Parental responsibility in a cross-border context

The volume of judicial business at the European Court of Justice, including preliminary references, has meant that there was often a large time delay between a reference being made to the Court, and a ruling being delivered. The proceedings in the national court are stayed during the preliminary reference procedure in the European Court of Justice, so cases in the national system were being delayed for long periods whilst the national court waiting for a ruling on the meaning of European law. This is problematic, particularly in relation to family law cases where children are affected and the passage of time will significantly affect the welfare of the child and the position of the parties. To address this problem, the Court now has an urgent preliminary ruling procedure to ensure that a ruling is issued swiftly for cases which have an element of time pressure. International family law cases are covered by this urgent procedure.

Not all family law cases will be heard under the urgent preliminary ruling procedure. A case must be deemed eligible and accepted by the European Court of Justice to be heard under the urgent procedure:

• The European Court of Justice decides whether a case should be heard under the urgent procedure.
• The national court may make a request for a case to be heard under the urgent procedure or, exceptionally, the Court may decide of its own motion to hear a case under the urgent preliminary reference procedure.
• The urgent procedure should only be requested where absolutely necessary and is used exceptionally. It has been requested by national courts in some cases and the Court has turned the request down. The need for the urgent procedure must be clearly demonstrated in the application to the Court.
• In international family law cases, cases which affect children:

The national court must identify the need for the reference to be heard under the urgent procedure. European Court of Justice’s guidance states that:

• The request must set out the matters of fact and law which establish the urgency and the risks involved in following the normal procedure
• The referring court should state its view on the answer to the questions referred, making it easier for the interested parties to outline their positions because this will facilitate the Court’s decision
• The urgency of the reference should be clearly identified in the documentation submitted to the Registry by reference to Article 104(b) Rules of Procedure of the European Court of Justice.
• The questions referred should be as succinct as possible