EU Child

International Doctoral Conference Osijek

 15-16 March, 2018

 

The international Doctoral Conference Osijek entitled ‘EU Child“  is organized by the J.J. Strossmayer University of Osijek and held in Osijek on the 15-16 March 2018. The Conference is one of the events of the EU Child project „Jean Monnet Chair on Cross-Border Movement of a Child“ reg.br. 575451-EPP-1-2016-1-HR-EPPJMO-CHAIR. EU Child is a three-year long project (1/9/2016-31/8/2019) performed at the J.J. Strossmayer University of Osijek. The project is co-financed and supported by the European Union through the ERASMUS + Program of the Education, Audiovisual and Culture Agency, and by the participating Law faculty. EU Child project is operated as an intensive curricula activity in various interrelated legal areas and through various additional activities with legal aspects of corss-border child movement in its focus. Among the activities one can find enhancing existing teaching activity and intoduction of the new curricula, round table, webinars and workshops for wide range of affected audience (from elementary school children andteachers to law students, practitioners and interested public in general), research activities and a Moot Court in the closing year of the project.

Organizing the Doctoral conference ‘EU Child’ targets one of the project goals. EUChild Chair aims to encourage, advice and mentor young generation in EU studies to cross-border child movement. PhD candidates are encouraged to take part in conference, to conduct  / present a research / prepare a quality scientific paper, either alone or together with their supervisors.

To attract the widest possible audience who can benefit from the research results, the conference abstracts are collected and published here. Conference papers would be published in a separate conference proceedings, whild the top rated contributions would be published in a peer reviewed Law Journal of the Faculty of Law of Osijek.  The Faculty of Law, University of Osijek is much priviledged to host the conference and hopes that the cooperation will be continued.

Mirela Župan

 

 

ABSTRACTS 

INTERNATIONAL CHILD ABDUCTION

Thalia Kruger, professor at Universiteit Antwerpen

When a child is wrongfully removed to or wrongfully retained in a country other than that of his or her habitual residence, that child shall be speedily returned. This is dictated by the 1980 Hague Child Abduction Convention and the Brussels IIa Regulation of 2003, which supplements the Hague Convention in the EU. The custody dispute (the substantive issue of the dispute) must be resolved in the courts of the country of the habitual residence of the child. The Convention and Regulation acknowledge that there may be exceptional circumstances that make the return undesirable (such as when there is a risk that the child will be exposed to harm).

In this lecture I will discuss two elements of the return obligation that can cause difficulties: the short time frame and the question of the habitual residence of a child. I will then turn to the exceptions: their restricted nature and the best interests of the child.

Keywords: child abduction, habitual residence, best interest of a child

 

PROVISIONAL MEASURES AND CHILD ABDUCTION PROCEEDINGS

Mirela Župan, associate Professor, Head of the Chair for Private International Law, Jean Monnet Chair on Cross-border Movement of a Child in the EU – holder, Josip Juraj Strossmayer University of Osijek, Faculty of Law Osijek, Director of the PhD Programme in Law

Senija Ledić, LLM, Doctoral student at Faculty of Law, University of Josip Juraj Strossmayer in Osijek  Judge of the County Court in Split

Martina Drventić, junior researcher at EUFam’s project, Josip Juraj Strossmayer University of Osijek, Faculty of Law Osijek

The purpose of the established system of the treatment in cases of international child abduction, as set out in the Hague Convention on Child Abduction, which has been strengthened, in relation to the EU Member States, by the provisions of the Brussels II bis Regulation, is to secure the prompt return of the child that has been wrongfully removed or retained to her or his Member State of origin. The return of the child must provide full protection of the child both in the state where the child was unlawfully resident and in the state where the child has to return to. In these circumstances, the competent authorities have at their disposal legal mechanisms for provisional and protective measures provided for by the Brussels II bis Regulation and the Hague Convention on Measures for the Protection of Children. The possibility of taking such measures will depend on the national law of the state in question and on the specific circumstances of the case. In this paper, a legal framework will be presented for the imposition of provisional measures in cases of cross-border child abduction, which will be supported by the case law of the European Court of Justice. Case examples gathered under the project “Cross-border removal and retention of a child - Croatian practice and European expectations” will illustrate the difficulties encountered by the courts in the Republic of Croatia when it comes to applying the relevant provisions.

Keywords: cross-border child abduction, Hague Convention on Child Abduction, Brussels II bis Regulation, Hague Convention on Measures for the Protection of Children, provisional and protecting measures, Court of Justice of the European Union

 

THE   ROLE   OF THE MINISTRY OF FOREIGN AND EUROPEAN AFFAIRS IN INTERNATIONAL CASES OF CHILD ABDUCTION

Mario Oreški, mag.iur. univ. spec. pol., PhD in Law candidate, University of Osijek, Ministry of Foreign and European Affairs

This paper examines how the Ministry of Foreign and European Affairs (MFEA) has clarified its competence in cases involving the wrongful removal or the retention of a child. The Consular Directorate of MFEA and a network of Diplomatic Missions and Consular Offices overseas deal with nine new cases of child abduction for the period of 2013-2017. MFEA works in accordance with the Vienna Convention on Consular Relations and with the Foreign Service Act. However, such regulations which would define the MFEA's handling in cases of child abduction have not yet been issued in Croatia. On the basis of the research and comparison of cases of child abduction in Croatia and  in some EU member countries the author suggests that Croatian legislature de lege ferenda takes into account provisions of  legal system of some EU countries when amending the Foreign Service Act or enacting Consular Service Act.

Keywords:     child abduction, Ministry of Foreign and European Affairs, Hague Convention on  the Civil Aspects of International Child Abduction, Vienna Convention on Consular Relations, Brussels IIa Regulation, Foreign Service Act

 

UN/LAWFUL RELOCATION OF A CHILD AND PARENTAL RESPONSIBILITY – CROATIAN CHALLENGES

Daniel Rupić, PhD in Law candidate, University of Osijek, Social Welfare Service 

Due to global recession, Croatian accession to European Union, conditions on domestic labour market and very high unemployment rate are forcing Croatian citizens to search for a job opportunity outside the borders. Resulted, we face more situations where the parents have joint custody, but one of them wants to move to another state with his child, or worse, he already moved without the consent of the other custodial parent. All these circumstances can be a trigger to new family disputes or opening old wounds. Such situations are facing us as to new challenges and interventions – balancing between the right to family life, freedom of movement, rights regarding to parental responsibility and custody rights of the parents and the child’s right to maintain relationship with his parents and other family members.

The reform of the Croatian Family Law system in 2014 made huge improvements and new instruments in solving custody proceedings and parental responsibility matters, by establishing a new arbitrary system in order to promote a peaceful solution in family disputes, before initiating a judicial procedure, all this with a huge respect of joint custody.

How is the current system dealing with cases of custody and parental responsibility matters, regarding to cases of illegal removal or retention of the child? What are the tasks and jurisdiction of the Center for social welfare in Croatia in those cases? How hard is to determine the child’s best interest in custody proceedings, cases of legal relocation of a child or in child abduction cases? We are going to present some real life situations and try to point out some actual problems we are facing in such arduous decision-making process regarding to children.

Key words: relocation, family law, measures, parental responsability 

 

MEDIATION IN CROSS-BORDER PARENTAL CHILD ABDUCTION

Branka Rešetar Associate Professor, PhD, Faculty of Law Osijek, J.J. Stossmayera University of   Osijek

Marijana Šego dipl. iur., Ph.D. Doctoral School of Law, Faculty of Law Osijek, J.J. Stossmayera University of Osijek

Mediation is interactive process, where a neutral third party assists in resolving conflict with the help of specialized communication and negotiation techniques. The mediation process involves looking at the views of   each side and, with the help of mediators, reaching agreement on the issue. The mediator does not make decision, he helps the parties find their optimal solution.

Mediation in family law is particularly appropriate in view of the multidisciplinary approach that needs to be applied to such a dispute, with the complexity of the problem given, the family dynamics, the social environment of the parties, the best interest of a child and their personality. There are many advantages of mediation in every conflict, and mediators who have the knowledge and experience can efficiently and quickly help the parties resolve their mutual conflicts, which is most important in family law cases that involve the children.

When it comes to the cross border parental child abduction, family mediation becomes more difficult since more than one competent authority should act. According to Permanent Bureau of the Hague Conference on Private International Law, cross-border family mediation is defined as “mediation in family disputes where the parties have their residences in different countries. This definition also covers cross – border mediation conducted across borders,  mediation occurring in one country, but involving parties and/or mediators from two countries as well as the situation in which two parties resident in the same country enter mediation in order to resolve the problems surrounding the intended relocation by one party with a child to another country.”(200

The main issue of this paper is the observation of the international regulations dealing with mediation as the most appropriate mechanism in the case of family disputes focusing on child abduction and national family law that regulates family mediation.

In this paper, the authors first analysed the issue of mediation under the international documents dealing with cross-border parental child abduction: the Hague Convention on Child Abduction as well as Council Regulation 2201/200. The second aim of the paper is presentation of new family law instrument – the family mediation regulated by the Family Act 2015, which has been in force since 01.11.2015. The third aim of the paper is insight into practice of the Croatian courts as well as Central Authority concerning the family mediation in cross-border child abduction.

Key words: family mediation, parental child abduction, Central Authorities, Croatian courts

 

CHILD ABDUCTION – VIOLATION OF THE „RIGHT TO A FAMILY LIFE“?

Suzana Šop, mag.iur., Assistant Secretary General of the Sports Association of the City of Zagreb for Legal Affairs, Sports Association of the City of Zagreb, Zagreb. Postgraduate Specialist Study Program Human Rights at the Faculty of Law in Osijek and Postgraduate Doctoral Study Public Law and Public Administration at the Faculty of Law in Zagreb

The right to respect for family life is one of the key rights of today, which requires special attention and the treatment of court and other competent bodies in dealing with cases concerning the illegal removal or retention of a child or kidnapping of children. The application of fundamental international documents in the protection of the right to family life, both of the child and the parent, is a fundamental starting point in this paper. The decision-making process before the competent authorities requires compliance with the provisions of international documents, with particular reference to the Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The best interest of the child is the primary objective to be achieved by applying the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Hague Convention on the Civil Aspects of International Abduction of Children, as well as other key international legal instruments. The primary goal is to protect children from the harmful effects of their unlawful removal or retention over the border. This paper analyzes cases from court practice relating to the unlawful removal or retention of a child by one parent.

Key words: abduction, right to a family life, Hague Child abduction convention

 

SESSION II 

CHILDREN'S RIGHTS IN FAMILY LAW PROCEEDINGS 

Orsolya Szeibert, PhD, associate professor, ELTE Budapest

The rights of the child have come into foreground recently. The person of the child has become more important even in family law proceedings and it is in harmony with the requirements of the CRC. The child has a right to be informed in all matters which affect the child and a right to be heard. The parents, the court and guardianship authority are obliged to hear the child if he or she wishes and his or her opinion has to be taken it into attention according to the child’s age and maturity. The hearing of the child is an issue which is discussed quite much as several practical questions emerge. The importance of the child’s opinion which is one of the CRC’s principles requires a change of attitude towards the children. The issue of who and how supports and represents the child in the family law proceeedings, if needed, is also an actual issue.

Key words: hearing of the child – child’s opinion – giving due weight to the child’s opinion – the child’s representative

 

PROTECTION OF FUNDAMENTAL RIGHTS OF MIGRANT CHILDREN – ARE WE UP TO IT?

Ines Medić, PhD, associate profesor, Faculty of law, University in Split, Croatia

 Mia Grgić, Assistant Faculty of law, University in Split, Croatia 

It is generally well known and widely accepted that children are the most vulnerable category of our society. The way we treat them deeply affects their wellbeing and their perception of this world. Since they are not just our present but also our future we should be aware of our actions and do everything that is in our power to protect our children and the future of the mankind. Thus, the imperativ has to be protection of fundametal rights of all children but the special accent has to be on unaccompanied migrant children. If it was not so obvious before, recent migrant crisis definitely pointed out all the gaps and shortcomings of the existing legal framework.

Unaccomapnied migrant children are entitled to protection under the domestic legislation but also under the international instruments, first and foremost by the UN Convention on the Rights of the Child. Convention incorporates the full range of human rights – civil, cultural, economic, political and social, which all must be protected. Some of its provisions are  particularly relevant for migrant children, like Arts. 10, 20, 36, 37 and 39. There is also General Comment No. 6 as well as number of other international and european instruments. However, recent european practice shows that faced with unexpected influx of migrants many european countries failed to protect fundamental rights of migrant children. Almost all european politics failed too. New migrants keep coming expecting us to protect and preserve thier rights. Are we up to it?

Key words: migrant children, fundamental rights, Convention on the Rights of the Child, European Union

 

CAN DIPLOMATIC STATUS (IMMUNITY) OF A PARENT BE CONSIDERED AS A STUMBLING-BLOCK IN ENSURING THE RIGHTS OF THE CHILD?

Maja Čarni Pretnar, LLM, K.U. Leuven, Doctoral candidate at University of Ljubljana, Faculty of Law

The specific situation was chosen to show that, in general, invoking diplomatic immunity denies the other parent the right to judicial protection at any court other than that of the sending state. As a consequence, it is a child whose rights are being denied as well. A (small) child has no means to defend or act on him- or herself, and is therefore trapped in a situation where he or she cannot acquire judicial protection of his or her rights. The obligation to consider the child’s best interest is enshrined in national legislation mainly as a consideration on the substance. With the Committee on Rights of Children expressly elevating the principle to international procedural law, considerations of the child’s best interests should be made already at the stage when the court balances concurrent international provisions, as early as in seizing jurisdiction. The importance of Vienna Convention on Diplomatic Relations as indispensable for the maintenance of interstate relations has been constantly confirmed by courts. As the human rights gained importance in international law, specifically regarding the question of access to court, invoking diplomatic immunity does not automatically lead to declining jurisdiction, but to conducting an assessment of concurrent considerations. In cases affecting children, one of them should be the consideration of the best interest of the child. The outcome of these assessments is to be seen in forthcoming case law.

 

CHILDREN’S CAPACITY TO GIVE INFORMED CONSENT

Ivana Tucak, Ph. D., Associate Professor, Chair of Legal Theory, Faculty of Law in Osijek, S. Radića 13, 31000 Osijek, Republic of Croatia.

Tomislav Nedić, LLM, PhD candidate at the Faculty of Law in Osijek. S. Radića 13, 31000 Osijek, Republic of Croatia.

Dorian Sabo, PhD candidate at the Faculty of Law in Osijek. S. Radića 13,, 31000 Osijek, Republic of Croatia; Croatia. 

Today informed consent represents an issue of the uttermost importance. There is a widespread opinion that it is not only legally but also morally wrong to conduct medical research involving human subjects without their consent or carry out a medical intervention without the consent of the patient. Yet, it also needs to be stressed that informed consent, which serves to protect autonomy, dignity and the right to self-determination, is in most of its variants confined to competent adults.

Unlike adults, minors lack competence to give informed consent. However, in some situations, minors can give their assent or dissent if they are deemed capable of doing so. Even though the purpose of such assent and the purpose of informed consent overlap for the most part (like providing all the vital information to the patient and honouring his or her choices), informed assent is quite more nuanced. The minor's age, mental development, understanding and susceptibility are just some of the factors that come into play when asking for his or her assent. This intricate topic becomes even more complicated when taking into consideration the lack of extensive empirical research in this field. This paper is aimed at investigating the legal framework of informed consent in the Republic of Croatia in cases in which children appear as patients or research subjects. It also offers comparison of that legal framework with the appertaining solutions of comparative legislations and proposes a new approach and legal reforms in this area.

Key words: informed consent, children, legal competence, children’s assent

 

 

THE CHILD IN A CHILD: CHILD MARRIAGE AND LOST IDENTITY IN SOUTHERN AFRICA

Jane Diala, PhD Candidate, University of Cape Town (UCT); LLM (UCT), BL (Nigerian Law School, Enugu), LLB (Madonna University); Research Assistant at the Centre for Law and Society, University of Cape Town

In most communities in sub-Saharan Africa, the definition of a child is culturally, politically, and socially unspecific and varied. The variance in meanings ascribed to a child is evident in legislative definitions, especially on the issue of child marriage. Child marriage, a human rights violation is a legal or customary union in which one or both spouses are below the age of 18. This practice is prevalent in most communities in sub-Saharan Africa. Arguably, it robs children of the opportunity to enjoy childhood and experience dependence, protection, and care. Rather, it turns them into protectors, nurturers, and providers. Children are shoved with the responsibility of being parents through child marriage. Thus, creating no demarcation between the role and responsibility of an adult and a child. Given that children are ill-prepared for marriage and its concomitant elements such as sex, psychological, emotional and physical maturity to be spouses and possibly parents, this paper argues that the journey to self-discovery and identity is at the intersection of culture, law, and religion. The clash between religious and cultural autonomy is a pervasive problem for national and international laws, one that arises because of claims of immunity from child protection and marriage provisions on the grounds of cultural or religious autonomy. Informed by field work in southern African countries and literature on cultural relativism, this paper suggests that the clash between cultural autonomy and child marriage prohibition is best addressed through a legal pluralist perspective. This perspective seeks to bridge the gap between customary law, national laws, and international treaties, and requires sensitivity to the economic and socio-cultural factors behind the persistence of child marriage.

 

ACCESS TO JUSTICE FOR CHILDREN WITH DISABILITIES

Paula Poretti, PhD, Assistant professor at the Faculty of Law J.J. Strossmayer University of Osijek/Chair for Civil law, S. Radića 13, 31000 Osijek Croatia

Marija Živković, mag.iur., Doctoral student at Faculty of Law, University of Josip Juraj Strossmayer in Osijek

Ensuring standards of access to justice for children addressed by various international, European and national instruments entails both creating conditions for active participation of children in proceedings and adjusting proceedings to their participation. In this sense, equitable access to justice for children means that children are efficiently informed of their rights and obligations, adequately represented by parents or other legal representatives, but in some cases, persons other than their legal representatives and that judges, lawyers and other participants are aware of children’s needs and equipped with relevant knowledge and skills in order to address them. Also, measures which ensure adequacy of courtrooms or other child-friendly spaces in which children are interviewed, appropriate equipment and services and participation of persons (psychologists, social workers, experts, interpreters etc.), which provide necessary assistance to children in acquiring legal protection, are of relevance. The paper aims to examine the level in which Croatian legal system is able to respond to the imposed requirements in proceedings involving children with disabilities. Along with the review of relevant legal framework at international, European and national level,  analysis of the results of a research into court practice, work of the office of the Ombudsman for children, special legal representatives for children and other persons and bodies included in proceedings involving children with disabilities will be conducted. Based on the results of the research, guidelines for possible interventions which would improve the system in the future will be provided. 

 

JUVENILE CRIMINAL PROCEDURE IN BOSNIA AND HERZEGOVINA: BETWEEN GENERAL AND SEPARATE CRIMINAL LEGISLATION

Nedžad Smailagić, LLM, Doctoral Student, Institute of Criminal Sciences (EPRED, EA 1228),

Faculty of Law, University of Poitiers Correspondence: 43 pl. Ch. de Gaulle, F-86022 Poitiers 

Depending on the legislative level, Bosnian-Herzegovinian (BiH) legislation related to juvenile justice is proscribed in either general criminal legislation (substantive, procedural, enforcement or organizational), as at the State Level, or through Juvenile Justice Acts, as lex specialis legislation at the Entity and Brčko District Level. The paper aims at outlining the development of juvenile justice in Bosnia and Herzegovina and analyzing the juvenile criminal procedure as prescribed under the new legislation while comparing it to the procedural model for juveniles proscribed in the Code of Criminal Procedure of BiH and former legislation in the Entities and the Brčko District. As it is suggested in the first part (A), the adoption of Juvenile Justice Acts at the Entity and Brčko District Level represents a new phase of development of criminal legislation in BiH aiming at providing a more comprehensive approach to the issue of juvenile delinquency and securing a higher standard of protection of juveniles within the criminal justice system. The second part (B), apart from providing an outline of criminal procedure and defining the scope of rights and duties of key procedural actors, emphasizes the best interest of the child as a landmark principle of juvenile justice. However, the author is of the opinion that further reform steps are required, particularly at the State Level, in order to provide a fully harmonized legislative framework in this field. 

Key-words: juvenile criminal procedure, best interest of the child, Bosnia and Herzegovina, Federation of Bosnia and Herzegovina, Republika Srpska, Brčko District.

 

SESSION III. 

 

RECENT ISSUES OF THE RIGHT TO FAMILY REUNIFICATION WITHIN EU LAW - ANALYSIS OF THE CASE C-165/14 ALFREDO RENDÓN MARÍN V. ADMINISTRACIÓN DEL ESTADO

Dunja Duić, PhD, LLM (Ghent), Assistant Professor, Chair of European Law, Faculty of Law Osijek, Josip Juraj Strossmayer University of Osijek, Stjepana Radića 13

Tunjica Petrašević,  PhD, Assistant Professor, Chair of European Law, Faculty of Law Osijek, Josip Juraj Strossmayer University of Osijek, Stjepana Radića 13

Ena Buljan, mag. iur., PhD student of European Law, Faculty of Law Osijek, Josip Juraj Strossmayer University of Osijek, Stjepana Radića 13

This paper is concerned with the right to family reunification and its limitations. Freedom of movement of workers is one of the fundamental freedoms enjoyed by EU citizens. It encompasses the right of EU citizens’ family members to move and reside freely within the territory of the Member States regardless of their EU citizenship. The right to family reunification and family members (spouse, partner with whom the Union citizen has contracted a registered partnership which has been equalized with marriage, his/her and his/her partner’s direct descendants who are under the age of 21 and their dependent direct relatives in the ascending line) are defined under Directive 2004/38/EC of the European Parliament and of the Council. This paper outlines the development of the right to family reunification and reviews CJEU jurisprudence regarding family reunification, especially landmark cases (C-109/01 Akrich, C-127/08 Metock and Others v Minister for Justice, and C-34/09 Ruiz Zambrano). It also offers an analysis of the most recent judgment of the CJEU in this regard: Case C-165/14 Alfredo Rendón Marín v. Administración del Estado. In its request for a preliminary ruling, the national court requested interpretation of Article 20 TFEU concerning the dispute between A. R. Marín – a third-country national and father having sole custody of two minor children who are EU citizens and who have resided in Spain since their birth – and the Director-General of Immigration in Spain who refused to grant the former a residence permit on grounds of Mr Rendón Marín’s criminal record in Spain. The purpose of this paper is to analyse this recent CJEU judgment to determine the scope of the right to family reunification with regard to protection of minor children. 

 

TRAFFICKING OF CHILDREN IN THE EUROPEAN UNION

Ksenja Pertinač, master's degree in law, Doctorate student at the Faculty of Law in Maribor; Judicial practitioner employed at the High Court in Celje, Celje, Republic of Slovenia

According to rough estimates, trafficking in human beings is currently enslaving 20.9 million people worldwide. It is a serious crime and one of the worst forms of violations of human rights and dignity. Human trafficking is the second-largest illegal industry in the world, and it is second in money profit right after trafficking of drugs. With regard to trafficking in children, data show that at any moment in the world, there are 5.7 million of children forced to work in factories, plantations and brothels. The sad fact is that most individuals think that slavery has ended decades ago, but it is tragic and real that today there are more slaves in the world than at any point of human history. Every moment we must have the insight that children are human beings with their respective rights and dignity. Human rights are also children’s rights and because of their particular vulnerability, they need additional protection. This should be the goal of all involved handling this crime, the maximum protection of children and the maximum punishment of all the perpetrators involved in this terrible violation of children's rights. If we pursue these goals, we will achieve the optimum of the legislation, and the good effects of our work will follow.

The author of the article, through the problems of the present state in practice, seeks legislative solutions, which he thinks will optimally contribute to the improvement of the situation. Most of the time he uses the secondary analysis method when he is analyzing data collected by other researchers in this field, primary lawyers and research journalists. At the end he shrinks his knowledge in optimum findings.

 

VIOLENCE AGAINST CHILDREN AND INTEGRATED CHILD PROTECTION SYSTEMS IN THE EUROPEAN UNION

Ivana Rešetar Čulo, Advanced Master in Human Rights, Doctoral student at Faculty of Law, University of Josip Juraj Strossmayer in Osijek

In line with international and European human rights instruments and standards, the EU Member States are under obligation to protect children from all forms of violence. The establishment of a holistic child protection system is the primary obligation of each EU Member State and a prerequisite for the effective protection of children. Integrated child protection system covers a wide range of comprehensive and integrated measures and includes multi-disciplinary, cross-sectorial and inter-agency cooperation of all duty-bearers. Due to migration to the EU and mobility within the EU, the number of cross-border and transnational child protection situations is increasing. Those situations require cooperation between social welfare, judicial, investigative and other authorities in different EU Member States. This paper gives an overview of the EU legislation and policy relevant to child protection, and examines the EU’s scope to act to reinforce protection of children against violence, particularly in cross-border and transnational situations. 

 

CROSS-BORDER SUCCESSION PROCEEDINGS AFFECTING A CHILD

Mirela Župan, PhD, Associate Professor at Department of Private International Law Faculty of Law Josip Juraj Strossmayer University of Osijek

Marina Čepo, LL.M., PhD student in European Studies at Doctoral School of the Josip Juraj Strossmayer University of Osijek. 

A child can be subject to various legal relationships that have a cross-border element, and one of them is succession. Cross-border succession proceedings in the European Union are governed by Regulation (EU) No 650/2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession as well as the  Hague Convention of 1961. However, if a child is involved, other legal sources become relevant as well, in particular 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. A child may have different roles in this process, but above all, (s)he may be a testator or a successor. In the context of the latter, if the succession proceedings take place in one Member State, and the child is habitually resident in the other, questions may arise as to representation of a child in such proceedings. Moreover, if a property settlement agreement is reached, the question arises as to which state has the authority to issue an approval of such agreement in relation to a child, i.e. to examine and determine whether it is in the best interests of the child. These issues were addressed by the Court of Justice in the proceedings brought by Matoušková (case C-404/14). Other EU institutions have also been occupied with the same issues in the legislative procedure aimed at amending Regulation 2201/2003, which is still ongoing. In this paper, particular attention is therefore also paid to the relevant provisions of the Proposal for amending Regulation 2201/2003. A distinction in terms of the scope of the European Union Succession Regulation in the context of children may also be relevant in relation to the application of Regulation 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations. Namely, if a maintenance claim is made in the succession proceedings, the question of a qualification of that claim remains open.

 

CHILD PROPERTY RIGHTS - A CHILD AS A SHAREHOLDER

Zlatan Omerspahic, mag iur. Doctoral student at Faculty of Law, University of Josip Juraj Strossmayer in Osijek

In this paper the author analyses child's rights to property with special reference on legal fact when child is registered as a shareholder in company. With aim to emphasize legal specifics which are conditioned with fact that child is shareholder of a company, the author gives a review of international legal framework which carried out of child's property rights. Then, a review in this paper was given through comparative method of  Family law of Republic of Croatia and Family law of Federation of Bosnia and Herzegovina in the segment of protection child's property rights and it indicates on legal deficiencies in context of international legal standards of protection of child's property rights. Also, the author gives an overview of another EU member legislation. In third part of a paper, author analyses legal repercussion regarding fact that child is shareholder in company through prism of Companies Act of Republic of Croatia and fundamental shareholders rights which are reflected through right to manage and right to achieve property interest in company. In concluding remarks, author gives final summary and evaluation of the research and points out legal solutions that should be further explored in the future with the aim of providing this area with better quality regulation.

 

 

EU Child - Doctoral Conference / EU dijete - doktorska konferencija

Datum objave: 26.02.2018.

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