European family law at the Ius Commune Conference at Edinburgh

It was impossible for any one person to savour the full richness of contributions on offer at the Ius Commune Conference in Edinburgh on 27 and 28 November. This is a disadvantage of the workshop system adopted. The advantage is that people can have a full discussion of topics of particular interest to them. Spoilt for choice, I decided on the first day to attend the workshop on family law.

The family law workshop was actually more of a law of persons workshop because two of the contributions were on “Statelessness in comparative perspective” (Olivier Vonk, Maastricht) and “Nationality and European citizenship consequences of the independence of a part of a member state” (Guayasen Marrero Gonzales, Maastricht). The latter dealt with questions which were hotly debated during the referendum on Scottish independence. Would some Scottish residents lose their EU citizenship if Scotland voted to leave the UK and hence the EU? The question, for obvious reasons, was addressed by the speaker more from the point of view of Catalonia but the difficulties involved made me profoundly glad that Scotland had voted No in the referendum.

Also at this session there was an interesting presentation by Katharina Boele-Woelki on the Principles of European Family Law. The next volume will be on informal relationships. It will deal with relationships between couples which are not formalised and will exclude (for pragmatic reasons) multiparty relationships and relationships between siblings and parent and child. National reports will be assembled between January and June next year.

The second half of the workshop had an interesting and informative contribution from Marit Tomassen-Van der Lans (Amsterdam) on the use of parenting agreements and similar techniques in the context of divorce in the Netherlands and the USA. It seems that the Dutch law making a parenting agreement (normally) a pre-requisite for divorce is not proving effective in reducing post-divorce conflict. The basic idea of linking child-care arrangements with divorce also came under fire from several contributors to the discussion. The topic of residential co-parenting when parents are living apart was addressed from a comparative law point of view by Natalie Nikolina (Utrecht). Her definition of residential co-parenting was an arrangement which involved at least 30% of the week being spent with one of the two parents. This type of co-parenting arrangement has increased in recent years, more in the Netherlands (27 – 38%) and Belgium (21%) than in the UK (9- 12 % in E & W). Public opinion seems to favour it. A Belgian law of 2006 provides that residential co-parenting must be considered first by the court if one of the parents requests it. Contributions during the discussion showed, however, that there could be concerns over the impact on the child. In practice, such an arrangement would only rarely be appropriate if the parents lived some distance apart and the child was at school.

The most thought-provoking contribution (for me, at least) was by Silvia Pfeiff (Liége/Brussels) on “Human rights and the portability of status in Europe”. She pointed out, by reference to several leading cases, that human rights law (in particular article 8 of the European Convention on Human Rights) could trump the solutions reached by traditional private international law so that a status acquired in fact might have to be recognised even though it would be denied by applying the traditional rules. This was a convincing analysis, which gave due attention to qualifications and limitations. She went further, however, and argued that a human rights approach would actually be easier and better that an approach which began with the traditional rules. I was less sure about this part of the argument, at least if it is to be applied beyond a fairly narrow category of cases involving refusals of recognition by States.

Altogether this was a most stimulating workshop. All the papers were skilfully and impressively delivered.




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