Part IV - The EU Family in Internal and External Crises

11 The Abused and Neglected Child in the EU Family: Risk, Borders, and Public Law Child Protection

Ruth Lamont

11.1 Introduction

Discussion of European family law and the conception of the European family originally focussed on the rights of free movement, the processes of migration, and experience of cross-national difference or convergence.¹ As the European Union (EU) secured competence over private international family law and adopted a range of legislation governing jurisdiction, choice of law, and the recognition of judgments in various contexts, including divorce, matrimonial property, and maintenance, the scope of European family law broadened considerably.² It directly addresses children within the family, regulating both the consequences of international child abduction, and the jurisdiction, and recognition of judgments in parental responsibility matters,³ making the child and the child’s welfare a direct subject of European family law.⁴ The child is also the subject of direct rights protections under Article 24⁵ of the EU Charter of Fundamental Rights.⁶

The migration of families with children between Member States has meant that children, for the purposes of EU law, may be caught between two (or sometimes more) legal systems. The private international law rules developed by the EU are intended to address this directly, providing certainty of jurisdiction and recognition and enforcement of judgments between the Member States. These rules were conceptualised as mainly dealing with private law disputes between family members, normally parents, disputing arrangements for custody or access in the aftermath of a relationship breakdown. However, the public law aspects of cross-border family life have also become highly significant to the operation of EU family law. Children abused or neglected by their family have also been caught between legal systems: whilst identified as being at risk of harm in one legal system, they may have close links (through nationality or other reason) to another legal system.

This chapter will examine how the scope of European private international law now encompasses child protection and will consider the status of the abused and neglected child within the European concept of family. The child protection system and legal framework in each Member State may be very different, making legal borders still highly important in this legal context. The chapter will examine the evolution of the private international law rules in this context, the particular problems evident in practice, and will then seek to explore the tension that still exists in regulating the family between European law and the domestic law of the Member States. It will be argued that the child as a victim of abuse or neglect within the family is not clearly ‘seen’ within EU international family law, in associated policy or legal frameworks. Whilst children as victims are paid close attention in cross-border criminal contexts⁷ and asylum law,⁸ the role of the state in combatting violence against children through public family law has received little attention despite evident but legitimate differences in national legal systems managing child protection issues.

11.2 Cross-Border Public Law Child Protection within the Europe Union

Family law is often identified as an area of law quintessentially domestic in character and closely related to the religious, cultural, and legal history of the State concerned.⁹ The harmonisation of private international family law rules within the EU¹⁰ has opened the debate on potential for convergence or even eventual harmonisation of substantive family laws across Europe. In relation to the harmonisation of private international law rules on divorce, the particular emphasis on civil law approach to divorce and procedure has been identified as having an influence on the common law legal systems.¹¹ The private international law rules and the migration of persons opens up new cross-border understandings of family law and how disputes should be managed and resolved. This can have an impact on the content of Member State family law,¹² though it has arguably had relatively limited impact on child law. The primacy of the child’s best interests as the basis for decision-making over children allows for legitimate broad-ranging difference. The open-textured nature of an assessment of the child’s best interests, and application of the concept to the facts of a case, provides significant flexibility to domestic courts.¹³

The role of the European Court of Human Rights in adjudicating on Article 8 of the European Convention on Human Rights 1950 (ECHR), the right to respect for private and family life, has arguably been more influential on the convergence of family law standards and the expectations placed on signatory States in relation to family life across Europe.¹⁴ The ECHR has placed positive obligations on signatory States to intervene to prevent the abuse of a child under Article 3, the prohibition on torture and inhuman and degrading treatment, and this includes abuse originating from within the family structure.¹⁵ The law of each EU Member State will contain measures for child protection in some form to provide a method of intervention in the family to prevent or stop abuse and neglect. The child protection framework will respond in accordance with particular standards defined in domestic law. The methods and processes of intervention, along with the terminology and standards upon which intervention is legitimated by national law vary considerably, consequently making comparison and cooperation between national systems highly challenging.¹⁶

In general, practical terms, once a child has been identified as at potential risk of harm within the family, the state will engage with the child and the wider family through social service provision and support for the family to address sources of harm. If the risk cannot be ameliorated or addressed within the family structure, the state may take legal measures, usually through public law civil proceedings, but also potentially through the criminal law. Measures will often provide for the removal of the child from the situation of risk within their family and place the child, often in a kinship placement (frequently with grandparents), or with other carers, such as foster carers and/or, in some systems, pursue formal adoption of the child, potentially severing ties with the child’s birth family. It is important to acknowledge this role of the state in relation to the family, and the potentially very serious consequences if there are failures in intervention. However, both the standards determining the point at which intervention may take place and the forms interventions take will be different depending on the Member State.

In terms of how we perceive the family, families subject to state intervention for the protection of a child are not susceptible to our common conception of family and family life. Family as the primary site of care and affection for children does not conform with the reality of a child abused within the family, and child protection practice is set apart from other aspects of family law. This has also led to difficulties surrounding the definition of issues such as parental chastisement of children, where physical harm by parents is legitimated by law.¹⁷ Traditional conceptions of divided and gendered parental roles have also led to problematic characterisation of parental action, particularly for mothers,¹⁸ and different characterisation dependent on legal context, either private law disputes over parenting, or intervention in the family to protect the child through public law.¹⁹ In families of different cultural origins, understanding and responses to state intervention may also vary enormously, posing particular problems in the context of children with links abroad to other legal systems.

This context, along with the increasingly cross-border nature of family life, has meant that it is relatively common, particularly in some Member States with high levels of inward migration, for children to be subject to care proceedings in a State other than that of the child’s nationality.²⁰ The protection of the welfare of the at-risk or abused child is now a challenge for EU private international family law where it regulates the cross-border family. The International Court of Justice in the 1958 Boll case observed that the social purpose of child protection law applies to all children, not just nationals of a particular state.²¹ As such, the abused or at-risk child has to lie within the conception of cross-border family in law, and, more importantly, identified as having specific needs for the promotion of their welfare.

11.2.1 The Significance of the Foundations of EU Family Law to Child Protection

The adoption of private international family law measures by the EU originated in the desire to address the consequences of the free movement of persons between the Member States. The fundamental freedom to migrate within the physical European space had promoted the movement of not just workers, but their families²² and consequentially, between legal systems and legal spaces. In the European context, the family has been recognised as ‘pivotal’ to migration choices, and the increasingly less uniform and homogeneous nature of family life has an impact on the social, cultural, and legal structures regulating such migration.²³

Beyond regulating the structural elements of family relationships legitimising the key entitlement to free movement in European law,²⁴ the EU did not clearly seek to regulate the reasons for migration. Since the introduction of the concept of European citizenship²⁵ by the Treaty of Maastricht in 1993, individuals are able to move with motivations beyond purely the economic. This is of interest to family lawyers where motivations for migration were directly related to maintaining or breaking family relationships through the use of legal borders and differences. It has particular significance in relation to children who do not necessarily have control over their migration and the reasons for it,²⁶ which can take a number of forms. For example, migration may constitute an unlawful attempt to separate a child from a parent through parental child abduction, or moving a child across an international border may form part of an attempt to avoid intervention by child protection agencies by moving abroad.²⁷

One of the ways in which European law acknowledged the impact that the free movement of persons was having on family life was to seek to regulate private international law rules, alongside the internal EU migration framework. McEleavy has highlighted that the integration of private international family law rules in the EU was motivated to specifically and directly affect the life of the European citizen, making the legal status and familial consequences of their migration to another Member State simpler.²⁸ In family law (as opposed to commercial law, where there was a clearer link to facilitating litigation associated with the creation of the internal market), the initial interventions were controversial. The economically derived basis for seeking to address the consequences of the free movement of persons and potentially encourage future migration was regarded as problematic.²⁹ Family law was regarded as having been ‘instrumentalised’³⁰ in achieving the internal market goals of the Union, along with giving further substance to the emerging concept of European citizenship derived from Article 20 of the Treaty on the Functioning of the EU (TFEU). However, for the EU to assume competence over private international family law, it is necessary to demonstrate a link to the needs of the internal market.³¹

The consequence of this foundation for European family law was a particular emphasis in the underlying policies towards cross-border families, which informed the determination of the international family ‘problems’ to be addressed by EU law. The conception of the ‘problem’ to which economic family migration may give rise was centred on the consequences of migration for family ties, primarily parental ties. It was noted that, in potentially placing extra pressure on family relationships, the migration context may contribute to relationship breakdown between the parents, with associated consequences for any children of the family. The legal framework developed by the EU then focused on addressing the consequences of the breakdown of relationships between parents in a previously extant family, and the resulting cross-national movement and litigation.³² The potential for abuse or neglect of children within the family structure, and the impact on children of having links to more than one Member State as a result of their family’s migration, was not clearly in focus.

This has had a significant impact in relation to public law child protection, where it is the state intervening to protect a child and seeking legal authority to provide for their welfare, rather than the anticipated dispute between holders of parental responsibility over their obligations towards the child between one another. Despite a long history of public law disputes over children between countries,³³ the academic engagement and research into the cross-border links of children subject to child protection proceedings is of relatively recent origin.³⁴ It is an area where national law and policies may vary widely and the children subject to public law intervention by the state may face enormously different surrounding circumstances and personal histories.³⁵ The increasingly global links maintained by children within their family networks means that the potential for a child to have family members abroad, or significant familial links to another country, is higher. The law and the procedures for providing outcomes for children deemed at risk of neglect or abuse from their family have to be able to respond to these global links to effectively secure the welfare of the child. This is the context in which European family law has operated.

11.2.2 Developing Cross-Border Child Protection within the EU Family Law Framework

Regulation 2201/2003,³⁶ or Brussels IIbis, was the first significant and effective piece of EU legislation impacting on family law between the Member States. It created jurisdiction rules for divorce and disputes over parental responsibility including contact and custody within the EU. On the assumption that jurisdiction would be uniformly assumed, recognition of the resulting judgments was almost automatic. The Regulation also created an additional framework for child abduction, building on the Hague Convention on the Civil Aspects of International Child Abduction 1980, to encourage the return of a child unlawfully removed or retained between Member States. These rules are now embodied in the updated and revised Regulation 2019/1111, known as Brussels IIbis Recast.³⁷ The legal framework centres on the consequences of this process of breakdown in relationships between parents, that is, the private law aspects of family conflict.

After the adoption of Regulation 2201/2003, the first question posed to the Court of Justice of the European Union (CJEU) regarding the interpretation of the Regulation was regarding its material scope. In Case C-435/06 C,³⁸ the mother of two children appealed against the decision of the Finnish court to transfer legal responsibility for her children from the Finnish court to the Swedish authorities. The two children both had Finnish nationality, and the elder child also had joint Swedish nationality. They had been taken into care in Sweden in February 2005, but their mother had moved them to Finland in March 2005. The Swedish authorities sought the enforcement of the decision to take the children into care in Finland.³⁹ The CJEU confirmed that since the decision related to the attribution, exercise, delegation, restriction, or termination of parental responsibility under Article 1(1)(b), Regulation 2201/2003, it was within the material scope of the Regulation.⁴⁰ This meant that EU law relating to jurisdiction and the recognition of judgments under Regulation 2201/2003 applied to the public law judgment to take the children into the care of the Swedish state, since this decision affected the exercise of parental responsibility over the child.

The available European family law legislation was not clearly directed at governing jurisdiction over these children. Both Brussels IIbis and the updated Brussels II Recast create a distinction between jurisdiction over disputes affecting parental responsibility, including placement in foster or educational placements, and decisions on adoption which are expressly excluded from the material scope of the Regulation.⁴¹ Adoption, either in kinship placements or outside the birth family, can be a common outcome from care proceedings in some Member States. This makes the initial decision to assume jurisdiction over a child identified as at risk of harm within the family extremely important because it affects the potential outcome for the child in determining the available family arrangement options when the court makes substantive decisions in relation to the child’s future. The preparatory proposals for Brussels IIbis did not envisage that public law proceedings would feature heavily in cross-border disputes, instead focusing on clarity in divorce jurisdiction and resulting private law disputes over children.⁴² Arising from the evidence in practice under the original Regulation, the Commission’s proposals for the Recast Regulation after ten years of operation of Brussels IIbis acknowledged specific challenges in the effective and efficient placement of children abroad for their welfare required revisions to the legislative framework.⁴³ Despite this acknowledgment and amendments to the governing framework, the risks posed to children within the family and the need for state intervention for the child’s protection are incidental to the conception of family life.

The focus on the breakdown of parental relationships meant that circumstances affecting the child within the extant family, and the role of the state in intervening in family life, had not been fully considered. The increasing movement of families and children has meant that children involved in child protection proceedings, governed by the domestic public law of the Member State, often have links to foreign jurisdictions. Even if the child was born in the country where they are made subject to care proceedings, their parents may be nationals of other countries and they may have significant close family members in other countries, for example, grandparents. Alternatively, the child may have been born abroad and migrated along with the family, or there may be an attempt to avoid domestic child protection proceedings by moving the children to another state (as appears to have been the case in C-435/06 C⁴⁴). In other circumstances, a child at risk of harm may have been placed with institutions abroad for specialist care and support unavailable in their home country.⁴⁵

This aspect of cross-border family life had emerged as a serious concern in practice under the Brussels IIbis Regulation.⁴⁶ Article 15 of the Regulation, allowing transfers of jurisdiction over parental responsibility proceedings in the best interests of the child between the Member States assumed particular importance in relation to child protection where the child had links to another Member State. When the host state instituted proceedings for their protection, the question arose as to the circumstances where the case should be transferred to the foreign court, usually the court of the child’s nationality. In Case C-428/15 Child and Family Agency,⁴⁷ the CJEU made it clear that Article 15 of Regulation 2201/2003 could apply to the transfer of public law proceedings to a different Member State than to that first seised. In determining whether the alternative court with a particular connection to the child was ‘better placed’ to hear the case, the CJEU directed that the analysis should focus on whether it provided ‘genuine and specific added value’,⁴⁸ accounting for rules of procedure that justifies transferring jurisdiction from the child’s habitual residence, the primary ground of jurisdiction.⁴⁹ The assessment of whether the transfer of jurisdiction is in the child’s best interests is a truncated assessment, limited to whether the transfer will be ‘detrimental to the situation of the child’.⁵⁰ This can include whether the transfer will affect the child’s right of freedom of movement within the EU, but not how the interests of other parties, for example, the child’s parent, may be affected by the transfer.⁵¹

Much of the litigation in relation to transfers of jurisdiction under Article 15 occurred in England and Wales, partly because it was a common migration destination country within the EU, and partly because it maintains a system of closed adoptions where the child does not maintain links with the birth family without the consent of the child’s birth parent(s) where this is deemed to be in the child’s best interests.⁵² In England and Wales, if a foreign national child was habitually resident in England under Article 8 Brussels IIbis, the English court could adopt orders under Children Act 1989 to protect the child⁵³ in England.⁵⁴ The question of whether jurisdiction over the care proceedings should be transferred to the Member State of the child’s nationality under Article 15 of the Regulation should always be considered in care proceedings involving a foreign national child.⁵⁵ Under Article 15, the court had to consider whether the foreign court was better placed to hear the proceedings and whether the transfer was in the child’s best interests, accounting for the impact of the transfer on the welfare of the child, but not the potential outcome of substantive proceedings, that is, the long-term future of a child deemed to be at risk if care is maintained in their family.⁵⁶

Concerns were expressed within the EU over the differences in law and practice in relation to child protection in the different Member States. In English care proceedings there has been increasing willingness to transfer jurisdiction over a child national to another Member State to respect the interest of the other country in protecting their nationals, but this transfer should only occur when transfer is in the child’s best interests.⁵⁷ Where a child is at risk, the English court is obliged to act for the child’s protection, but other countries regard the English law approach of placing children removed from their parents’ care in adoption and preventing contact with the birth parents as highly problematic.⁵⁸ This approach to adoption as an outcome from child protection proceedings in England and Wales attracted significant criticism from other Member States⁵⁹ and encouraged the English court to consider transfer of jurisdiction to enable the Member State of which the child was a national to determine the long-term future of the child.

There have also been practical difficulties in the execution of the process for transferring jurisdiction to the foreign court which will hopefully be addressed to some degree by Regulation 2019/1111, the Recast Regulation.⁶⁰ Between EU Member States, transfers of cases between jurisdictions are now managed under Article 12, Regulation 2019/1111, which now contains specific time limits for informing the foreign jurisdiction of a potential transfer and instituting proceedings, and jurisdiction can be accepted by the foreign court if it is in the best interests of the child. Practical concerns relating to the production of social workers reports regarding issues such as assessment and organisation of kinship placements in the foreign state, and cooperation between social work services between the Member States may however still be difficult to coordinate.⁶¹

The experience of cross-border family disputes in the EU has demonstrated that the impact of family violence and child abuse has a significant cross-border dimension. However, the legal framework, along with systems of cooperation between key actors in child protection services such as social workers, has not been conceptualised with this issue in mind. EU private international family law has been developed with private law disputes as the focus, where it is most often the case that the best interests of the child are secured through protecting and supporting family relationships post relationship breakdown between the parents. The complexity of the child’s circumstances where the child is at risk of abuse or neglect poses additional challenges when a cross-border link is also evident and the role of the state in intervening in the family changes the nature of the dispute. The substantive outcomes for the child themselves, and their wider family, may be significantly different depending on the country where the dispute is heard and the available options for a child deemed to be at risk of abuse or neglect.

11.3 The European Child and the Abusive or Neglectful Family

In recent years, there has been far greater focus within the EU on the rights of the child and how these can be protected and mainstreamed throughout EU law.⁶² The European Commission’s recently published ‘Strategy on the Rights of the Child‘⁶³ identifies combatting violence against children and ensuring child protection as a priority. The impact of violence occurring within the family is highlighted as a concern. The Commission seeks the promotion of integrated child protection systems, working together to protect and support the child in their best interests.⁶⁴ They direct attention to prevention measures, particularly family support designed to maintain and safeguard the child in their family environment. These are key factors for effective cross-border child protection, since there should be a framework for clear routes of cooperation between state authorities for the welfare of the child. The Commission also asks Member States to promote national strategies for family- and community-based care with a focus on preparing children to leave public care.⁶⁵ Despite this engagement at a policy level, the child as a victim of abuse and neglect within the family is not clearly defined within the European conception of the family and remains an oblique factor in developing European family law rules.

The key factor for the EU in building child protection mechanisms is its limited competence to do so in this field. Children as victims of violence or risk of harm has been an issue in other legal contexts, particularly the trafficking of children,⁶⁶ and the child as a victim of crime.⁶⁷ These measures are based on the EU competence in relation to cross-border criminal law under Title V TFEU.⁶⁸ It has engaged with violence against children in the context of the Daphne research funding programme which supported research projects that aimed to protect children, young people, and women against violence.⁶⁹ The funding calls included transnational projects seeking to build professional capacity in child protection,⁷⁰ but had very broad scope covering a range of different research priorities. The Fundamental Rights Agency has produced a guide to the protection of children found outside of parental care in a Member State other than that of their nationality, although this largely focuses the specific and specialised needs of children trafficked within the Union.⁷¹

The recognition that the child may face significant abuse and violence within the family environment is partial and fragmented across the EU legal competence and policy framework. The child harmed within the family is a victim of crime, yet state intervention through social work support and monitoring, and family law child protection frameworks is usually the priority response where a child is identified at risk of abuse or neglected within this environment. The nature and approach of this framework in responding to child abuse and neglect obviously lies within the competence of the Member State. However, the experience of abuse and neglect by children with family links in more than one country may add a distinct European dimension to child protection in the cross-border family, strongly in evidence in the practice of the Brussels IIbis Regulation. The family as an abusive environment is out-of-focus, only obliquely acknowledged by European law in fragmented diverse contexts. This is partly due to the significant differences in child protection regimes across the Member States and the challenges associated with assessment of risk and cultures of protection.

11.3.1 Differences in Family Laws and Understandings of Child Protection

Despite elements of harmonisation within the EU and Council of Europe legal frameworks, it is evident that family laws across the European legal space remain different. This is the case in relation to both their underlying approach (beyond the distinctions between common law and civil law systems) and in decision-making processes in disputes relating to children. This is particularly the case in public law and arrangements for children under child protection measures provided by the state, broadly conceived. In this context, methods of cooperation are not closely developed between states, despite the existence of International Social Services,⁷² designed to assist children and families with social problems arising from migration, and the work of charities such as Children and Families across Borders within this framework.⁷³ The potential for intra-State controversies over the differences in approach have been made evident in the EU context, with significant political concern expressed over the English practice of adoption as an outcome of child protection proceedings by other EU Member States.⁷⁴ The approach to child protection across the Member States is highly variable with different emphasis on family engagement, placement, and use of adoption in different legal systems within different underlying political legal cultures.⁷⁵

The perception and understanding of risk to children exposed to violence, abuse, and neglect is heavily influenced by culture. The response to evidence of risk can differ both in the broader legal culture and regulatory environment, but also on the ground practice and experience of the social workers and, if necessary, legal actors. Weston and Mythen have explored how professions involved in child protection understand and perceive the risks posed to children in the context of child sexual exploitation.⁷⁶ In a localised domestic study, they found that interactions with children and perceptions of the risks to their welfare are influenced by the practitioners’ background assumptions and the context of the decision-making. In particular, they found that personal opinions seeped into professional assessments and decisions relating to children, in assessing the nature of the risks posed, its source, and appropriate interventions. They demonstrate that in assessing risk, and choosing state intervention in the family, the influence of localised legal and professional culture is very strong. Walklate and Mythen identify (in relation to domestic abuse) that: ‘… those deemed at risk are not forensically measured … they are constructed within a logic of norms and values that are felt’.⁷⁷ The tendency within child protection practice has been to broaden the understanding of what poses a risk to a child since the turn of the century,⁷⁸ but the assessments determining risks posed to children remain strongly individualised.

The response of the domestic legal system to a child at risk in the family is therefore heavily informed by (potentially highly) localised cultures and practices. It has been suggested that perceptions of risk in determining abuse are too individualised and localised, rather than addressing the general causes of harm to children.⁷⁹ However, these broader contextual factors could also have an influence on how the professionals involved regard and interpret the parenting practices of a non-national family, or assess a placement for the child in another Member State. How to effectively coordinate these systems at both a social work and legal level has been left largely unexamined, remaining a sub-concern in the management of cross-border cases though there is a rising number. The EU conception of family life, in obscuring and only partially engaging with family violence and abuse of children in this context, has meant these concerns are left outside of the scope of policy formation for effective consideration and engagement.

Private international family law has always operated to partially obscure the differences between legal systems. As a system of law that is designed to accommodate and manage the impact one legal system may have on another, private international law rules are often designed to limit the focus on differences between both substantive legal rules and processes for dispute resolution. However, the EU has sought to use private international law as a means to encourage migration and integration within Europe. The emphasis on uniform assumption of jurisdiction is to encourage the mutual recognition of resulting judgments within the European judicial space. However, Meeusen has questioned the extent to which this approach is suitable for family law, pointing out, ‘The very strict regime of mutual recognition now obliges Member States to accept the content of family law decisions originating in other Member States as if they were indifferent to the substantive outcome of these cases.’⁸⁰ He argues that European private international law ‘… radically liberalizes international family law in a somewhat hidden way, while Member States are at the same time unable to reach agreement on common substantive principles and rules of family law’.⁸¹ In the context of children at risk of abuse within the family, this criticism is particularly pertinent. This aspect of European private international family law has placed the tension between assumption of jurisdiction over children and the legal indifference to substantive outcomes for the child under particular pressure.

11.4 Conclusions

The European Commission’s Strategy on the Rights of the Child states that its ‘… overarching ambition is to build the best possible life for children in the European Union and across the globe’.⁸² The range of policy and legal engagement with children across the breadth of EU competence demonstrates an ongoing strong commitment to securing children’s rights within Europe, even if there are difficulties in practice for the achievement of this ambition.

The limitations on this ambition and of European engagement with children in the family are demonstrated by considering cross-border child protection where a child is identified in one Member State as at risk of abuse or neglect in their family environment. Legal borders are still significant for these children and families. There are considerable differences between the Member States in the practice of child protection and the perception and understanding of risk and risk management. In this sphere, the substantive outcomes of legal systems still really matter and are significantly different. Parents who abuse or neglect their children have not been perceived as an aspect of the EU conception of family life, where rights are associated with securing opportunities, rather than also recognising a concomitant need to prevent and protect children from harm by the family. The tension between the indifference of private international law rules, and the significance of the substantive decision for the child and family concerned, deserves further reflection and consideration in the future practice of EU law and development of cross-border policies on cooperation over children and their welfare.

12 The EU Family Surviving Ideological Familism in Times of Illiberalism

Nausica Palazzo ^*

12.1 Introduction

Reflections around European Union (EU) family law start off by noting that the EU has no exclusive or shared power to regulate substantive family law.¹ This might induce one to think that the family is not a privileged object of regulation for EU law.² However, the family is not absent from the EU legal framework.³

The legal regulation of the family is currently dispersed across the extensive body of EU laws. We can find fragments in legal acts that result from the EU power to harmonise private international law rules applying to such families as enshrined in Article 81(3) of the Treaty on the Functioning of the EU (TFEU), the only Treaty provision granting an explicit EU competence over family law.⁴ Yet, the current ‘architecture’ of EU family law is more complex than that.⁵

Particularly, the development of the case law in the area of family-related discrimination⁶ and fundamental rights attests to the growing constitutional relevance of the family in the Union.⁷ The regulation of the family can be found in a series of documents of constitutional significance, such as the Charter of Fundamental Rights of the European Union (the Charter). However, its constitutional status should be taken to refer to a larger notion of constitutional relevance that certain EU legal provisions possess. As De Baere and Gutman put it:

it is remarkable the extent to which European family law is a constitutional topic par excellence, taking into account its linkage to the subjects of Union citizenship, discrimination and fundamental rights, as well as to recent institutional developments that are of ‘constitutional’ importance to the EU, such as the recourse to enhanced cooperation for the first time in connection with the ‘Rome III Regulation’ on divorce …⁸

This doctrinal circle lies further from the ‘centre’ of family law⁹ in the sense that for historical reasons it is less intuitive to think of the legal regulation of the family as falling under the purview of constitutional law.¹⁰ This chapter contributes to the literature on this larger circle, commenting on recent developments that point to a growing constitutional relevance of the family. As they started to attract the (LGBTQ) family in the controversial area of the EU’s common values, these developments could not easily be predicted.¹¹ This shift, as will be shown, is manifesting itself in conjunction with the rise of illiberalism across the Union. In the same way in which, in illiberal regimes in Europe, the traditional family is becoming a focal point in the construction of national identity,¹² the EU is prepared to mobilise the protection of LGBTQ people and families from discrimination as a matter of ‘identity’ and common values. Looking at the role of family in similar European culture wars and how it reflects on the constitutional relevance of the family in EU law is essential to understand the contemporary moment.

After exploring the notions of illiberalism and familism in Section 12.1, the chapter proceeds to explore the case studies of Hungary and Poland to assess how an ideological usage of the family is mobilised within illiberal discourse (Sections 12.2 and 12.3). In Section 12.4, the chapter explores the reaction that similar developments have triggered on the part of the EU and assesses the actual and likely repercussions of such developments on the ways in which the EU treats the ‘family’ as an object of EU constitutional law. The central claim of the chapter is that similar developments attest to a tentative yet discernible expansion of the constitutional relevance of the family in the space of the EU which occurs as a result of increased protection of LGBTQ families.¹³

12.2 Illiberalism, Familism, and the European Family

The family as a social formation continues to attract much attention by illiberal actors and assumes special relevance in European-style culture wars. In these ongoing culture wars, a certain ‘fatigue’ of some Member States towards the EU is becoming increasingly visible,¹⁴ and the family is one of the areas that illiberal political actors focus on to catalyse an anti-European sentiment. Hence, the role of the family within illiberal political agendas deserves more sustained reflection in socio-legal scholarship and EU law scholarship.¹⁵

‘Illiberal democracy’ is the tag that Hungarian Prime Minister Viktor Orbán attached to his plan to dismantle liberal democracy as we know it.¹⁶ After he publicly committed to building an illiberal democracy in 2015, Jarosław Kaczyński, the leader of the Polish populist party Law and Justice winked at him and pledged to build a ‘Budapest in Warsaw’.¹⁷ It was straightforward for Kaczyński to deliver on his promise: meanwhile, he had been waging a war on ‘gender’ in 2012–2014 and spreading seeds of gender conservativism throughout the country.¹⁸

In academic usage, ‘illiberalism’ refers to a political movement that rejects the key traits of liberal democracy.¹⁹ It is a specific sceptical posture that accuses liberal democracies of failing on several fronts, including the political, the cultural, and the economic.²⁰ At present, there are contrasting views regarding whether illiberalism has a core ideology or whether it constitutes an empty signifier in semiotic terms. However, in the area of human rights, it displays a clearer ex negativo content across illiberal agendas (in their rejecting certain specific features of political liberalism), and in this sense it could be seen as a thin-centred ideology. Specifically, illiberalism displays a revulsion for pluralism and individualism.²¹ These traits are supposedly atomising society and disrupting meaningful social bonds by replacing the communal order with a ‘chilly, egoistical, and morally hollow one’.²²

As illiberals rally around conservative understandings of gender and family and partake in that kind of ‘gender policy backsliding’,²³ or ‘war on gender‘,²⁴ the family becomes the stage where critical, almost eschatological, identity struggles are waged.²⁵ The illiberal script explicitly attributes the collapse of national identity to the collapse of traditional gender and family norms.²⁶ It flatly rejects interpretations of family and women’s roles in society that allegedly contradict nature.²⁷ It is to these distorted and ‘unnatural’ understandings of family, gender, and sexual orientation that, for example, Polish illiberal actors refer to as the ‘ebola from Brussels’.²⁸

Similar discourses derive nourishment from opposition to Brussels. More broadly, they tend to stress the existence of an external power that seeks to impose exotic legal reforms which clash with local mores. Such external powers are dubbed differently depending on the geographical context and the aim that the invoked opposition is seeking to achieve. They are variously labelled as ‘the West’, ‘the Communist regime’, ‘the European Union’, and ‘liberal élites’.²⁹ A recurring criticism is, for instance, that these powerful elites are carrying out a global ‘sexual revolution’ to reduce population growth and destroy traditional societies.³⁰

To assess the role of the family within illiberal agendas, one also has to look at how illiberalism welds together with the notion of familism. Familism is a polysemous term that inter alia refers to an ideology that values the family over other social bonds.³¹ It furthermore refers to discursive construction of an abstract family model that acts as an ideal for other social institutions, including the state.³² Familism per se is not necessarily problematic. Illiberal actors across Europe, however, seem to be appropriating the ideology of familism to achieve objectives that often transcend family politics – and are more connected to those majoritarian aspirations that characterise illiberalism. Diluting the rights of family members therein, especially women, is one of such aspirations. As Korolczuk and Graff put it, illiberalism is ‘constructing a new universalism … that replaces individual rights with rights of the family as a basic societal unit’.³³ An instrumental recourse to familism is evidenced by the fact that this family-centred ideology does not always translate into actual family policies. By and large, it ‘acts as an ideological base to which states and policy makers can refer to, to justify their decisions in matters that often exceed the scope of family politics’.³⁴

Illiberal ideological familism³⁵ is detrimental to non-traditional families, particularly LGBTQ families. For example, research shows how ideological familism was discursively mobilised in the debate preceding the enactment of the new Hungarian law on ‘paedophilia’ targeting the LGBTQ community.³⁶ On that occasion, through this strategic embrace, Hungary’s ruling Fidesz–KDNP Party Alliance sought to demonise the LGBTQ community by depicting it as a threat to innocent children and LGBTQ families as more prone to child abuse.³⁷ It is also potentially detrimental to families that align with the illiberal model of family to the extent that illiberal attitudes are reproduced within this type of traditional family and can prove harmful to women and children.

A second analytically useful notion to understand the illiberal enterprise is that of familialism. If familism emphasises the centrality of the family in rights talk, this second notion – ‘familialism’ – links the family to national demographics and reproductive needs. German sociologist Andreas Kemper refers to familialism as a form of biopolitics that takes ‘a strictly standardised image of a ‘functioning family’’ as a foundational unit of the nation.³⁸ This ideology simultaneously subordinates individual choice to the normative demands of the reproduction of the nation. It comes across as a new form of gender conservativism that singles out a ‘limited, population-biological-national, and normative idea of the family’ to pursue national population policy.³⁹

Below I offer an overview of the ideological usage of the family in the two textbook cases of Hungary and Poland. As it will be noted, these developments pose a direct challenge to the EU and its attempt to uphold in its acquis more progressive understandings of family that include protection of LGBTQ couples.

12.3 Hungary

With Fidesz’s 2010 Manifesto (Nemzeti ügyek politikája), the family gained a new centrality in the illiberal discourse in Hungary.⁴⁰ The Manifesto suggests that past liberal governments neglected families, giving in to the allure of the sirens of modernity, progressivism, and neoliberalism. According to Orbán, who repeatedly referred to a failure of the state to prevent families from ‘falling into debt slavery’, the collapse of the family is visible both at the conceptual and the financial level.⁴¹ Its conceptual and financial breakdown contributed to the weakening of the nation.⁴² The restoration of the centrality of families and family policies hence goes hand in hand with a conviction that working families contribute to the well-functioning of the nation, so policies ‘should be directed there’.⁴³ It furthermore operates within the larger project of ‘symbolic-constitutive rejection of the liberal left as illegitimate to rule or participate in (defining “real”) democracy’.⁴⁴

Fidesz’s discourse around gender and family has evolved over time. Scholarship has identified two phases, 2010–2014 and 2014–2018, in which the party emphasised different aspects to create a structural link between the Hungarian national identity and the family.⁴⁵ From 2010 to 2014, a first connection was established between the people of Hungary and Christianity, seen as the origin of morals and social norms. According to Orbán, the economic crisis of 2008 was caused by a moral crisis, and addressing the former required first and foremost addressing the latter.⁴⁶ Noting a worrisome disentanglement of work, credit, family, and nation from the moral foundations of the ‘Christian’ nation, Orbán pledged to reconstruct the link between the two by foregrounding families as the central target of state policy. According to Robert Sata, a researcher who conducted a systematic discourse analysis of Orbán’s speeches from 2010 to 2018:

[u]sing this logic, the Fidesz government has not only enshrined ‘the family’ as a marriage between a man and a woman into the constitution but it also clearly defines the role of women in its vision for Hungary and the ideal Hungarian family – they should stay at home to rear enough children to form a strong Hungarian nation. This is because, for Orbán, the demographic downturn in Hungary is as important as fighting the economic crisis, because it threatens the future of the community, making Hungarians ‘an endangered species’.⁴⁷

Between 2014 and 2019, another aspect gained traction, namely the strong anti-immigration stance of the ruling Fidesz–KDNP Party Alliance. This posture was achieved by linking Christianity more closely with national identity – beyond a mere matter of personal faith. It was, furthermore, achieved by reconstructing the role of women within society. Women were notably called upon to restore their traditional function as the bearers of reproductive capacities.⁴⁸ They were reminded of their larger responsibility towards the continuation of the Hungarian nation. In the last few years, gender-related rights in the country suffered from a setback, as exemplified by the replacement of gender mainstreaming policies with family mainstreaming policies and by the reconceptualisation of the role of women in society into mere mothers. A setback was furthermore illustrated by the observed decline in women’s reporting of sexual violence, due to a hostile environment created through genderphobic policies.⁴⁹

In this second phase, the opposition against Brussels elites also became more overt. The EU, feminism, and liberalism have been blamed for low birth rates, and for imposing a ‘gender agenda’ that blurs natural boundaries by ‘creating a third gender, … ridiculing faith, and regard[ing] families as redundant, and nations as obsolete’.⁵⁰

A key year in this phase is 2019. Fidesz dubbed 2019 as ‘the year of the family’.⁵¹ In 2019, Fidesz passed the Family Protection Action Plan.⁵² The reform came as the outgrowth of the described centrality of family in the project of national reconstruction launched with the 2010 party’s Manifesto. The Plan included a vast array of social welfare policies aimed at supporting families, spanning preferential housing loan or ‘baby-expecting allowance’ (‘babaváró támogatás’), tax breaks for mothers of at least four children, crèche service, and childcare allowance for working grandparents.⁵³ While these policies pursue commendable goals, the European Commission, in its assessment of the measures, expressed some concerns. Especially, it pointed to the fact that the baby-expecting allowance was only available to married couples, and that in case of divorce the loan contract must be terminated (since marriage is an eligibility condition).⁵⁴

By and large, whereas public spending on family policies has doubled since 2010,⁵⁵ it is targeted at very specific groups, such as large families. Roma families do not profit from the different family programmes, even though they are the group most affected by poverty.⁵⁶ Their exclusion is premised on the ruling party’s aspiration to link family policies with anti-immigration policies. It also seems consistent with the state objective of boosting Hungarian demographic indicators. These exclusionary policies seem to dovetail with the notion of ‘welfare chauvinism’ under which welfare spending can be appropriated to draw the boundaries of authentic citizens and exclude ‘others’⁵⁷ – a posture that aligns with the idea of a ‘ethno-exclusionary welfare state’.⁵⁸

Even more than welfare law, it is constitutional law that has been at the heart of the illiberal promotion of the traditional family. The year 2021 marks the entry into force of major constitutional amendments aimed at entrenching traditional notions of family. The ideological context in which the amendments were passed made explicit the intent of relying on biological evidence in constructing family ties and not international trends or ideologies in relation to childbearing.⁵⁹ The 2011 text elevated the family and the nation to the status of ‘cornerstones of co-existence, with loyalty, faith and love constituting the principal values of unity’,⁶⁰ and attempted to recast the family as an institution of national relevance.⁶¹ The 2020 Ninth Amendment of the Fundamental Law claims that ‘[t]he mother shall be a woman, the father shall be a man’⁶² in an attempt to render the gender identity of the parents of a child immutably linked to their biological sex. Under Article XVI, ‘Hungary shall protect the right of children to a self-identity corresponding to their sex at birth, and shall ensure an upbringing for them that is in accordance with the values based on the constitutional identity and Christian culture of our country’. Ultimately, the definition of family refers to the heteronormative relationship of two adults of different sex founded on marriage complemented by the nuclear component. The entrenchment of the traditional family is hence total and covers both the sexual orientation of the parents, the gender identity of family members, and the nuclear imperative.

These brief notes should explain the broader context of the emergence of the Hungarian child protective law that targets LGBTQ people equating them to paedophiles, recently challenged by the EU.⁶³ It furthermore illustrates the marked centrality of the family in the Hungarian illiberal discourse.

12.4 Poland

The Polish tradition, the Polish republican tradition, the Polish tradition of freedom, so Poland is an island of freedom, because this freedom in Western Europe today is retreating. Today, for saying the obvious, that there can be no children from a homosexual couple, you can face a criminal trial in some countries. This will not be accepted in Poland under any circumstances, as they say in Podhale.⁶⁴

Podhale is a conservative region in the South Polish mountains where the Górale population live. By referring to it, Kaczynski suggests that something will never be accepted due to the conservativism of the region. In a series of statements delivered in September 2019, Kaczynski foregrounded the family as the centrepiece of Polish society. In his view, families should be understood to refer to a self-evident entity comprising ‘one man, one woman, in a lasting relationship, and their children. This is a family’.⁶⁵

The rhetoric employed by the ruling party in Poland follows a script similar to that employed in Hungary. First, the welfare system is crucial for re-establishing the lost centrality of the family. Its rediscovered centrality is best exemplified by the so-called 500+ Policy. The program is the ‘the most expensive and wide-scale redistribution policy in post-1989 Poland’⁶⁶ and was introduced to reverse negative trends in demographics.⁶⁷ Under the program, every family receives a 500 Zloty (around 105 euro) tax-free monthly payout per each second and subsequent children under eighteen, independent of the family income. Under certain conditions, non-citizen residents can join the program.⁶⁸ The program received generally positive reviews due to its contribution to increasing fertility and combating poverty. At the same time, however, the EU Commission expressed concerns over the effects an additional non-work income can yield on the participation in the labour market. The Commission noticed that, according to the most recent statistics, the program incentivised workers with low wages to stay at home,⁶⁹ and that women find themselves at higher risk of dropout from the labour force as they bear the highest burden of caregiving duties.⁷⁰

A second common trait between Poland and Hungary is the idea that families are entrusted with a host of communitarian goals, including the goal of transmitting the ‘culture of civilization, for the sustainability of larger communities’.⁷¹ Notwithstanding their important social function, family units are seen as being systematically under attack.⁷²

Recasting the family as the central target of state policy first entails a reconceptualisation of the role of women in society. A recent report of the United Nations (UN) notes the ‘pervasive and flagrant stereotyping of women, including by some political leaders, as unsuited to political power and the insistence on a woman’s role as primarily wife and mother’ ensuing from similar policies.⁷³ It secondly leads to a new emphasis on family mainstreaming, similarly to what occurred in Hungary, and to erasing the term ‘gender’ from the government agenda. Grzebalska and Petö describe ‘family mainstreaming and anti-gender policies [as] one of the main pillars on which the illiberal state has been erected, and through which security, equality and human rights have been redefined’.⁷⁴ The Family 500 Plus policy described above can also be interpreted through a similar lens.

A key battle of illiberal actors in the area of sexuality and reproduction is also waged on the scholastic front.⁷⁵ In Poland, a new school subject called ‘History and the Present’ was recently introduced. The subject aims at better portraying Polish history and society and will soon be taught in schools all over Poland with a (controversial) mandatory handbook.⁷⁶ One specific section in the book drew the criticism of the opposition parties and civil society, since it frames in-vitro fertilisation as human breeding. The contested passages refer to ‘the creation of arbitrary groups of people sometimes of the same sex, who will bring children into the world separately from the natural union of man and woman, most preferably in a laboratory’.⁷⁷ The book voices a larger criticism to Western ideology and its embedded trends affecting family relationships. The main targets of criticism are the contemporary separation of sex from love and fertility (i.e. reproduction), and the degrading of sex to a mere leisure activity. These trends are in turn described as damaging for children who are, as a consequence, left stranded and deprived of the love of parents.⁷⁸

Ultimately, constitutional discourse is also mobilised by Polish illiberal actors. The concept of family appears in numerous provisions of the Constitution. Relevant provisions state that the family is under the protection and guardianship of the Republic of Poland. The family is constructed narrowly as comprising a man and a woman who are married,⁷⁹ as well as their children and relatives on both sides. Furthermore, the Constitution enshrines the right of parents to raise their children according to their personal convictions,⁸⁰ and the right of the child to be protected against demoralisation.⁸¹

With conservative family norms being entrenched at the constitutional level, regressive policies are mostly advocated for at the local level, where a form of ‘regressive’ experimentation occurs. The main example in this regard is the Charter of Family Rights drafted by the influential far-right, Catholic think tank Ordo Iuris Institute for Legal Culture.⁸² The Charter of Family Rights supplies a model law for local governments to enact local policies aimed at combating fake news informed by an ‘LGBT ideology’ – as well as the ‘political correctness’ of the EU. According to Ordo Iuris, similar deplorable ideas are spread by the EU and other international organisations, such as OSCE.⁸³ In the aftermath of the European Parliament resolution condemning the Charter and the creation of LGBT-free zones – outlined in the section below – the Deputy Director of Ordo Iuris Center of International Law firmly defended this model law placing emphasis on familism, and on the Charter’s ability to foster ‘family-friendly law’.⁸⁴

12.5 The EU’s Response to Illiberal Erosion

In recent years, the Commission has taken legal action to protect the rights of the LGBTQ community in Hungary and Poland.⁸⁵ In Poland, the mentioned creation of ‘zones free from LGBT ideology’ has been at the centre of the EU’s criticism. The problem was successfully linked to the possibility for Poland to receive European Structural and Investment Funds. In March 2021, the European Parliament voted in favour of a second resolution declaring the EU an ‘LGBTIQ Freedom Zone’,⁸⁶ and called upon the Polish government to revoke those local discriminatory declarations patterned after the Charter of Family Rights.⁸⁷ The Commission, furthermore, initiated talks with Polish local authorities expressing concerns for the adoption of similar declarations hostile to LGBTQ families. According to the Commission, these declarations especially run counter to the values enshrined in Article 2 of the Treaty on European Union (TEU) – respect for human dignity, freedom, democracy, equality, the rule of law, and respect for human rights, including the rights of persons belonging to minorities, as well as Article 7 of Regulation 1303/2013 on EU funding, prohibiting discrimination on several grounds, including sex and sexual orientation, ‘during the preparation and implementation of programmes’.⁸⁸

The Resolution of the European Parliament furthermore contains an important declaration of intent that points to the main advancements that the Union pledges to make in the forthcoming years. Recital X refers to ‘the lack of legal provisions for the mutual recognition of a birth certificate with two same-sex parents’ and a legislative initiative to close this legal gap, as well as ‘a revision of the 2009 guidelines on free movement, both scheduled for 2022’.⁸⁹

At the beginning of December 2022, the European Commission proposed new rules on the recognition of parenthood amongst Member States which would demand, inter alia, recognition of the parenthood of children of same-sex couples.⁹⁰ The proposal was submitted as part of the EU’s strategy for the rights of the child as well as the EU’s LGBTIQ Equality Strategy 2020–2025.⁹¹ While the proposal does not explicitly link the reform to the deterioration of the rule of law in Poland and Hungary, its approval would inevitably limit the ability of the Member States to pass laws that adversely affect the legal status of children and parents in LGBTQ families by preventing the recognition of family ties established abroad.⁹² For this reason, one can anticipate an obstruction of the proposal by countries like Poland and Hungary.⁹³ Given the requirement of unanimity in the Council, Poland and Hungary can exercise their veto power and prevent the proposal from ever becoming legally binding.⁹⁴

A surprising development is the recent decision of the Commission to launch an infringement procedure against Hungary and its child protective anti-LGBTQ law. The reform introduced a prohibition to expose minors to content related to homosexuality and gender reassignment, restricted daytime display on TV on content related to these topics, and limited the ability to provide sex education in school to only certain listed organisations. The Children Protection Act’s declared objective is to increase sanctions against paedophile offenders. At the time of the enactment of the law, the European Commission noted that ‘[t]he protection of children is an absolute priority for the EU and its Member States. However, the Hungarian law contains provisions which are not justified on the basis of promoting this fundamental interest or are disproportionate to achieve the stated objective’.⁹⁵ Similarly, Ursula von der Leyen expressed concerns in relation to the reform, noting that it ‘clearly discriminates against people on the basis of their sexual orientation and … goes against all the values, the fundamental values, of the European Union’.⁹⁶

The most problematic aspect of the law is that it conflates paedophilia with homosexuality.⁹⁷ During the parliamentary discussion preceding its enactment, an analogy was drawn between exposing children to queer gender and the issue of child abuse by LGBTQ families, thereby ‘evok[ing] the historically widespread myth that non‐heteronormative sexualities and child abuse are inevitably connected’.⁹⁸ As argued by conservative member of the Hungarian National Assembly János Volner, ‘the LGBTQ movement has more than once been involved in similar scandals’.⁹⁹

A new law passed in April 2023 further corroborates the idea that the hidden objective of the reform is to harm the LGBTQ community, particularly LGBTQ families: the Whistleblowing Act would have allowed citizens to anonymously report to authorities gay and lesbian couples who raise children, and any family arrangement that offends the traditional family as enshrined in the Constitution.¹⁰⁰ The law has then been vetoed by the president of Hungary, Katalin Novak.

What is relevant to the present analysis is that, for the first time, in February 2023, the Commission proposed a standalone plea based on Article 2 TEU, which lists the values of the Union, to challenge the Hungarian law. The toolkit aimed at countering rule of law deterioration is expanding. The nuclear option¹⁰¹ under Article 7 TEU did not prove so nuclear in the end due to its burdensome and lengthy procedures, including the vote of the European Council by unanimity to establish ‘the existence of a serious and persistent breach’. In the face of a failure to utilise this procedure, the EU has been seeking workarounds. Amongst them is the use of infringement actions,¹⁰² and of Regulation 2020/2092 on a general regime of conditionality for the protection of the Union budget, which makes EU funds contingent on the respect of the rule of law.¹⁰³ The budget Conditionality Regulation has been ‘validated’ by the Court and – acting in tandem with a ‘multitude’ of other existing conditionality mechanisms – is likely to constitute an important tool for ensuring compliance with rule of law values through the powerful leverage of withholding EU funds.¹⁰⁴

As to the infringement actions, these are proving the barycentre of the EU’s response to illiberal erosion. In a first phase, the Commission brought ‘indirect’ infringement actions to counter democratic backsliding in Hungary – in the sense that it did not explicitly link these actions to the rule of law.¹⁰⁵ Recently, however, the Commission has pursued ‘direct’ infringement actions that more explicitly counter rule of law deterioration,¹⁰⁶ based on the Charter or Article 19 TEU (protecting judicial independence).¹⁰⁷

The use of a standalone plea based on Article 2 is a new move, described by commentators as nothing short of ‘revolutionary’.¹⁰⁸ The move occurs against the backdrop of a lively scholarly debate on whether this plea was possible and, if so, normatively desirable.¹⁰⁹ The plea is included in a prima facie routine infringement proceeding against the child protective anti-LGBQT law. It points to Hungary’s failure to comply with the Audiovisual Media Services Directive (AVMSD)¹¹⁰ – protecting minors from inappropriate content in on-demand media audiovisual services – and certain EU law provisions on services and e-commerce.¹¹¹ The pleas pivoting on the AVMSD also point to a violation of Articles 1, 7, 11, and 21 of the Charter, which protect the value of dignity, the respect for private and family life, the freedom of expression and information, and, ultimately, the right to non-discrimination inter alia based on sex and sexual orientation. Then, there is the mentioned succinct passage in the press statement according to which ‘by adopting the legislation cited in the first paragraph, Hungary has infringed Article 2 TEU’.¹¹² It is unclear whether the Commission will link the Article 2 plea to the gravity of the Charter violations since the argument is not developed further. According to Bonelli, ‘[f]or the time being, it is sufficient to point out that the two formulations, taken at face value, seem to go in two slightly different directions: one where a violation of Article 2 TEU would result from a serious breach of several Charter rights; and one where the alleged infringement of the values of Article 2 TEU would constitute the actual alleged violation.’

This passage attests to the growing determination of the EU to tackle rule of law deterioration with a bite. The issue of protecting LGBTQ families as such looms over these developments, while failing to be openly foregrounded as central in the ongoing European culture wars. However, LGBTQ families seem to have gained enhanced constitutional relevance as a result of such developments. First, although the content of the Article 2 plea is not yet available, the infringement procedure summons the right to respect for private and family life and, hence, a negative sphere where LGBTQ people and, potentially, families should be protected. Second, the objective of the child protective law as one that seeks to ‘shield’ children from being exposed to LGBTQ populations is also flatly inconsistent with the ways in which the EU interprets the objective of protecting children as stated by Ursula von der Leyen.¹¹³ Third, the move comes after the mentioned EU Parliament resolution discursively engaging Article 2 to discourage the adoption of the Charter of Family Rights in Poland, and previous attempts at using Article 2 as an interpretative device in the letter of formal notice against Hungary’s child protective anti-LGBQT law.¹¹⁴

The latest move of Orbán’s government, allowing the reporting of LGBTQ couples with children and all families that offend the traditional model of family enshrined in the Constitution, as well as the emphasis placed during parliamentary debates on LGBTQ families being inherently abusive, could induce the Commission to lay focus on the delicate repercussions that the so-called child protective law has on LGBTQ relationships per se, not just on LGBTQ individuals. Put differently, the Commission is faced with the choice of either treating these parallel developments as mere background noise or as expression of a larger pattern pointing to systemic attempt to curtailing the rights of LGBTQ families as such.

In sum, recent moves by the EU, such as the ground-breaking utilisation of Article 2 TEU as a legally justiciable principle, may serve to reinforce the constitutional significance of LGBTQ families by sublimating the protection of an LGBTQ-friendly family at a higher level, so as to speak: the level of EU’s common values.

At present, this sublimation will likely primarily affect such negative sphere of freedom. The described steps attest to the gradual expansion of an emerging EU constitutional family law as a consequence of the attraction of the negative liberties of LGBTQ families in the foundational values of the EU. A separate question is whether the area of common values will become a tool to expand the EU’s competences and confer increased protection to LGBTQ families. For example, one may ask whether, in the future, the recognition of the legal ties of LGBTQ families through legal-regulatory regimes such as registered partnerships will also become a question that engages the EU’s common values.¹¹⁵ While illustrating this (now remote) possibility, the chapter does not take a position on the normative desirability of such an expansion.

12.6 Conclusion

As illiberal movements gain momentum across Europe, the EU faces new challenges that require an accelerated process of self-reflection. This chapter explored the ideological manipulation of the concept of family within illiberal regimes in Europe, and examined the Union’s response to this erosion of liberal values. Surprisingly, the ongoing ‘culture wars’ over family norms between the EU, Hungary, and Poland have served as a catalyst for increasing the constitutional significance of the family within the EU.

Following the rise of illiberalism, the EU found itself in a prolonged state of confusion, struggling with a sense of uncertainty. Recently, the EU seems to be moving beyond this phase in an attempt to supply clearer answers as to ‘what we are and what we want’.¹¹⁶ It is noteworthy that family and child protection issues have become an integral part of this endeavour to define EU identity and its foundational values. The protection of the rights and freedoms of LGBTQ families and communities, in particular, has emerged as a key area that increasingly engages EU common values in both discourse and legal frameworks, as evidenced by the reactions to the declarations of the Polish Charter and Hungary’s anti-LGBTQ child protection law. Recent developments provide an opportunity to pause and reflect on the unpredictable progress that has been made in recent years.

13 Epilogue to the Family in EU Law Is There a European Family Law?

Jens M. Scherpe ^*

13.1 Introduction

This volume on ‘The Family in EU Law’ is an important and very timely contribution to an important debate. It follows up on Clare McGlynn’s ground-breaking ‘Families and the European Union’. Much has happened since McGlynn’s 2006 book, but some things have not changed. The European Union (EU) still does not have legislative competence in the area of family law, and it probably never will. Nevertheless, the EU institutions and especially the Court of Justice of the European Union (CJEU) have increasingly had to deal with family matters, especially in the context of free movement of workers and cross-border cases more generally, as well as equality and non-discrimination. The EU Charter of Fundamental Rights has also begun to make an impact on families and family law, but is arguably still applied with too much trepidation.¹ In any event, the EU institutions and the CJEU have progressively utilised the competences that they do have, particularly to ensure the free movement of workers and non-discrimination in labour and social laws, with increasing impact on families and family law. Moreover, and as also will be addressed below, the 2019–2024 strategy and policy priority ‘Promoting our European way of life’ probably comprises significant family law aspects as well.²

The absence of a true and direct legislative competence on family law matters can explain that the family receives very little mention in the EU Treaties. Nevertheless, ‘family’ plays an important role in the above-mentioned contexts and is hugely relevant in many areas of EU law, as shown in many of the chapters in this book. This regularly necessitates a debate on what ‘family’ actually is, as well as what family-related terms like spouse, child, parent, and so on mean in the contexts in which they are used. It is fair to say that there is a significant divergence amongst Member States when it comes to understandings of ‘family’ and family law issues generally, making this an even more complicated and politicised area for the EU organs and institutions. Therefore, this book can make an important contribution to the development of this area of law.

This epilogue will first look at the ‘dividing lines’ in Europe, which have shifted significantly over the last decades. It then asks whether families are part of what (for better or worse) has been termed the ‘European way of life’, and if so, which families. Following this, this contribution then discusses whether despite the absence of a direct legislative competence, there are elements of a European or EU Family Law by looking at the notions of ‘Institutional’ and ‘Organic’ European/EU Family Law, concluding that while there is no universal definition of what is a ‘family’, there are elements of such definitions and indeed elements of a European Family Law and an EU Family Law.

13.2 From North–South Divide to East–West Divide

Historically, the dividing lines in family law used to be a reasonably clear divide between the ‘progressive North’ (leaving aside the Republic of Ireland and, to a certain extent, the jurisdictions of the UK) and the ‘conservative South’. This can best be seen when examining the development of the law of divorce, where predominantly Protestant jurisdictions had a more liberal approach and introduced divorce (much) earlier compared to those that were/are predominantly Catholic. Even permitting divorce as such was controversial in the latter until relatively recently, with divorce only being possible in Italy since 1970, in Spain since 1981, and in the Republic of Ireland since 1996. Malta, the last European jurisdiction to introduce divorce, did so as late as 2011.³ The development of divorce law in Europe has been described expertly by Masha Antokolskaia⁴ and thus need not be repeated here. Unsurprisingly, although today there still is no uniformity as to the bases of divorce/divorce grounds, there are clear trends towards an understanding of marriage and the divorce process that gives the spouses greater autonomy to regulate their own affairs, including divorce. What also unites all European jurisdictions today is the move beyond allowing divorce exclusively based on fault.⁵ Moreover, the trend towards greater autonomy of the spouses not only extends to the substantive divorce laws but also to the divorce process as such. In many jurisdictions in Europe, divorces no longer need to be pronounced by a court but are dealt with by administrative bodies or lawyers/notaries, thus dejuridifying the divorce process and removing it even further from state influence.⁶ It is also interesting to note that the arguably most ‘liberal’ (i.e. permissive) divorce laws that allow divorce on the mere basis that one of the spouses requests this can be found in the North (e.g. Sweden and Finland), South (e.g. Spain), East (e.g. Russia), and West (e.g. England and Wales) of Europe. The development of the law of divorce thus exemplifies not only the withdrawal of the state from trying to control marriage by setting moralistic divorce requirements, but also the end of the ‘classic’ North–South divide in family law in Europe.

Arguably, this divide has now been replaced with an East–West divide as regards the institution of marriage and what often has been termed (wrongly, as these relationships have always existed) as ‘new’ family forms, especially same-sex relationships with or without children. The development of the recognition of same-sex relationships has been described elsewhere in greater depth.⁷ For present purposes, it is sufficient to point out that this official recognition began with the emphatic statement of the Swedish lagutskottet (committee on legal affairs) in 1973 that ‘from society’s point of view, two persons of the same sex living together as a couple is a perfectly acceptable form of family life’.⁸ The process continued with the introduction of registered partnerships in Denmark in 1989,⁹ and culminated with the opening up of marriage to same sex couples twenty-eight years later with the Netherlands being the first jurisdiction to do so. Unlike in many non-European jurisdictions such as Canada,¹⁰ the United States,¹¹ South Africa,¹² and Taiwan,¹³ in Europe, this change was usually brought about through political and parliamentary initiatives¹⁴ and not by court challenges,¹⁵ although the motivation was the same: to end the discrimination against same-sex relationships.

Interestingly, the introduction of same-sex marriage defied the traditional North–South divide, with, for example, Spain introducing it in 2005, and thus before Norway (2008), Sweden (2009), and Denmark (2012). However, a new divide was also created. The recognition of same-sex marriages is largely restricted to Western European jurisdictions, with the notable exception of Slovenia and Estonia, with the latter opening up marriage to same-sex couples by an Act of Parliament in June 2023 (while this chapter was originally written!), with the law coming into effect in 2024.¹⁶ Several Eastern European jurisdictions have even gone so far as to amend their constitutions to define marriage as a union between a man and a woman only to prevent legislation that may allow same-sex marriages without a further constitutional amendment.¹⁷ By contrast, the Republic of Ireland went in the opposite direction and amended the Constitution to allow same-sex marriages after a public referendum. Regrettably, in some Eastern European countries the discussion on the recognition of same-sex relationships is ‘weaponised’ to further other political means and ostensibly a ‘national identity’.¹⁸ As a result, Europe and the EU Members States are at least as divided on the issue of same-sex marriage (and indeed same-sex parenting) as they were in the past on divorce except that the dividing line is now between the East and the West. These widely divergent views obviously make it even more difficult to establish what ‘family’ means in EU Law.

13.3 Do Families Have a Place in the ‘European Way of Life’? And if So, which Families?

How then do the European Institutions and EU law deal with the conflicting understandings of ‘family’ between Eastern and Western European jurisdictions?

In the first instance, arguably by avoiding it, or at least not addressing it directly. In her manifesto ‘A union that strives for more – My agenda for Europe’, the candidate, now-President of the European Commission Ursula von der Leyen used the word ‘family’ only twice and in the contexts of work–life balance and health.¹⁹ Given the central importance of families for the functioning of the Union and Member States, this was disappointing but perhaps can be explained by the fact that candidates for office tend to avoid topics of greater controversy to be more electable.

Moreover, neither the somewhat controversially named strategy and policy priority ‘Promoting our European way of life’²⁰ nor the Commission President’s Mission letter to Margaritis Schinas, the Vice-President for Promoting our European Way of Life, dated 1 December 2019, in which the latter is entrusted with his new role, contain direct mentions of family matters. With a little good will, one could read into the tasks that the Vice-President was given, namely ‘Ensuring coherence of the external and internal dimensions of migration’ (emphasis added) and ‘Coordinating work on inclusion and building a genuine Union of equality and diversity’, that the remit of the portfolio implicitly includes families generally, that is, also non-traditional families, and ensuring their unhindered right to free movement. Read that way, families must then be included in the ‘European Way of Life’ – but what families? How do families fit into the European way of life, what role do they play, and how are they composed? What is a ‘European family’, if there is such a thing? Are they different from other families, and if so, how? What would be the point of identifying a ‘European family’ – to treat them differently from non-European families? And is ‘European’ different from ‘EU’ in this context? Here is where the chapters of this book make an important contribution to explore this difficult, and controversial, area of law.

Remarkably, and to her credit, the Commission President later made it absolutely crystal-clear that she very much considers the recognition of all family forms as part of the Mission in her State of the Union Address 2020.²¹ Towards the end of the address, she made this point with astonishing directness:

Honourable Members,

I will not rest when it comes to building a Union of equality.

A Union where you can be who you are and love who you want – without fear of recrimination or discrimination.

Because being yourself is not your ideology.

It’s your identity.

And no one can ever take it away.

So I want to be crystal clear – LGBTQI-free zones are humanity free zones. And they have no place in our Union.

And to make sure that we support the whole community, the Commission will soon put forward a strategy to strengthen LGBTQI rights.

As part of this, I will also push for mutual recognition of family relations in the EU. If you are parent in one country, you are parent in every country.²²

That these are not just empty words could be seen in the subsequent initiative Proposal for a Council Regulation on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and on the creation of a European Certificate of Parenthood.²³ However, given the resistance of many Eastern European Member States to the recognition of parenthood of same-sex couples, evidenced by the positions taken by the respective Member States in the decisions of V.M.A.²⁴ and Rzecznik Praw Obywatelskich,²⁵ it is unlikely that the required unanimity for the passing of the regulation will be achieved.²⁶ This means that, at best, an enhanced cooperation may be the outcome – which is far from what the Commission President said she would work for in her Address and also would not fulfil the express LGBTIQ Equality Strategy 2020–2025 of the EU.²⁷

Objectively speaking, there is no general ‘European Way of Life’ when it comes to marriage, and the recognition of families and parent–child relationships. On the contrary, these issues have deliberately been turned into a battleground by some politicians. The language used by the latter usually entails claims to ‘protect our nation’s values’ and ‘our way of life’.²⁸ Unsurprisingly, those who have embraced these new family forms likewise demand that their values and their way of life is accepted and recognised. Achieving political consensus is, therefore, unlikely if not impossible. However, in the past, the same was said about divorce and probably holds true for most ‘controversial’ family law topics at the time.²⁹ Future generations will likely shake their heads in disbelief that this has actually been seriously debated.

For the nearer future, the matter will likely continue to lie in the hands of the judiciary and the application of human rights law.³⁰ In light of the European human rights jurisprudence,³¹ it seems fairly obvious that the denial of the existence (and refusal of recognition) of same-sex relationships and same-sex families cannot prevail. Moreover, the EU’s LGBTIQ Equality Strategy 2020–2025 at its core aims to ensure that ‘everybody in the European Union should be safe and free to be themselves’ and thus in reality mandates the recognition of these families.³² This inevitably creates huge tension within the EU and is a cause for great concern. As the author of this epilogue has written elsewhere:

In the absence of a common ‘European way of life’ on these issues, sadly the very best one currently can hope for – and even that seems doubtful – is the acceptance or tolerance of other jurisdictions’ ‘ways of life’. The Gordian knot of course is that both sides of the debate claim this acceptance. As it stands, the sword that is most likely to cut the knot is wielded by the human rights obligations of the European nations, but the danger is that it might cut too deeply for the Union to prevail.³³

13.4 Is There a European Family Law? Or an EU Family Law?

It has been and still is being doubted whether, in the absence of a body with legislative competence in family law (be it a European or EU one), there can actually be such a thing as European or EU family law. Yet this view laboured under the assumption that this family law would have to be embodied in a ‘European Family Law Code’,³⁴ that is, comprehensive legislation, to be recognised as such. But why would such a code be required? After all, nobody disputes the existence of European Consumer Law, even though there is no European Consumer Code. Neither does the absence of a specific legislative power for European/EU family law, and consequently family statutes, necessarily preclude the existence of a European Family Law or EU Family Law. Instead, there are bits and pieces of family law on a European level, which either have grown organically (so-called ‘Organic European Family Law’) as a result of similar national legal developments, or have been created by institutions such as the CJEU and the European Court of Human Rights (ECtHR) (so-called ‘Institutional European Family Law’).

Organic European/EU Family Law consists of elements of a common family law that have ‘grown’, that is, developed similarly in the European jurisdictions (if speaking of European Family Law) and/or EU Member States (if speaking of EU Family Law).³⁵ That, as outlined above, the law of marriage is hugely divergent between jurisdictions does not rule out the existence of other elements of European Family Law. Moreover, even in the law of marriage, a core of joint elements can be identified (e.g. that a marriage is restricted to two persons; certain prohibited degrees; or that the spouses – at least nominally – are equals) that can be identified as European/EU Family Law.

For the purposes of this volume, and as shown expertly by the preceding chapters, what can be termed ‘Institutional European Family Law’ and specifically ‘Institutional EU Family Law’ are of greater relevance. This ‘Institutional’ Family Law is created through binding family law rules by multilateral agreements or treaties such as the EU Treaties or the European Convention on Human Rights or (as is more often the case) their interpretations by the CJEU or the ECtHR.

As the contributions in this volume have shown, there are undoubtedly growing areas of family law emanating indirectly from EU laws or from CJEU decisions. The driving force behind these is the free movement of persons, the principles of equality and non-discrimination, and the legal competences to regulate cross-border issues through private international law instruments. A typical example for this is the way Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation³⁶ was applied to same-sex couples. In Maruko v Versorgungsanstalt der deutschen Bühnen,³⁷ the surviving partner of a same-sex registered partnership had been denied a survivor’s pension in Germany as the law only extended these benefits to spouses (marriage not being available to same-sex couples at the time). The Court held that this would amount to direct discrimination within the meaning of Council Directive 2000/78/EC, provided that the couples were in comparable situations.³⁸ Even though the Member States were free to legislate on adult relationships (and especially marriage) in principle, they were obliged to do so without discrimination.³⁹ In Römer v Freie und Hansestadt Hamburg,⁴⁰ the Court decided along similar veins holding that receiving a lower supplementary pension benefit because the applicant had been in a registered partnership rather than a marriage was directly discriminatory and, thus, a violation of the Directive. Although pensions and comparable benefits are not what is generally seen as the ‘core’ of family law, these decisions nevertheless accepted a family form other than marriage, at least for some purposes. Admittedly, this result was only reached because the relationship in question resembled that of a heteronormative marital relationship. While this generally seems to be the approach of EU Law,⁴¹ it is highly questionable whether it still is the appropriate yardstick for family relationships. Nevertheless, this recognition of same-sex relationships can be seen as creating an element of Institutional EU Family Law just as, for example, the decision in Coman.⁴² None of the decisions mentioned create a right to same-sex marriage nor the necessity for general recognition of such relationships in the EU. Given the legal and institutional constraints, this has never been a possible outcome. However, these decisions establish elements of an EU Family Law, a minimum standard under which the Member States must not fall, as well as a steppingstone towards full(er) recognition of more diverse family forms in general and same-sex relationships and families in particular.

In addition to the EU Institutions, the ECtHR is probably the most potent source for Institutional European Family Law, given that the EU and all Member States are Contracting States of the Convention. Although decisions based on the ECHR often concern the substantive family law of the Contracting State immediately involved, they nevertheless set a minimum standard for all others. The prime example, and arguably the starting point of European Family Law, is the Marckx decision of 1979 on the legal status of children born out of wedlock.⁴³ As a result of the decision, which held that these children must be treated equally to those born in marriage, numerous European jurisdictions had to change their family laws.⁴⁴

Another example is the decision of Christine Goodwin v United Kingdom, which similarly and powerfully established a minimum standard for all Contracting States, namely that there must be the possibility to change one’s legal gender from the one allocated at birth and to marry under that gender.⁴⁵ This did not only lead to a string of further cases, each of which clarified the legal position of transgender persons,⁴⁶ but also meant that the Contracting States had to adapt their laws in this area.

All of these are just examples, and one could list many more, including parenthood and especially surrogacy,⁴⁷ parental responsibility,⁴⁸ and the right to know one’s origin,⁴⁹ of how elements of European Family Law have been created by the ECtHR.

13.5 Conclusion: An EU/European Family Law for European Families?

A fragmentary European and EU Family Law has begun to develop, creating elements and pockets of family law in very diverse and often unconnected areas. At the heart of these developments, especially in the EU context, there lies the central question which this volume addresses: What is a family?

‘Family’ means different things to different people, and is also likely to mean different things in different legal and social contexts. But that families, whatever form they take, are part of the basic European fabric cannot be denied. It is, therefore, not surprising that organic and institutional elements of European Family Law have begun and continue to grow. For now, most of them are separate little islands; but in the distant future they may grow together and form a more coherent and more recognisable body of European and EU Family Law.

Ultimately, it is to be hoped (to paraphrase the abovementioned statement by Commission President Ursula von der Leyen) that at least in Europe, if you are a family in one country, you are family in every country. Nobody’s family is any less a family just because somebody else’s family also is a family in the eyes of the law. Because love is love, and caring is caring.