In order to make family law even more child-centred, Law no. 4800/2021 has brought radical changes to a number of provisions, the extent of which has not yet been mapped out by the case law of our courts. One such provision is that of Article 1520§2(b).

According to CC 1520§2(b), parents do not have the right to prevent the child from communicating with third parties who have developed a social-emotional relationship of a family nature with the child, provided that the child’s interests are served by this communication. This means that such third parties, legally “unrelated” in principle to the child’s family, without necessarily being the child’s parents or grandparents, his or her ‘legal’ or biological parents, will be able to claim from the parent having custody of the child communication with him or her, achieving judicial regulation of the right to personal communication with the child.

Let us first see who these “third parties” are.

In the same way that the legislature attempts to ensure that the child will keep both parents in his life, it leaves a legal “window” for the child to keep in his life such persons, with whom communication is in his/her best interest, but who were not previously subject to the strictures of our family law. Which these persons are varies from child to child in the same way that the specificity of their interest varies, and as a matter of fact must be judged in each particular case, for each particular child. That is why the vague legal concept of “socio-emotional relationship of a family nature” is used.

In a first theoretical approach to the new provision, ‘The socio-emotional relationship must be of a family nature, i.e. it must develop a function similar to that of the family, linked to the care and protection of the child, the creation in the child of feelings of security, psycho-social balance and emotional well-being. These persons include those who have assumed the responsibility of caring for the child and who have therefore developed a close social and family relationship with the child, particularly in cases where they have lived with the child for a long period of time” (cf. George Lekkas, Custody of the Child under the Civil Code after Law 4800/2021).

A “third party” may therefore be the child’s father, who has not yet made the acknowledgement and is therefore not a “parent” of the child by law. The non-recognition of the child is no longer in most cases an indifference of the father and abandonment of the mother, but a sign of a new social reality in which more and more couples cohabit and start a family without having entered into a marriage, with the result that children are born without being covered by the presumption of paternity. Separation often comes suddenly, even before the birth of the children (it should be noted that the recognition of the child before birth, namely the recognition of the child to be born, is disputed both by a section of theory and by “a section of registry offices”).

The consequence is that, as a result of the intensification of relations between the partners, the father, whose role and active participation in the upbringing of the child was until recently unquestioned, is left without any legal protection. In the case where the mother, for example, because she does not want the father to be involved in her life and further in the child’s life (especially given the new provision in virtue of which the very recognition of a child born out of wedlock results in the joint exercise of parental responsibility with the mother), refuses to consent to voluntary recognition, the father is required to initiate a legal struggle for the obvious: recognition that he is a father.

Judicial recognition of paternity is a process that can take a long time, as with any judicial process, it cannot be done, for example, through injunction proceedings, as full proof is required, and it can only be brought by way of a lawsuit. Until the finality of the positive decision, the father under the previous regime could not claim communication with the child, thus consolidating a situation of estrangement between them, which is difficult to break and certainly requires much more than courts to break (cooperation of the parents, which will probably be impossible, assistance of mental health services, which are also often underperforming, etc.). Under the new provision of Article 1520, this father, biological but not ‘legal’, will be able, even before the finality of the decision on the recognition of paternity, even through the injunction procedure, to claim communication with his child in order to continue to care for it, as before, in its best interests.

It should be noted that “third parties” also include relatives other than the child’s parents, grandparents, and brothers and sisters (whose right to personal communication is expressly provided for under the same article), such as the child’s uncles and cousins.

The new provision may also cover a somewhat opposite situation: that of the social-psychological parent, who is also not a ‘legal’ parent. This means that one can claim continued contact with the child, even though he or she is not related in principle, but who is in fact a reference person for the child through the affection and care he or she shows him or her and the ‘family’ relationship that has thus developed between them. In other words, in this case, for example, the partner of the parent with whom the child was living and who is not legally the parent of the child (e.g. no adoption of a child by a husband).

This case is of primary interest to same-sex couples, whose family life has once again been ignored by the Greek legislature. As the Committee for the drafting of the National Strategy for LGBTQ+ Equality pointed out “”Another individual issue that should be addressed is that of children who are already growing up with LGBTQ+ parents but the State does not recognize parental rights to the non-biological parent. This creates a number of serious problems, especially for minor children. For example, the non-legally recognised parent cannot make decisions for their child, for example, on school matters or if the child is hospitalised. In the event of the death of the biological and legally recognised parent, the children may end up with a distant relative or even in an institution. Similarly, if the non legally recognised parent dies, his or her children are deprived of their inheritance rights. Also, if the two parents divorce, the non legally recognised parent cannot claim participation in the exercise of parental responsibility. Many children growing up with LGBTQ+ parents face such problems in Greece today, estimated unofficially at a few hundred. Therefore, for this specific issue, it is proposed to adopt a transitional provision that will regulate the problem by recognising the second parent of the child.”

Of course, the provision in the second subparagraph of paragraph 2 of the new Article 1520 of the Civil Code does not resolve the invisibility of the social-psychologica parent in the case of “rainbow” families. But it does give him a safety valve in the event of separation, that he can continue to communicate with his child, even claiming overnight or holiday periods with him, even if he is not legally recognised as his parent. It should be noted that after the enactment of Law 4800/2021, it is explicitly stated under the new Article 1511 CC that any decision regarding the regulation of parental care is taken regardless of the sexual orientation of the parents. For the same reason, the fact that in the present case the person with whom the child has developed a social-emotional relationship of a family nature is, for the law, merely the same-sex partner of his or her parent, cannot stand in the way of serving his or her interests.

More recently, in fact, by means of Act no. 145/2020, the Thessaloniki Court of Appeal ruled in the context of a case of international child abduction, that the interests of the minor required that she should not be returned to her biological mother in England, but instead remain under the de facto custody and care of her social “psychological” mother in Greece, based on the following reasoning “The minor, despite being only 6.5 years old, as it appeared, has the ability to compare the environment of one country and the other (at least from the point of view and in those points that concern and touch her own life), she seems content and emotionally secure with her daily life and the environment she lives in today and, apart from the feelings of love she has for her respondent-parent, she seems to have developed a special emotional and psychological bond with her. The child expressed in a categorical manner his specific preference to continue living in Thessaloniki, arguing clearly against her biological mother, who constantly argues with the respondent, whom she called her mother, that she does not want her because she abandoned him, whereas her mother has never abandoned him”.

To sum up, the ‘third party’ will have to prove, on the one hand, the existence of the socio-emotional relationship of a family nature which pre-dates the communication, i.e. not only the existence of kinship but also the existence of a mere socio-emotional relationship (e.g. friends or colleagues of the child) and, on the other hand, that the child benefits from the communication. It is argued, however, that the provision also includes cases of relationships in the process of being formed, which, if they develop, may promote the child’s best interests (see George Lekka, op. cit.). This element is crucial in the case of, for example, the father of a child out of wedlock, who, due to separation from the child’s mother, has in many cases been unable to interact  essentially with the child. Especially in these cases, the fact that the communication promotes the child’s best interests can only be presumed. This is, moreover, the spirit of the new law, which, in compliance with the International Convention on the Rights of the Child, understands the child’s best interests to be directly dependent on contact with both parents.

It is clear that family law in our country has begun to change, truly bringing the child and his or her best interests to the forefront as a methodological tool for resolving disputes that arise centred on the child. It is not so much whether one is a parent “legally” but whether socially and emotionally one can be what one calls a “family”.