The judgment of 14 December 2021 of the Court of Justice of the European Union in case C 490/20, (V.М.А. v Stolichna obshtina, rayon “Pancharevo”) in dialogue with the decision 9/2016 of the of the Greek Supreme Court: the criteria for cross-border recognition of personal status and the treatment of “impaired” legal relations in the case of same-sex families

1. Introduction

In its decision No. 9/2016, the Greek Supreme Court addressed the issue of cross-border recognition of personal status and legal relationships formed abroad in the domestic legal order. The issue raised was whether the Court of Appeal, in ruling on an inheritance dispute, was correct in rejecting the recognition of the legal relationship that had been formed between the adopted adult heir and the adopter-deceased. The reason was that under Greek law, the conditions for the adoption of an adult, which took place in Italy, were not met. The Supreme Court ruled in favor of the cross-border continuation of the relationship regardless of the applicable law. In another more recent “Supreme Court” decision, the Court of Justice of the European Union ruled in favour of the cross-border recognition of the relationship between the Bulgarian mother and her minor child, irrespective of whether she was the biological or not mother of the child, going so far as to order Bulgaria to issue travel documents to the child in question and to recognize the child’s birth certificate issued in Spain, which listed her and her partner as her mothers. In particular, by judgment of 14 December 2021 in Case C 490/20, reference for a preliminary ruling under Article 267 TFEU from the Administrativen sad Sofia-grad (Administrative Court of Sofia, Bulgaria), in the proceedings between V. М.А. v Stolichna obshtina, rayon ‘Pancharevo’, took into account the fact that, as the Advocate General noted in paragraph 153 of her submissions, the child had a real family life with each of the two persons.

The question to be considered in this case is whether those criteria of the Greek Supreme Court can be applied to broader cases of cross-border situations and, in particular, to the case of recognition of the families of same-sex couples, and what role the concept of ‘real family life’ plays in that judgment.

Decision 9/2016 of the Greek Supreme Court

Referring to the criteria of the case law of the European Court of Human Rights, but also the decisions of lower courts of our country on the recognition of adoptions, which set aside established provisions that place restrictions on the adoption of a minor, judging that the annulment of the adoption in Greece as a result of these restrictions would be contrary to Greek public policy because it would jeopardise the interests of the adopted child, the Supreme Court, in a “better law approach”, held that Italian law should be applied in order to preserve the relationship that the adopted person had established in Italy with the adopter. In reaching this judgment, the Supreme Court took into account three specific criteria: (a) the length of time that had elapsed between the establishment of the adoption and the time when the validity of the adoption was judged in another country; (b) the intensity of the relationship that led to the establishment of the adoption; and (c) the frustration of the expectations of the parties due to a sudden change in the legal regime or practice of the country in which the question of the validity of the adoption arose. The fulfilment of these criteria leads to the judgment that the family relationship established in the foreign country already constitutes a ‘social reality’ there and this judgment, in turn, in accordance with the case-law of the ECtHR and the interpretation and application of Article 8 of the ECHR, requires the national courts, in cases of adoption with elements of foreignness, to “seek, by recognising the validity of such adoptions, the “cross-border continuation” of the personal situation and the ties between the parties to the adoption, provided that they actually exist in the country of adoption‘.

As the Supreme Court’s decision held in particular, “[…] national courts cannot refuse to recognize an adoption as valid if a family relationship is created in the country where it took place which is already a ‘social reality’ there, simply on the basis of the contrary legal regime under which they have jurisdiction, but they must examine the circumstances of each case“.

The question that arises is whether, once the above criteria have been met, and in the light of the new judgment of the CJEU, the Supreme Court will remain consistent in the judgment that it delivered in the above decision, overturning the hitherto established case law of the lower Greek courts, which reject the recognition of the relationship of non-biological same-sex parents with the biological children of their partners or spouses, whether that social relationship has been formed through adoption or through medically assisted reproduction.

Cross-border recognition in the case of same-sex families

As argued by Professor of Civil Law at the Faculty of Law of the Aristotle University of Thessaloniki, K. Fountedaki, in her opinion entitled ‘Same-sex marriage abroad. Establishment of kinship of spouses with a child born through surrogacy under foreign law. Non-contradiction of the recognition of the relevant court decision in Greek public policy” (published in Civil Law and Civil Procedure Applications, March 2021 pp. 245-254) “[…] the mere fact that a certain family relationship or the manner of its creation is not provided for in Greek law does not in any way infer the contradiction between this relationship and its legal creation according to foreign law in the Greek legal order […]. This is, however, an incorrect approach, as has been highlighted by Greek family case law in recent years. Indicatively, the decision of the Supreme Court 9/2016 held that the recognition of the adoption of a foreign adult by a Greek citizen made in a foreign country without the conditions of CC 1579 being fulfilled is not contrary to but must be judged specifically“.

Within the same range, the CJEU in its above mentioned judgment solemnly rules that “[… ] the obligation of a Member State, on the one hand, to issue an identity card or passport to a child who is a national of that Member State but who was born in another Member State and whose birth certificate issued by the authorities of that other Member State lists as parents two persons of the same sex, and, on the other hand, to recognize the parental relationship between that child and each of those two persons in the exercise of his or her rights under Article 21 of the Treaty on the Functioning of the European Union and the instruments relating thereto, does not imply that the Member State of which the child is a national must provide in its national law for the possibility of persons of the same sex acquiring parental status […]‘.

In other words, in these cases the crucial issue is not whether Greece will allow in its law the possibility for same-sex persons to adopt jointly, but the cross-border continuation of the personal status of the child. In view of this continuation, it is possible that the first criterion of duration and the third criterion of the frustration of expectations, set by the Supreme Court’s decision, may in practice be ‘atoned for’ or at least interpreted accordingly, in order to ‘serve’ the essential result of avoiding the existence of a ‘separate’ legal relationship. Even any knowledge of the parents that the relationship in question will not be recognized in their country of origin, let us take, for example, a case of Greeks who, having lived for years in a foreign country that allows joint adoption by same-sex couples, decide to create their family there, and after years, due to a professional opportunity that arises, they move to Greece, cannot operate “punitively” to the detriment of the children.

As the ECtHR ruled in its judgment in Menesson v. France (application no. 65192/11), to which the above-mentioned judgment of the Supreme Court refers, under paragraph 96 “[…] respect for privacy presupposes that everyone must be able to assert the elements of his or her identity as a distinct individual, which identity includes the legal relationship between parent and child… a fundamental aspect of the identity of the individual is at stake when the legal relationship between parent and child is involved […]. In other words, although it acknowledges that the children have been recognized in another country as the children of the first and second applicants, France denies them that personal status under French law. The Court considers that a contradiction of this nature undermines the identity of children within French society.” This is despite the consideration, contrary to the judgment, that the parents, as French citizens, were aware that the relationship formed through IUI with their children was not recognized in France, and by returning to it they were effectively attempting to consolidate and legitimise in practice an unlawful situation.

An argument is also drawn from the opposite side: any non-recognition of the relationship, and “punishment” of the parents, would bring us to the “solution” of entrusting the care of the child to an institution, which is completely perverse for the interests and rights of the child (cf. Paradiso and Campanelli v. Italy, application no. 25358/12, see paragraph 109 “Thus, the primary aim of the Minors Court had been to prevent the continuation of the illegal situation. The applicants considered that the decisions of that court indicated solely a wish to punish them for their conduct. The child’s interests were mentioned merely to assert that the impact of the impugned measures on him would be minimal“).

As demonstrated in the above cases, where after having children abroad, the non-biological parents immediately attempted to return to the country of origin – residence, any “blind” application of the criteria of both long duration and frustration of the expectations of the parties to the relationship, and the intensity of the relationship, which, in the case of infants, who in many cases have just come out of the maternity hospital and are accompanied by their social parents to their country of residence, would result in the children themselves being punished.

Ultimately, the fact that a state does not recognize the right of persons, whether same-sex or not, to adopt or to recourse to medically assisted reproduction cannot be a reason for a child to be deprived of one of his or her two parents because they are of the same sex. This was, moreover, the opinion of Judge Villiger in Gas and Dubois v. France before the European Court of Human Rights (application No 25951/07): ‘[…] joint custody is in the best interests of the child. I fail to understand the justification for different treatment (between the children of a same-sex couple and a heterosexual couple). In my opinion, all children should be treated equally. I cannot understand why some children, but not others, should be deprived of their best interests, i.e. shared custody. Indeed, how does it affect the status of children to be born to a parent of a same-sex couple, or a parent of a heterosexual couple? Why should the parents’ status affect the child?”.

The case law of the CJEU on the definition of the concept of habitual residence is also useful in this respect, with regard to the vulnerable status of infants and their dependence on their social-psychological parents, even if they have ‘not legally’ acquired this status. As the Court has pointed out on several occasions, the element of duration is disconnected from the judgment as to the country of habitual residence of the child, since the child’s environment is primarily the family environment, determined by the person or persons with whom the child lives and who have de facto custody and care of the child, and the child is necessarily part of the social and family environment of that person or persons. The extremely vulnerable situation of the child, in other words, must support the affirmation of both the time element and the intensity element. The refutation of the expectations is practically impossible.

The above relevant interpretation and application of the criteria of the Supreme Court’s judgment in the cases in question, that is to say, in a way which favours cross-border continuity, is also supported by the provisions of the International Convention on the Rights of the Child, also known as the New York Convention, as ratified under Law No 2101/1992, which have a higher formal force. Specifically, according to Article 2 of the Convention, “States Parties are obliged to respect the rights set forth in this Convention and to guarantee them to every child within their jurisdiction, without distinction of any kind as to race, colour, sex, language, religion, political or other opinion of the child or of the child’s parents or legal representatives, or of their national, ethnic or social origin, property, disability, birth or any other status.” Besides, according to paragraph 21 of General Comment No. 22 (2017) of the Committee on the Rights of the Child, it is explicitly stated that children should enjoy the protection of the Convention irrespective of their or their parents’ sexual orientation, and also in General Comment No. 7 (2005) states that children should not suffer the consequences of discrimination against their parents, for example if they were born out of wedlock or in other circumstances that deviate from traditional values. The same reasoning underlies the CJEU judgment.

In particular, the judgment of the Court of Justice of the EU of 14 December 2021.

The CJEU ruling is a major victory for families of same-sex couples. As the ruling of the judgment encapsulates, the Court concludes that the host Member State is obliged to recognize the birth certificate of a child issued by the Member State of origin and mentioning the two same-sex parents of that child, and to issue a passport or identity card to that child regardless of whether it has issued a national certificate of marital status (where issues of nationality and hard-core citizenship are involved).

The Court is making a ‘pirouette’ here: since it cannot regulate citizenship issues (it cannot oblige Member States to issue a birth certificate in breach of their national law), it stresses the obligation for the host State to issue an identity card or passport to the infant (in order to exercise its freedom of movement; this is a Union competence) and to recognize the certificate issued by the other State.

Why this ‘pirouette’ was made and how it serves: Bulgaria could not issue travel documents to the child because its law required that the child be a Bulgarian citizen and that a birth certificate (birth certificate) had been issued by Bulgaria, which could not be issued because the applicants deliberately did not specify whether the “biological” mother was a Bulgarian citizen. So the Court said that freedom of movement means an obligation to issue travel documents and to recognize the certificate.

This “manoeuvre” of the Court is positive, because by forcing Member States to issue travel documents independently of the granting of citizenship, they are eventually (while not initially forced) to find a way to change their legislation as well.

What does the ruling mean for Greek same-sex nationals living in foreign countries with their families and not recognized in Greece: in principle, the CJEU ruling applies to European citizens. Namely, the holder of the rights in this case was the Bulgarian mother and not the child (for whom it was never established whether she has Bulgarian citizenship, since it was not established who her “mother” is under Bulgarian law, and in the end the Court did not care either) As holders of European citizenship, Greek residents abroad are entitled to have their family recognized by the Greek State. The question is whether family life must be established in a Member State in order for freedom of movement to be used as a basis. According to the Professor of European Law, University of Naples Paphos, Visiting Professor of Law, University of Reading (UK) and Member of the European Commission’s Expert Group “Recognition of parenthood between Member States (E03765)” (2021), it must be held that such a claim for cross-border recognition of one’s family is also held by families who have created their family life in a third state e.g. e.g. Canada, America, South Africa, but then established it, e.g. moved, the child lived there for a while, went to school, in another Member State e.g. Portugal, and then exercised the right to freedom of movement by returning to their country of origin (Greece in our case). This issue may also require a response to a new question referred for a preliminary ruling by the CJEU.

What can Greek families of same-sex couples living abroad do from now on? until recently, the Registrar in Greece could completely throw off the responsibility for the recognition of the birth certificate of children, which listed same-sex persons as their parents, by saying that the court is competent to judge the existence of the family relationship and therefore the recognition of the decision establishing the legal relationship with the non-biological parent by the Court of First Instance is required. This was the opinion No. 201/2018 of the State Legal Council.

Now, with the decision of the CJEU, it is in principle possible to apply directly to the Registrar for the registration of the family certificate regardless of the recognition of the court decision by the Court of First Instance, because the Registrar is now obliged to recognize the certificate issued in the other country.

The gap that exists and remains to be answered n practice is what the obligation to recognize the foreign certificate and the non obligation to issue a national certificate at the same time will mean in practice. This is the weak point of the ‘pirouette’ of the Court of Justice of the European Union. In other words, in an attempt to interpret the judgment, we could say that the host state is obliged to recognize the foreign certificate and may do so if it needs such a certificate to issue travel documents, but this obligation does not go so far as to issue a national registration certificate.

In all other respects, therefore, the judgment, while making triumphant assumptions on which same-sex families can press for more claims, leaves in a limbo what will happen, for example, with the exercise of custody of the child in that state, his or her inheritance rights or any social security benefits to which he or she is entitled in the name of his or her non-biological parent.

It is rightly argued here that a ‘broad’ interpretation of the judgment is required, in the sense that the obstacle to freedom of movement is not simply the failure to grant travel documents to children, but the overall consequences of not recognizing the relationship with their non-biological parent. The recognition of the family relationship in its entirety, that is to say, with all the consequences that the parent-child relationship has for our law, in Greece necessarily passes through the courts of the Court of First Instance. And any families who have already appealed to the courts and had their applications rejected now have, following the Court’s ruling, another strong reason to come back with an appeal or even a cassation appeal.

In any case, it should not be forgotten that recognition of the parental relationship can also be sought on the other legal bases mentioned in the judgment, e.g. the Convention on the Rights of the Child. Nor does it mean that freedom of movement only goes as far as “travel documents”. This is simply how the CJEU answered the specific question and problem, which concerned this bureaucratic, so to speak, “stumbling block” of Bulgaria. It is always crucial for the Greek Courts to establish actual family life.

In lieu of an epilogue: What is de facto family life and what is its significance for the recognition of same-sex families abroad in Greece?

What is the significance of de facto family life in Greece? As the ECtHR has made clear, the non-biological parent of a child in a same-sex family can be counted as a parent for the purposes of Article 8 of the Convention provided that the relationship between the two parents resembles the “model” of the nuclear family. This judgment was confirmed by the above-mentioned decision of 17.12.2021 and the CJEU, reiterating its judgment in the case of persons of the same sex that non-biological children are also direct descendants under EU law.

In the case of young children, and in particular infants, it can therefore only be accepted that the social-psychological parents, who, after all, wanted them to be born, constitute the real family life. The fact that in many cases not enough time has elapsed for them to grow up and develop a bond with their parents does not mean that it is preferable to entrust the exercise of parental responsibility to the institution or to any surrogate mother who has carried them (and, of course, not to the anonymous sperm donor), who has, with her consent, withdrawn her parental responsibility from the outset, in many jurisdictions even before birth. Similarly, any knowledge on the part of parents residing abroad that, under a different legal regime, they would not be recognized as parents, cannot be reflected in the actual family life and expectations of their children, which consist simply in the fact that these persons are their parents and in fact raise and care for them.

It is therefore understood that the application of the criteria set by the decision of the Greek Supreme Court No.9/2016 in the case where the issue of recognition of families of persons of the same sex arises, should be based on the rationale inherent in the decision, which is none other than the need for the continuation of the personal situation across borders and in particular the protection of the child’s best interests, which is consistent with it. Particularly in the case of families who have established their lives in a country of the European Union, in the light of the judgment of the CJEU, the national court is obliged to accept cross-border recognition as a necessary consequence of the freedom of movement. As the motto of the day goes, “If you are a parent in one country, you are a parent in every country”.