by the Bulgarian courts of first instance and also the appeal court on the basis of lack of jurisdiction on the ground that an EU Regulation (Brussels IIa Regulation) provides for the jurisdiction of the courts of the Member State in which the child has his habitual residence i.e. Greece.
Ms Valcheva then took her case to Bulgaria’s Supreme Court, which has taken the view that in order to determine which country’s court has jurisdiction, it is essential to ascertain whether or not the Brussels IIa Regulation applies to the rights of access of grandparents. The case was referred to the Court of Justice for a ruling on this question.
Advocate General Szpunar has now given his opinion on the matter. He notes that his analysis has been guided by the principle that the best interests of the child come first, which is of fundamental importance under the Brussels IIa Regulation.
He also notes that if applications for rights of access by persons other than parents are to be excluded from the scope of the Brussels IIa Regulation, jurisdiction in respect of such applications would be determined by non-harmonised national rules. The risk of bringing the dispute before a court the child has no close link to, and the likelihood of parallel proceedings and irreconcilable decisions would increase, contrary to the purpose of the Brussels IIa Regulation, which aims to lay down uniform rules of jurisdiction in accordance with the principle of proximity in judicial proceedings.
The Advocate General also looked at relevant international instruments such as the 1996 Hague Convention, noting that they adopt a broad concept of rights of access, thus supporting the integration of ties between near relatives, which can play a considerable part in family life.
He concluded that the concept of rights of access includes persons other than parents, since those persons have family ties to the child based on law or on fact.
He has therefore proposed the Court of Justice rules that in matters of parental responsibility rights of access include the rights of access of grandparents
It is important to note that the Advocate General’s Opinion is not binding on the Court of Justice. It is the role of the Advocates General to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible. The Judges of the Court will deliberate the case and give their judgment at a later date.
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