EU Citizens’ Rights – The way forward

960 views
895 views

Published on

Consultation on how to strengthen the rights stemming from Union Citizenship
(Freedom, Justice and Security; Union Citizenship)
“Building a citizen’s Europe”

Published in: News & Politics
0 Comments
0 Likes
Statistics
Notes
  • Be the first to comment

  • Be the first to like this

No Downloads
Views
Total views
960
On SlideShare
0
From Embeds
0
Number of Embeds
3
Actions
Shares
0
Downloads
2
Comments
0
Likes
0
Embeds 0
No embeds

No notes for slide

EU Citizens’ Rights – The way forward

  1. 1. EU Citizens Rights – The way forward Consultation on how to strengthen the rights stemming from Union Citizenship (Freedom, Justice and Security; Union Citizenship) “Building a citizen’s Europe” European Commission Directorate General for Justice, Freedom and Security Unit D2 – Citizenship 46, rue Luxembourg, B-1049, Brussels Belgium JLS-CITIZENSHIP-CONS@ec.europa.euParents Forever Association (identification number in the register #22310333566-52) is a Portuguese NGO that defendsthe rights of the child, especially the one that have their parents separated or divorced.The Parents Forever Association (PFA) works in order to ensure Children and their Parents the regularity, the meaningand a continuous contact of the child with both parents and other members of both families.PFA works to strengthen the existing family ties, even after separation and/or divorce of the parents, througheducation, favouring the family structure and the preservation of the family.PFA is not exclusively a group for women or men. Even less is limited to separated parents.PFA defends the primacy of the best and superior interest of the child, supporting entirely the UN Convention on theRights of the Child and the European Charter of Fundamental Rights of the European Union, and fights for the right ofthe child to have contact with parents and other significant persons. The child and the parents should have the right to obtain and maintain regular contact with each other. Contact should be established between the child and his or her close relatives. Child must be allowed to maintain contact with whom he/she has close personal relations.__________________________Freedom, security and justice are key values that form an integral part of the European model of society.Progress has been comparatively slow in some fields, namely family law.There is some way to go before the Directive on freedom of movement for persons has been fullyimplemented by all Member States. Europe and all Member States, by itself, have positive obligations.The objective has to provide the best possible service to the citizen, with no less regard to Children’scitizenship.Beyond strict legal transposal, implementation should be followed up with practical support measures.A policy of proximity to the citizen has to be done.European Commission has a major challenge now. The new multiannual programme for the next five yearshas to define the priorities. It has to make the benefits of the area of freedom, security and justice moretangible to the ordinary citizen.A Associação “Pais para Sempre” está inscrita junto da Comissão Europeia como representante de interesses com o número de identificação no regist o: 22310333566-52 PAIS PARA SEMPRE – ASSOCIAÇÃO PARA A DEFESA DOS FILHOS DOS PAIS SEPARADOS paisparasempre * parentsforever * parentspourtoujours * genitoripersempre * padresparasiempre * elternfürimmer oudersvooraltijd * foreldraraðeilífu * rodičenavěky * γονείςγιαπάντα * родителидлявсегда * 父母是永远的 * ‫األبد الى والدين‬
  2. 2. A Europe of rights promoting citizens’ rights A Europe of justice making life easier A Europe that protects protecting citizens A Europe of solidarity promoting a more integrated society for the citizen In all this four areas the quality of European legislation, with an effective and appropriate response to citizens’ problems, is of higher importance. The existing body of EU legislation is recent but it is true that it is already large. The ongoing European integration has created also a new challenge for private law: the elaboration of a uniform and harmonized European private law and a truly European legal science. As established in the no. 1, Article 67 of the Treaty on the Functioning of the European Union1 “the Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States.” The law harmonization is desirable and feasible; more, it is an effective need. Due to PFA’s area of work and expertise we are going to consider only five of the key questions in the questionnaire of the Public Consultation – the numbers 1, 2, 3, 4 and 8 – and our reply is the following: 1. What are the main obstacles European Union citizens currently face in the exercise of their rights resulting from Union citizenship? What could be done to address these obstacles? Family law touches upon the very essence of people’s daily lives as no other field of law does. There is little doubt that the absence of uniformity in the areas of private law facilitating economic activities forms an obstacle to the development of the free movement of goods, services and capital. In the same way, the absence of harmonized family law creates an obstacle to the free movement of persons and the creation of 1 Consolidated Version of Treaty on the Functioning of the European Union, Official Journal of the European Union C 83, 30.3.2010A Associação “Pais para Sempre” está inscrita junto da Comissão Europeia como representante de interesses com o número de identificação no regist o: 22310333566-52 PAIS PARA SEMPRE – ASSOCIAÇÃO PARA A DEFESA DOS FILHOS DOS PAIS SEPARADOS paisparasempre * parentsforever * parentspourtoujours * genitoripersempre * padresparasiempre * elternfürimmer oudersvooraltijd * foreldraraðeilífu * rodičenavěky * γονείςγιαπάντα * родителидлявсегда * 父母是永远的 * ‫األبد الى والدين‬
  3. 3. a truly European identity and an integrated European legal space. The large-scale differences between the national legal systems within a Europe without frontiers constitute a serious impediment to attaining a common European identity in the form of a European citizenship. It is generally acknowledged that to date in cross-border situations people cannot rely on the continuity of their family relationships when changing residence. 2 The harmonization of family law will provide an adequate legal basis for the further realization of free movement for Europeans and will greatly contribute to the factual achievement of a Europe without legal borders. Standard contracts between individuals or small businesses should be drawn up. Use of these contracts would be voluntary, but they would be translated into the different languages and serve as a model for the business world. In civil matters, minimum standards need to be established at European level on specific aspects of civil procedural law taking account of the requirements of mutual recognition. Minimum standards also need to be developed in relation to the recognition of decisions on parental responsibility, including those on custody rights. Children of parents of foreign origin, born or growing up in their state of residence, are in the best situation of becoming increasingly familiar with the language(s), habits, customs and culture(s) of their state of residence, which contributes to their integration into that society. That is, one of the reasons, why the child-citizen is so important. 2. In which areas should the rights of citizens be strengthened? The Unions accession to the European Convention on Human Rights – a powerful political symbol, but also an effective guarantor of rights through the European Court of Human Rights – will complete the 2 This has been clearly illustrated by N. Dethloff, ‘Arguments for the Unification and Harmonisation of Family Law in Europe’, in K. Boele-Woelki (ed.), .), Perspectives for the Unification and Harmonisation of Family Law in Europe, 2003, pp. 37-64.A Associação “Pais para Sempre” está inscrita junto da Comissão Europeia como representante de interesses com o número de identificação no regist o: 22310333566-52 PAIS PARA SEMPRE – ASSOCIAÇÃO PARA A DEFESA DOS FILHOS DOS PAIS SEPARADOS paisparasempre * parentsforever * parentspourtoujours * genitoripersempre * padresparasiempre * elternfürimmer oudersvooraltijd * foreldraraðeilífu * rodičenavěky * γονείςγιαπάντα * родителидлявсегда * 父母是永远的 * ‫األبد الى والدين‬
  4. 4. system of protection and the respect for the individual and for human dignity that is the core value in the area of freedom, security and justice. The national human rights structures must be clearly mandated to address discrimination on grounds of sexual orientation or gender identity; in particular, they should be able to make recommendations on legislation and policies, raise awareness amongst the general public, as well as – as far as national law so provides – examine individual complaints regarding both the private and public sector and initiate or participate in court proceedings. Measures has to be taken to ensure that legal provisions in national law prohibiting or preventing discrimination also protect against discrimination on multiple grounds, including on grounds of gender identity or sexual orientation; national human rights structures should have a broad mandate to enable them to tackle such issues. Forging a common law culture In this matter, besides de law itself, the judges are of major importance. And we do know that national judges don’t pay much attention and importance to European “Law”. If citizens are gradually to come to regard Europe as the natural theatre of their lives, there will have to be greater mutual trust. To achieve this goal, all the professionals concerned must intensify the exchange of experiences and good practice, particularly on ethical issues. Joint training courses and exercises will also be needed. Ambitious targets must be set here, e.g. to train Judges, prosecutors, lawyers, police, social workers, psychologists, immigration officials and all other professionals working with children and families. They all should receive ongoing and in-depth multidisciplinary training on the specific rights and needs of children of different age groups, as well as on proceedings that are adapted to children. These professionals should also be trained in communicating with children at all ages and stages of development, including children with special needs, disabilities and/or learning difficulties.A Associação “Pais para Sempre” está inscrita junto da Comissão Europeia como representante de interesses com o número de identificação no regist o: 22310333566-52 PAIS PARA SEMPRE – ASSOCIAÇÃO PARA A DEFESA DOS FILHOS DOS PAIS SEPARADOS paisparasempre * parentsforever * parentspourtoujours * genitoripersempre * padresparasiempre * elternfürimmer oudersvooraltijd * foreldraraðeilífu * rodičenavěky * γονείςγιαπάντα * родителидлявсегда * 父母是永远的 * ‫األبد الى والدين‬
  5. 5. The European’s dimension of family law - unification and harmonization Many developments in the field of European private international law and international procedural law in matters of family law and inheritance law have taken place 3. Since the beginning of the 1990s European comparative family law conferences have been organized in order to report on topical issues in national European family law systems. In important fields of (international) family and succession law the Council of Europe4 and the Hague Conference on Private International Law5 have drafted conventions, resolutions and principles, which today form part of the body of knowledge common to all lawyers. In addition, the decisions of the European Court of Human Rights6 in Strasbourg provide guidelines for the family and inheritance law of the European jurisdictions. Moreover, in the discussion concerning the possible harmonization of the law, these decisions play a crucial role. On top of this, the European Court of Justice in Luxembourg has decided that the communitarian freedoms, established by the EC Treaty, are also applicable in family law. Following these developments, the comparative legal literature is increasingly drawing attention to the possible unification and harmonization of family and succession law in Europe. However, because it depends on political choices7, any harmonisation debate should not distract from the main task which is still to develop rules which serve most effectively the best interests of children. 3 Regulation (EC) no. 1347/2000 on Jurisdiction and Recognition and Enforcement of Judgments in Matrimonial Matters and in Matters of Parental Responsibility for Children of Both Spouses (Brussels II) as revised by Regulation (EC) no. 2201/2003 Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and the Matters of Parental Responsibility, Repealing Regulation (EC) no. 1347/2000, OJ L 338/1, 23.12.2003, effective as of 1 March 2005. See also the Green Papers on maintenance obligations (COM (2004) 254), on th e applicable law and jurisdiction in divorce matters (COM (2005) 82) and on succession and wills (COM (2005) 65. 4 See ‘Family law and children’s rights’ at http://www.coe.int, e.g., Recommendation Rec(2006)19 of the Committee of Ministers to member states on policy to support positive parenting (Adopted by the Committee of Ministers on 13 December 2006 at the 983rd meeting of the Ministers’ Deputies) https://wcd.coe.int/ViewDoc.jsp?id=1073507, Recommendation CM/Rec(2009)13 of the Committee of Ministers to member states on the nationality of children (Adopted by the Committee of Ministers on 9 December 2009 at the 1073rd meeting of the Ministers Deputies) https://wcd.coe.int/ViewDoc.jsp?id=1563529, Recommendation CM/Rec(2010)5 of the Committee of Ministers to member states on measures to combat discrimination on grounds of sexual orientation or gender identity (Adopted by the Committee of Ministers on 31 March 2010 at the 1081st meeting of the Ministers’ Deputies) https://wcd.coe.int/ViewDoc.jsp?id=1606669, Draft Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice http://www.coe.int/t/dghl/standardsetting/family/CJ-S-CH%20%20(2010)%203%20E%20FINAL%20- %204TH%20DRAFT%20COE%20GUIDELINES%20ON%20CHILD-FRIENDLY%20JUSTICE.pdf. 5 See http://www.hcch.net. 6 Relevant Case Law of the European Court of Human Rights: (latest judgments (non-exhaustive)) Gas and Dubois v. France, September 2009 (Decision in French, Requête n.º 25951/07), Menendez Garcia v. Spain, May 2009, (Decision in French, Requête n.º 21046/07), Chapin and Charpentier v. France, April 2009 (application No. 40183/07), Anakomba Yula v. Belgium, March 2009 (application no. 45413/07), Varnava and others v. Turkey, November 2008 (application nos. 16064/90 and 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90, 16073/90), E.B. v. France, January 2008 (application no. 43546/02), Kearns v. France, January 2008 (application no. 35991/04), Wagner and J.M.W.L. v. Luxembourg, June 2007 (application no. 76240/01). 7 Article 81 of the Consolidated Version of Treaty on the Functioning of the European Union, Official Journal of the European Union C 83, 30.3.2010 under the Chapter 3 with the title Judicial Cooperation in Civil Matters (ex Article 65 TEC).A Associação “Pais para Sempre” está inscrita junto da Comissão Europeia como representante de interesses com o número de identificação no regist o: 22310333566-52 PAIS PARA SEMPRE – ASSOCIAÇÃO PARA A DEFESA DOS FILHOS DOS PAIS SEPARADOS paisparasempre * parentsforever * parentspourtoujours * genitoripersempre * padresparasiempre * elternfürimmer oudersvooraltijd * foreldraraðeilífu * rodičenavěky * γονείςγιαπάντα * родителидлявсегда * 父母是永远的 * ‫األبد الى والدين‬
  6. 6. The rights of the child – i.e. the principle of the primacy of the interests of the child, the childs right to life, survival and development, non-discrimination and respect for the childs opinions – as proclaimed in the Charter and the United Nations Convention on the Rights of the Child, potentially concern all EU policies. They must be systematically taken into account. Children in particularly vulnerable situations, including those of separated or divorced parents, need to receive special attention, because a clash of interests between the child’s interests and those of a holder of parental responsibilities occur in many different types of situations. For instance, “parental responsibilities”, in European Union has to mean “joint responsibilities”. It is so across European Union if the parents are married it is generally accepted that parents have ipso iure joint custody. Nevertheless, if the parents are not married, in some legal systems the basic rule is still that the mother has sole parental responsibilities; the father can obtain parental responsibilities only under certain conditions. That is, obviously, an unequal treatment of the parents due of their gender. If the mother or the father are unsuitable to exercise parental responsibilities there must be a decision to this effect by the competent authority. Always regarding the perspective of the child-citizen, The European Commission and European Union, has to deal with the issues concerning the exercise of “parental responsibilities” remembering that they need to be solved when questions on the use of parental powers and/or performance of the duties by the holders of parental responsibilities arise. As the Committee of Ministers of The Council of Europe stresses on its Recommendation Rec(2006)19 to member states on policy to support positive parenting, “in the case of separated parents, support policies should be aimed in particular at maintaining links between children and both their parents, unless this is contrary to the child’s best interests. Access to professional counselling should be provided and attention should be paid to cases where the parents have different cultural backgrounds or are of different nationalities”. European Union has positive obligations8 in relation to European Citizens. 8 Case Law of the European Court of Human Rights: Reigado Ramos v. Portugal (no. 73229/01) Violation of Article 8, Press release issued by the Registrar, 22.11.2005, (The judgment is available only in French) The applicant alleged that the fact that his right of access had not been enforced amounted to a violation of Article 8 (right to respect for private and family life). He complained of the inability of the Portuguese authorities to enforce his right, and of a lack of diligence on their part.A Associação “Pais para Sempre” está inscrita junto da Comissão Europeia como representante de interesses com o número de identificação no regist o: 22310333566-52 PAIS PARA SEMPRE – ASSOCIAÇÃO PARA A DEFESA DOS FILHOS DOS PAIS SEPARADOS paisparasempre * parentsforever * parentspourtoujours * genitoripersempre * padresparasiempre * elternfürimmer oudersvooraltijd * foreldraraðeilífu * rodičenavěky * γονείςγιαπάντα * родителидлявсегда * 父母是永远的 * ‫األبد الى والدين‬
  7. 7. For citizens it is not enough to have written rights. It has to be made real. The European Commission has the challenge to take adequate and sufficient actions to enforce the citizen’s formal (and theoretical) rights. Also there is a major need to protect children against all kinds of abuse, namely psychological and sexual abuse. That is an important element in the strategy of childrens rights, because, as far as we know, in Europe from 10 to 20% of children are at risk of sexual abuse. It is known that when parents separate from each other the dispute make them, very often, to use accusations of abuse of the child against the other parent. In this situation the child interest is that the evaluation has to be done quickly; verified the veracity of the accusation, the offender must be convicted; if the accusation is not true, then the accuser - now found himself/herself to be the abuser, with the charge of infringing the rights of your child - has to be condemned. Twenty percent of children are at risk of sexual abuse; a must bigger percentage of children are at risk of psychological abuse. 3. What are the main obstacles faced by European Union citizens when moving to or residing in another EU country? What could be done to remove these obstacles and enhance this right? In order to guarantee the free movement of persons in Europe the EU Commission should take appropriate steps to avoid a loss of legal position, which, for instance, can arise with a change of residence if the connecting factor is not immutable. The same rule shall be applied to the exercise of parental responsibilities. For instance, if parental responsibilities are exercised jointly and one of the holders of parental responsibilities wishes to change the child’s residence within or outside the jurisdiction, he or she should The lack of cooperation by one of the child’s parents did not dispense the Portuguese authorities from their obligation to do everything possible to allow the family ties to be maintained. In the circumstances, the Court considered that Portugal had not taken adequate and sufficient action to enforce the applicant’s right of access, thereby infringing his right to respect for his family life. It therefore held, by six votes to one, that there had been a violation of Article 8. See http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=801677&portal=hbkm&source=externalbydocnumber&table=F69A27F D 8FB86142BF01C1166DEA398649A Associação “Pais para Sempre” está inscrita junto da Comissão Europeia como representante de interesses com o número de identificação no regist o: 22310333566-52 PAIS PARA SEMPRE – ASSOCIAÇÃO PARA A DEFESA DOS FILHOS DOS PAIS SEPARADOS paisparasempre * parentsforever * parentspourtoujours * genitoripersempre * padresparasiempre * elternfürimmer oudersvooraltijd * foreldraraðeilífu * rodičenavěky * γονείςγιαπάντα * родителидлявсегда * 父母是永远的 * ‫األبد الى والدين‬
  8. 8. inform the other holder of parental responsibilities in advance. If the other holder of parental responsibilities objects to the change of the child’s residence, each of them may apply to the competent authority for a decision. The competent authority should take into consideration factors such as, the age and opinion of the child, the right of the child to maintain personal relationships with the other holders of parental responsibilities, the ability and willingness of the holders of parental responsibilities to cooperate with each other, the personal situation of the holders of personal responsibilities, the geographical distance and accessibility and the free movement of persons. The European Union and the competent authority have also to have in consideration that the right of the child must prevail, including the rights to her/his personal relations9. In that case, and in order to improve citizens’ rights (adults/parents and children/sons and daughters), namely those connected to free movement within Europe and to ensure certain aspects of the right of transfrontier contact, the child must receive some support in order to make real the enjoyment of his/her personal relations. It is true that the “best interests of the child” is a changing notion, dependent not only on the prevailing values in the society in question as regards children, but also on the individual child and his or her present situation such as age, maturity, personality, needs, abilities, health, etc.. So, the right’s of the child as the maintenance of personal relationships with both parents, his or her relatives and persons with whom the child has close personal relations must me ensured and granted always from the child’s perspective, regarding to his or her present and future interests and needs even when moving or residing in another European Union country. The best interests of the child have to be the primary consideration. The holders of parental responsibilities´ agreements have to take in consideration the child herself/himself. It applies not only to the assessment regarding whether the child should be informed, consulted and given the opportunity to express his or her opinion, but also to what weight should be given to the views expressed by the child. In the latter respect the child’s capability of forming his or her own views is, implicitly, of relevance. The older and more mature the child, the greater is the weight to be attached to the views expressed by that child. 9 Convention on Contact concerning Children, CETS No.: 192, open for signature by the member States of the Council of Europe, the non-member States which have participated in its elaboration and the European Union, in Strasbourg, on 15 May 2003. Entry into force : 1 September 2005; according to the case-law of the European Court of Human Rights "respect for a family life (…) implies an obligation for the State to act in a manner calculated to allow these ties to develop normally." (Eur. Court HR, Scozzari and Giunta v. Italy of 13 July 2000, A, par. 22 1)A Associação “Pais para Sempre” está inscrita junto da Comissão Europeia como representante de interesses com o número de identificação no regist o: 22310333566-52 PAIS PARA SEMPRE – ASSOCIAÇÃO PARA A DEFESA DOS FILHOS DOS PAIS SEPARADOS paisparasempre * parentsforever * parentspourtoujours * genitoripersempre * padresparasiempre * elternfürimmer oudersvooraltijd * foreldraraðeilífu * rodičenavěky * γονείςγιαπάντα * родителидлявсегда * 父母是永远的 * ‫األبد الى والدين‬
  9. 9. 4. What could be done to improve the recognition of documents relating to birth, marriage, death, etc between Member States, and to reduce formalities and costs? It has to be established a standard European format for specific documents as, for e.g., the civil status records, in order to facilitate mobility of European Citizens inside European Union. The International Commission on Civil Status (ICCS) has already some work done on this subject. As a matter of fact, ICCS has 32 Conventions that creates a framework on civil status records, procedures and civil status documents. For instance, the ICCS Convention No. 16 that is a Convention on the issue of multilingual extracts from civil status records (signed at Vienna on 8 September 1976), creates an international form. It has already entry on force in 12 Member States of the European Union (Austria, Belgium, France, Germany, Italy, Lithuania, Luxembourg, The Netherlands, Poland, Portugal, Slovenia and Spain), 3 Candidates Countries to European Union’s Membership (Croatia, Former Yugoslav Republic of Macedonia and Turkey) and 5 other European Countries (Bosnia and Herzegovina, Moldova, Montenegro, Serbia and Switzerland). In a more wide vision, for the good future of European citizenship, the creation of a European’s General Register Officer network (with an online access between all local Registers) will allow the European Citizen to have easy access to his/her documents wherever she/he is. A Citizen’s European Card may also be of some help in making feel each citizen to belong to European Union. The Member States felt that something has to be done rapidly in this field. The recently use for the first time of the enhanced cooperation mechanism contained in the EU treaties making divorce easier in 14 European countries is a strong indicator of that. But this use will cause asymmetries; the citizens of those 14 EU Member States may feel that they are first class citizens and the citizens of the remaining 13 as European citizens of second class. The Commission, the Council and the European Parliament must not allow that, on behalf of all European citizens and for the sake of European Union.A Associação “Pais para Sempre” está inscrita junto da Comissão Europeia como representante de interesses com o número de identificação no regist o: 22310333566-52 PAIS PARA SEMPRE – ASSOCIAÇÃO PARA A DEFESA DOS FILHOS DOS PAIS SEPARADOS paisparasempre * parentsforever * parentspourtoujours * genitoripersempre * padresparasiempre * elternfürimmer oudersvooraltijd * foreldraraðeilífu * rodičenavěky * γονείςγιαπάντα * родителидлявсегда * 父母是永远的 * ‫األبد الى والدين‬
  10. 10. The registration of birth should also be free of charge and be performed without delay, even if the period within which the birth should have been declared has already expired. And in order to safeguard the right of every human being (child) to a nationality the Member States shall register the birth of all children born on their territory, even if they are born to a foreign parent with an irregular immigration status or if the parents are unknown. 8. What could be done to increase voters participation in European Parliament elections? Citizens don’t have much consideration on politics. There is a strong need to forge a common European culture. It starts at home. But it is much easier to make it start at school. Forging a common culture A proper education forges a good citizenship culture. Formal education in all Member States has to have in their teaching curricula, as soon as the first grade, specific matters concerning citizenship, rights, responsibilities and gender education, just to enumerate some of the most important. Unfortunately education systems in Europe continue to sustain stereotypes, namely gender stereotypes. Gender education, especially if it addresses both girls and boys, can be a positive force for creating gender equality in modern society. It seeks to change the roles that girls and boys and women and men play in private and public life. By reducing gender stereotypes, gender education assists children in building a genuine civic equality where males and females live in relationships of cooperation and in mutual respect – a much better citizenship, we may say. An important function of gender education is to distinguish between facts and beliefs or opinions. By analysing stories or their own activities, children can quickly accept as normal that girls can be boyish and boys can be sensitive and vulnerable. All children need to accept themselves as complex and unique individuals with a wide range of characteristics. Stereotypes and rigid gender expectations can hinder individual development and the realisation of the full potential of both girls and boys.A Associação “Pais para Sempre” está inscrita junto da Comissão Europeia como representante de interesses com o número de identificação no regist o: 22310333566-52 PAIS PARA SEMPRE – ASSOCIAÇÃO PARA A DEFESA DOS FILHOS DOS PAIS SEPARADOS paisparasempre * parentsforever * parentspourtoujours * genitoripersempre * padresparasiempre * elternfürimmer oudersvooraltijd * foreldraraðeilífu * rodičenavěky * γονείςγιαπάντα * родителидлявсегда * 父母是永远的 * ‫األبد الى والدين‬
  11. 11. Gender education starts with building gender awareness. This means recognizing the negative impacts of gender stereotypes and addressing the inequalities that arise from them10. The outcome of gender education for girls is greater self-confidence, assertiveness, independence and engagement in the public sphere. The outcome for boys is overcoming fear of failure, learning to be less aggressive, becoming more sociable and responsible and engaging more in the private sphere. To be effective at gender education, educators must recognize their own gender stereotypes and reflect on their whether their teaching methods, language and interaction with boys and girls reflect the gender equality they are striving to convey. Educators must avoid gender stereotypical activities from early childhood and ensure that girls and boys have the same opportunities for participation and interaction in any activity. Girls should be encouraged to compete in both academics and sports while boys should participate in caring activities. Both sexes should be encouraged to participate in all kinds of activities, e.g. choirs, drama and dance, woodwork, cooking, hiking, and chess. Girls should receive positive feedback on their achievements, and boys for being caring and showing solidarity. Gender education is an ongoing process that cannot be limited to specific educational activities. Another important aim of gender education is to help children recognize the social value of traditional female activities, such as motherhood, and characteristics such as caring, attention, cooperation and tolerance. This recognition can lead to genuine partnerships between men and women, which is a key goal of gender education. In this way, children learn that the different contributions of men and women to family and society are equally important and that both men and women have equal rights and responsibilities. Stereotypes persist shamefully in textbooks and now are also at computer games. Twenty five years ago the Council and the Ministers for Education, meeting within the Council of 3 June 10 Making Rights a Reality: Gender awareness workshops, Amnesty International, 2004, p. 61A Associação “Pais para Sempre” está inscrita junto da Comissão Europeia como representante de interesses com o número de identificação no regist o: 22310333566-52 PAIS PARA SEMPRE – ASSOCIAÇÃO PARA A DEFESA DOS FILHOS DOS PAIS SEPARADOS paisparasempre * parentsforever * parentspourtoujours * genitoripersempre * padresparasiempre * elternfürimmer oudersvooraltijd * foreldraraðeilífu * rodičenavěky * γονείςγιαπάντα * родителидлявсегда * 父母是永远的 * ‫األبد الى والدين‬
  12. 12. 1985, adopt a Resolution11 containing an action programme on equal opportunities for girls and boys in education. It stressed that “education and vocational training are among the prerequisites for achieving equal opportunities for men and women in working life and whereas education should therefore contribute to eradicating stereotypes, encourage acceptance of the principles of fair sharing of family and occupational responsibilities and prepare young people adequately for working life”. At the ten points of the action programme included within the Resolution can be read: “encouraging the eradication of sex stereotyping”, “eradicating persistent stereotypes from school textbooks, teaching material in general, assessment materials and guidance material”, “reviewing the text … with a view to eradicating discrimination and stereotypes”, “encouraging children to develop a positive perception of equality of the sexes” and “motivate girls and boys to make non-traditional choices and to follow courses leading to qualifications so that they may have access to a far more diversified range of jobs”. Unfortunately it is still absolutely up to date; it seems we have lost 25 years and several generations of opportunity. We have to eliminate stereotypes from textbooks, toys, video and computer games, the internet and the new information and communications technologies (ICTs), and from advertising through different types of media, messages which are contrary to human dignity and which convey gender stereotypes. The media plays a major role in creating and perpetuating gender stereotypes. We Europeans need to challenge traditional gender roles in order to achieve gender equality. It has to be conducted by continuous training for and in collaboration with media professionals, and awareness training for society on the negative effects of any kind of stereotypes, including, and specially, those related to gender. Education, without neglected the needed attention to historic developments, future trends and sociological aspects has to take into due account the over-riding interests of the child. So, the right to education has to be effectively enjoyed without discrimination on grounds of gender identity or sexual orientation; this includes, in particular, safeguarding the right of children and youth to education in a safe environment, free 11 Resolution of the Council and of the Ministers for Education, meeting within the Council, of 3 June 1985 containing an action programme on equal opportunities for girls and boys in education (85/C 166/01) Official Journal C 166 , 05/07/1985 P. 0001 – 0004A Associação “Pais para Sempre” está inscrita junto da Comissão Europeia como representante de interesses com o número de identificação no regist o: 22310333566-52 PAIS PARA SEMPRE – ASSOCIAÇÃO PARA A DEFESA DOS FILHOS DOS PAIS SEPARADOS paisparasempre * parentsforever * parentspourtoujours * genitoripersempre * padresparasiempre * elternfürimmer oudersvooraltijd * foreldraraðeilífu * rodičenavěky * γονείςγιαπάντα * родителидлявсегда * 父母是永远的 * ‫األبد الى والدين‬
  13. 13. ______________________________ As we stressed above, in our opinion, a law unification and harmonization that, without neglected the needed attention to historic developments, future trends and sociological aspects, but taking in major consideration the children’s rights, is a major need and the path for a better Europe. You may find in the next pages, as Appendix, the Principles regarding Parental Responsibilities drafted by the Commission on European Family Law, that we do agree, are a good frame of reference in this specific matter.A Associação “Pais para Sempre” está inscrita junto da Comissão Europeia como representante de interesses com o número de identificação no regist o: 22310333566-52 PAIS PARA SEMPRE – ASSOCIAÇÃO PARA A DEFESA DOS FILHOS DOS PAIS SEPARADOS paisparasempre * parentsforever * parentspourtoujours * genitoripersempre * padresparasiempre * elternfürimmer oudersvooraltijd * foreldraraðeilífu * rodičenavěky * γονείςγιαπάντα * родителидлявсегда * 父母是永远的 * ‫األبد الى والدين‬
  14. 14. APPENDIX Principles of European Family Law Regarding Parental Responsibilities 1 The Commission on European Family Law (CEFL) The CEFL Principles regarding Parental Responsibilities - a comprehensive and original set of rules based on respect for the rights of the child, non-discrimination and, as far as possible, on the self-determination of the parents and other holders of parental responsibilities - try to express what seems to be the modern common core of the international and European instruments and the legal systems under review and suggesting which is “the best”, the more “functional” or the more “efficient” rule. Indirectly, the best interests of the child’s content is developed in all the Principles, as these aim to materialize what constitutes the child’s best interests in different kinds of situations. Because the CEFL Principles regarding Parental Responsibilities have been drafted along the framework built on the international obligations, they are a good frame of reference and a source of inspiration for legislatures in their quest to modernise their family laws and are aimed at contributing to the harmonisation of family law in Europe. They can thus be used as a frame of reference. Preamble Recognising that, notwithstanding the existing diversities of national family law systems, there is nevertheless a growing convergence of laws; Recognising that the free movement of persons within Europe is hindered by the remaining differences; Desiring to contribute to common European values regarding the child’s rights and welfare; Desiring to contribute to the harmonisation of family law in Europe and to further facilitate the free movement of persons within Europe; The Commission on European Family Law recommends the following Principles: Chapter I: Definitions Principle 1 Concept of parental responsibilities Parental responsibilities are a collection of rights and duties aimed at promoting and safeguarding the welfare of the child. They encompass in particular: (a) care, protection and education; (b) maintenance of personal relationships; (c) determination of residence; (d) administration of property, and (e) legalt representation. 1 © Commission on European Family Law (CEFL) http://www.ceflonline.net/Reports/Principles%20PR%20English.pdf Secretariat of the CEFL, Molengraaff Institute for Private Law, Nobelstraat 2a, 3512 EN Utrecht, The Netherlands. | Tel: +31 30 253 7154 | Fax: +31 30 253 7203 | E-mail:cefl@law.uu.nlA Associação “Pais para Sempre” está inscrita junto da Comissão Europeia como representante de interesses com o número de identificação no regist o: 22310333566-52 PAIS PARA SEMPRE – ASSOCIAÇÃO PARA A DEFESA DOS FILHOS DOS PAIS SEPARADOS paisparasempre * parentsforever * parentspourtoujours * genitoripersempre * padresparasiempre * elternfürimmer oudersvooraltijd * foreldraraðeilífu * rodičenavěky * γονείςγιαπάντα * родителидлявсегда * 父母是永远的 * ‫األبد الى والدين‬
  15. 15. Principle 2 Holder of parental responsibilities (1) A holder of parental responsibilities is any person having the rights and duties listed in Principle 3:1 either in whole or in part. (2) Subject to the following Principles, holders of parental responsibilities are: (a) the child’s parents, as well as (b) persons other than the child’s parents having parental responsibilities in addition to or instead of the parents. Chapter II: Rights of the child Principle 3 Best interests of the child In all matters concerning parental responsibilities the best interests of the child should be the primary consideration. Principle 4 Autonomy of the child The child’s autonomy should be respected in accordance with the developing ability and need of the child to act independently. Principle 5 Non-discrimination of the child Children should not be discriminated on grounds such as sex, race, colour, language, religion, political or other opinion, national, ethnic or social origin, sexual orientation, disability, property, birth or other status, irrespective of whether these grounds refer to the child or to the holders of parental responsibilities. Principle 6 Child’s right to be heard Having regard to the child’s age and maturity, the child should have the right to be informed, consulted and to express his or her opinion in all matters concerning the child, with due weight given to the views expressed by him or her. Principle 7 Conflict of interests The interests of the child should be protected whenever they may be in conflict with the interests of the holders of parental responsibilities. Chapter III: Parental responsibilities of parents and third persons Principle 8 Parents Parents, whose legal parentage has been established, should have parental responsibilities for the child.A Associação “Pais para Sempre” está inscrita junto da Comissão Europeia como representante de interesses com o número de identificação no regist o: 22310333566-52 PAIS PARA SEMPRE – ASSOCIAÇÃO PARA A DEFESA DOS FILHOS DOS PAIS SEPARADOS paisparasempre * parentsforever * parentspourtoujours * genitoripersempre * padresparasiempre * elternfürimmer oudersvooraltijd * foreldraraðeilífu * rodičenavěky * γονείςγιαπάντα * родителидлявсегда * 父母是永远的 * ‫األبد الى والدين‬
  16. 16. Principle 9 Third persons Parental responsibilities may in whole or in part also be attributed to a person other than a parent. Principle 10 Effect of dissolution and separation Parental responsibilities should neither be affected by the dissolution or annulment of the marriage or other formal relationship nor by the legal or factual separation between the parents. Chapter IV: Exercise of parental responsibilities Section A: Parents Principle 11 Joint exercise Parents having parental responsibilities should have an equal right and duty to exercise such responsibilities and whenever possible they should exercise them jointly. Principle 12 Daily matters, important and urgent decisions (1) Parents having joint parental responsibilities should have the right to act alone with respect to daily matters. (2) Important decisions concerning matters such as education, medical treatment, the child’s residence, or the administration of his or her property should be taken jointly. In urgent cases a parent should have the right to act alone. The other parent should be informed without undue delay. Principle 13 Agreement on exercise (1) Subject to the best interests of the child, parents having joint parental responsibilities may agree on the exercise of parental responsibilities. (2) The competent authority may scrutinize the agreement. Principle 14 Disagreement on exercise (1) Where parents having joint parental responsibilities cannot agree on an important matter they may apply to the competent authority. (2) The competent authority should promote agreement between the parents. (3) Where agreement cannot be reached the competent authority should divide the exercise of parental responsibilities between the parents or decide the dispute. Principle 15 Sole exercise upon agreement or decision Subject to the best interests of the child a parent may exercise parental responsibilities alone (a) upon agreement between the parents according to Principle 3:13, or (b) upon a decision of the competent authority.A Associação “Pais para Sempre” está inscrita junto da Comissão Europeia como representante de interesses com o número de identificação no regist o: 22310333566-52 PAIS PARA SEMPRE – ASSOCIAÇÃO PARA A DEFESA DOS FILHOS DOS PAIS SEPARADOS paisparasempre * parentsforever * parentspourtoujours * genitoripersempre * padresparasiempre * elternfürimmer oudersvooraltijd * foreldraraðeilífu * rodičenavěky * γονείςγιαπάντα * родителидлявсегда * 父母是永远的 * ‫األبد الى والدين‬
  17. 17. Principle 16 Sole exercise by one parent If only one parent has parental responsibilities he or she should exercise them alone. Section B: Third persons Principle 17 Exercise in addition to or instead of the parents A person other than a parent may exercise some or all parental responsibilities in addition to or instead of the parents. Principle 18 Decisions in daily matters The parent’s partner living with the child may take part in decisions with respect to daily matters unless the other parent having parental responsibilities objects. Chapter V: Content of parental responsibilities Section A: The child‘s person and property Principle 19 Care, protection and education (1) The holders of parental responsibilities should provide the child with care, protection and education in accordance with the child’s distinctive character and developmental needs. (2) The child should not be subjected to corporal punishment or any other humiliating treatment. Principle 20 Residence (1) If parental responsibilities are exercised jointly the holders of parental responsibilities who are living apart should agree upon with whom the child resides. (2) The child may reside on an alternate basis with the holders of parental responsibilities upon either an agreement approved by a competent authority or a decision by a competent authority. The competent authority should take into consideration factors such as: (a) the age and opinion of the child; (b) the ability and willingness of the holders of parental responsibilities to cooperate with each other in matters concerning the child, as well as their personal situation; (c) the distance between the residences of the holders of the parental responsibilities and to the child’s school.A Associação “Pais para Sempre” está inscrita junto da Comissão Europeia como representante de interesses com o número de identificação no regist o: 22310333566-52 PAIS PARA SEMPRE – ASSOCIAÇÃO PARA A DEFESA DOS FILHOS DOS PAIS SEPARADOS paisparasempre * parentsforever * parentspourtoujours * genitoripersempre * padresparasiempre * elternfürimmer oudersvooraltijd * foreldraraðeilífu * rodičenavěky * γονείςγιαπάντα * родителидлявсегда * 父母是永远的 * ‫األبد الى والدين‬
  18. 18. Principle 21 Relocation (1) If parental responsibilities are exercised jointly and one of the holders of parental responsibilities wishes to change the child’s residence within or outside the jurisdiction, he or she should inform the other holder of parental responsibilities thereof in advance. (2) If the other holder of parental responsibilities objects to the change of the child’s residence, each of them may apply to the competent authority for a decision. (3) The competent authority should take into consideration factors such as: (a) the age and opinion of the child; (b) the right of the child to maintain personal relationships with the other holders of parental responsibilities; (c) the ability and willingness of the holders of parental responsibilities to cooperate with each other; (d) the personal situation of the holders of personal responsibilities; (e) the geographical distance and accessibility; (f) the free movement of persons. Principle 22 Administration of the child’s property (1) The holders of parental responsibilities should administer the child’s property with due care and diligence in order to preserve and where possible increase the value of the property. (2) In administering the child’s property the holders of parental responsibilities should not make gifts unless the gifts are deemed to be made under a moral obligation. (3) The income derived from the child’s property which is not needed for the proper management of the property or for the maintenance and education of the child may, where necessary, be used for the needs of the family. Principle 23 Restrictions (1) The holders of parental responsibilities should not administer property acquired by a child through a testamentary disposition or a gift, if the testator or the donor so instructed. (2) Similarly the earnings by the child should not be administered by the holders of parental responsibilities unless the child is not of sufficient age and maturity to decide himself or herself. (3) Where transactions can have significant financial consequences for the child the authorisation of the competent authority should be necessary. Principle 24 Legal representation (1) The holders of parental responsibilities should legally represent the child in matters concerning the child’s person or property. (2) Legal representation should not take place where there is a conflict of interest between the child and the holders of parental responsibilities. (3) Having regard to the child’s age and maturity, the child should have the right to self-representation in legal proceedings concerning himself or herself.A Associação “Pais para Sempre” está inscrita junto da Comissão Europeia como representante de interesses com o número de identificação no regist o: 22310333566-52 PAIS PARA SEMPRE – ASSOCIAÇÃO PARA A DEFESA DOS FILHOS DOS PAIS SEPARADOS paisparasempre * parentsforever * parentspourtoujours * genitoripersempre * padresparasiempre * elternfürimmer oudersvooraltijd * foreldraraðeilífu * rodičenavěky * γονείςγιαπάντα * родителидлявсегда * 父母是永远的 * ‫األبد الى والدين‬
  19. 19. Section B: Maintenance of personal relationships Principle 25 Contact with parents and other persons (1) The child and the parents should have the right to obtain and maintain regular contact with each other. (2) Contact should be established between the child and his or her close relatives. (3) Contact may be established between the child and persons with whom the child has close personal relations. Principle 26 Content of contact (1) Contact comprises the child staying for a limited period of time with or meeting a parent or person other than a parent with whom he or she is not usually living; and any form of communication between the child and such person. (2) Such contact should be in the best interests of the child. Principle 27 Agreement (1) Subject to the best interests of the child, the parents and the other persons identified under Principle 3:25(2) and (3) may agree on contact. (2) The competent authority may scrutinize the agreement. Principle 28 Restrictions Contact may be restricted, terminated or made subject to conditions by the competent authority if the best interests of the child so require. Principle 29 Information to parents A parent should have the right to be informed about matters concerning the personal situation of the child. Chapter VI: Termination of parental responsibilities Principle 30 Termination (1) Parental responsibilities should be terminated in the case of the child: (a) reaching majority; (b) entering into a marriage or registered partnership; (c) being adopted; (d) dying. (2) If a parent’s partner adopts the child of the parent the parental responsibilities in relation to the other parent should be terminated.A Associação “Pais para Sempre” está inscrita junto da Comissão Europeia como representante de interesses com o número de identificação no regist o: 22310333566-52 PAIS PARA SEMPRE – ASSOCIAÇÃO PARA A DEFESA DOS FILHOS DOS PAIS SEPARADOS paisparasempre * parentsforever * parentspourtoujours * genitoripersempre * padresparasiempre * elternfürimmer oudersvooraltijd * foreldraraðeilífu * rodičenavěky * γονείςγιαπάντα * родителидлявсегда * 父母是永远的 * ‫األبد الى والدين‬
  20. 20. Principle 31 Death of the parents (1) If parents have joint parental responsibilities and one of them dies the parental responsibilities should belong to the surviving parent. (2) If a parent having sole parental responsibilities dies, responsibilities should be attributed to the surviving parent or a third person upon a decision by the competent authority. (3) On the death of both parents, of whom at least one parent had parental responsibilities, the competent authority should take protective measures in respect of the person and the property of the child. Chapter VII: Discharge and restoration of parental responsibilities Principle 32 Discharge of parental responsibilities The competent authority should discharge the holder of parental responsibilities, wholly or in part, where his or her behaviour or neglect causes a serious risk to the person or the property of the child Principle 33 Request for discharge of parental responsibilities (1) The discharge of parental responsibilities may be requested by: (a) any parent having parental responsibilities; (b) the child, and (c) any institution protecting the interests of the child. (2) The competent authority may also order the discharge of parental responsibilities of its own motion. Principle 34 Restoration of parental responsibilities Having regard to the best interests of the child, the competent authority may restore parental responsibilities if the circumstances that led to the discharge no longer exist. Chapter VIII: Procedure Principle 35 Competent authority (1) All decisions on parental responsibilities should be taken by the competent authority which can either be a judicial or an administrative body. (2) Where necessary, the competent authority should appoint any suitable person or body to investigate the child’s circumstances. Principle 36 Alternative dispute resolution In all disputes regarding parental responsibilities alternative dispute resolution mechanisms should be available. Principle 37 Hearing of the childA Associação “Pais para Sempre” está inscrita junto da Comissão Europeia como representante de interesses com o número de identificação no regist o: 22310333566-52 PAIS PARA SEMPRE – ASSOCIAÇÃO PARA A DEFESA DOS FILHOS DOS PAIS SEPARADOS paisparasempre * parentsforever * parentspourtoujours * genitoripersempre * padresparasiempre * elternfürimmer oudersvooraltijd * foreldraraðeilífu * rodičenavěky * γονείςγιαπάντα * родителидлявсегда * 父母是永远的 * ‫األبد الى والدين‬
  21. 21. (1) Subject to Principle 3:6, the competent authority should hear the child in all proceedings concerning parental responsibilities but if it decides not to hear the child it should give specific reasons. (2) The hearing of the child should take place either directly before the competent authority or indirectly before a person or body appointed by the competent authority. (3) The child should be heard in a manner appropriate to his or her age and maturity. Principle 38 Appointment of a special representative for the child In proceedings concerning parental responsibilities in which there could either be a serious conflict of interests between the child and the holders of parental responsibilities or in which the welfare of the child is otherwise at risk, the competent authority should appoint a special representative for the child. Principle 39 Enforcement (1) Failing voluntary compliance, a decision by the competent authority and an enforceable agreement concerning parental responsibilities should be enforced without delay. (2) Enforcement should not take place if it is manifestly contrary to the best interests of the child.A Associação “Pais para Sempre” está inscrita junto da Comissão Europeia como representante de interesses com o número de identificação no regist o: 22310333566-52 PAIS PARA SEMPRE – ASSOCIAÇÃO PARA A DEFESA DOS FILHOS DOS PAIS SEPARADOS paisparasempre * parentsforever * parentspourtoujours * genitoripersempre * padresparasiempre * elternfürimmer oudersvooraltijd * foreldraraðeilífu * rodičenavěky * γονείςγιαπάντα * родителидлявсегда * 父母是永远的 * ‫األبد الى والدين‬

×