Beijing Law Review
2013. Vol.4, No.2, 61-70
Published Online June 2013 in SciRes (http://www.scirp.org/journal/blr) http://dx.doi.org/10.4236/blr.2013.42008
Copyright © 2013 SciRes. 61
Child’s Life, Step-Family and Decision-Making Process
Susana Navas Navarro
Faculty of Law, Autonomous University of Barcelona, Cerdanyola del Vallès, Spain
Received April 5th, 2013; revised May 6th, 2013; accepted May 15th, 2013
Copyright © 2013 Susana Navas Navarro. This is an open access article distributed under the Creative Com-
mons Attribution License, which permits unrestricted use, distribution, and reproduction in any medium, pro-
vided the original work is properly cited.
Step-families are included within the concept of “family” used by both Art. 8 of the Rome Convention for
the protection of Human Rights and Fundamental Freedoms and Art. 7 of the European Charter of Fun-
damental Rights of 2010. According to the OECD and EUROSTAT figures children that are living in
step-families are between 8 and 12 years old, that is, they could be considered as preadolescents or in
some cases adolescents at all. Thus, they are individuals with a certain grade of maturity that allow them
to form their own views and express them. Today, there is an inevitable link between family and chil-
dren’s participation rights (Art. 12 CRC; Art. 24 EU Charter). Nevertheless, European Law refers to the
step-family from the “adult’s rights” viewpoint concerning the assignment of the parental responsibility to
the step-parent neglecting children’s perspective. As said by Art. 6(1) EU Treaty of Lisbon and by Art.
52(2) EU Charter, the last legal instrument has the same legal recognition as the EU Treaties, which im-
plies that the bedrock for direct and vertical application of the fundamental rights of children by both the
EUCJ and national Courts is settled. Since 2006 one of the strategic objectives of the communitarian in-
stitutions is prioritizing the effective implementation of children’s rights.
Keywords: Children; Step-Family; Rights; European Union; Family Law
“Family” is not defined but referred by European Law. Case
Law both the European Court of Human Rights (ECtHR) and
the European Union Court of Justice (EUCJ) have shaped the
concept of family including different forms of family lives (De
Cruz, 2010; McGlynn, 2006; Sanz Caballero, 2006).
Dealing with the family leads necessarily to children and the
rights that they are entitled to exercise within the family group
(McGlynn, 2006). Family and child’s rights are two aspects of
the same social phenomenon that should be analysed together
Before proceeding, we should determine the meaning that we
confer to the term “European Law”. We are relating to Euro-
pean Community Law and the legislation coming from other
bodies such as the European Council. Within the European
Community Law, we will focus on both “Primary and Secon-
dary Law” as well as on “Soft Law”, with particular regard,
first, to the European Principles of Family Law Regarding
Parental Responsibilities (EPFLRPR) (Boele-Woelki, Ferrand,
González Beilfuss, Jänterä-Jareborg, Lowe, Martigny, & Pin-
tens, 2007) and, second, to the Model Family Code (MFC)
(Schwenzer, 2006). We will also take into account the different
national legal systems of the EU Member States in order to
highlight the relevant legal instruments in the field of our re-
search from a comparative viewpoint.
First of all, we will approach the question concerning the in-
clusion of the step-family within the European meaning of
“family”; secondly, we will introduce the social picture of the
step-family that emerge from the official European statistics
data, third, we will examine the current legal references to the
step-family in European Law (European Community Law and
soft Law) emphasising the “adults’ rights” point of view, which
is that the lawmaker and scholars have taken into account as
starting point of the existing and prospective regulation of the
step-family. Finally, we will present some concluding observa-
tions giving due weigh to the future of the step-family in
Europe and deserving special attention to the figures provided
by the OECD1 and EUROSTAT.
Family and Step-Family in European Law.
The Convention for the Protection of Human Rights and
Fundamental Freedoms, signed in Rome in 1950, shall be men-
tioned at the first place. Article 8, although it does not use the
term “family”, it is concerned with the term “family life” with-
out offering a legal meaning of it.
The former international human rights instruments deserve
relevance to the family as such. Indeed, the Universal Declara-
tion of Human Rights of 10 December 1948, which is “custom-
ary international law” (Article 16(3)), considered that “the fam-
ily is the natural and fundamental group unit of society and is
entitled to protection by society and the state”. Both the Inter-
national Covenant on Civil and Political Rights of 1966, which
came into force on the 23 March 1976, and the International
Covenant on Economic, Social and Cultural Rights of 1966
1OECD means Organization for Economic Co-operation and Development.
S. N. NAVARRO
provided protection and assistance to the family as “the natural
and fundamental group unit of society”. For its own, the Con-
vention on the Elimination of All Forms of Discrimination
Against Women of 1979, that came into force in 1981, recog-
nises the importance of the women’s role within the family
without prejudice to the role, that in an equal basis, the man
The rule of the Rome Convention was reproduced by Article
8 of the Human Rights Act (HRA) of 1998, that states that
“everyone has the right to respect for his private and family life,
his home and his correspondence”. “Family life” has been de-
scribed as an “autonomous and freestanding” (De Cruz, 2010)
concept that depends on the circumstances of each case allow-
ing its broad interpretation. Within the concept of “family life”
children’s rights have deserved protection when their infringe-
ment has been alleged at ECtHR (Smith, 2008), which has as-
sessed that the HRA is a “living instrument” that requires inter-
pretation in the light of social changes (Keegan v. Ireland A/
290, 1994, 18 EHRR 342; Marckx v. Belgium A/31, 1979, 2
EHRR 330; Selmouni v. France, 2000, 29 EHRR 403).
By the HRA, the Charter of Fundamental Rights of the Euro-
pean Union2 (EU Charter) rules the same rights as they have
been settled. In particular, Article 7 refers to the right to a per-
sonal and family life (Article 8 Rome Convention) and Article
9 is concerned with the right to marry and found a family (Arti-
cle 9 Rome Convention). As these norms correspond to those of
the Rome Convention, they shall be interpreted by the Courts in
the same fashion as the aforementioned rules (Article 52(3) EU
Charter), without prejudice to more favourable provisions of
Community Law, in which case the application of these should
prevail over the case Law. Moreover, Article 33(1) of the EU
Charter asserts that “family shall enjoy legal, economic and
As it has been highlighted by scholars, the “pattern of the
family”—and that of the child—that is taken into account by
the EU Charter is a traditional and conservative model (Mc-
Glynn, 2006). Indeed, the angle from which family is seen by
Community legislator is basically a heterosexual marriage-
based family where the mother is the main carer of the child,
who is regarded as a person needing help and protection rather
than as an independent and autonomous human being, who can
express his or her own opinion. This approach is evident in
Article 24 EU Charter that strengths, at the first place, the care
and protection of the child, leaving the best interests of the child
principle to a second place. Article 3 of the Convention on the
Rights of the Child (CRC) does the opposite: first, the best
interest of the child principle has to deserve a paramount con-
sideration, then, the right of protection and care is stressed.
Both family and child pattern, that it could be criticised, are,
nevertheless, in accordance with the statistics data that in fam-
ily issues have been provided by the OECD and EUROSTAT.
This second agency, coinciding substantially with the former3,
remarks how the highest rate of children is living in households
where the parents are married to each other. Therefore, in
Europe most of the families are marriage-based. The average of
heterosexual marriage-based families for Europe-25 is 73, 8%
(Eurostat, 2010), figure that address that, although new forms
of family lives have emerged and are still emerging, that based
on heterosexual marriage is clearly predominant. In addition, if
we focus on the men contribution to the care of the children
(either of both spouses or of one spouse) and other household
tasks, we will appreciate that in the EU-27 women spend more
hours a week on these than men do. In 2009, in Holland, Swit-
zerland and Scandinavian countries, women engaged in house-
work 16 hours a week, whereas men were engaging just 8 hours.
In Belgium, Germany, France, Luxemburg and Austria figures
arise that women are concerned with family tasks 3.6 hours a
week while men only 9.5. The most important gap is found in
Ireland and the United Kingdom, where women spend 14.2
hours a week, as long as men spend just 4.1 hours. Those rates
are consistent with the fact that in the EU-27, 2.9% of part-time
jobs are taken by men and 24.7% by women. They have argued
that their limited participation in the labour market is, firstly,
the result of engaging in the care of their children and secondly,
because of not finding a full-time job (Eurostat, 2009).
Thus, we consider that, though controversial, European Law
reflects the lifestyle that most of European citizens have cho-
Despite this preference, new family lifestyles, as we point
out above, are becoming more evident in Europe due not only
to the fact that single parents and heterosexual and homosexual
civil partnership are nowadays admitted in all countries, but
also because most of the countries allow homosexual marriages.
In addition, separation and divorce have become a common-
place in Europe. Therefore, some of these new families are “se-
cond families” where children of both spouses or civil partners
are living with those of one spouse or civil partner. Step-fami-
lies are a reality in Europe. However, there is no specific statis-
tical data concerning them because they are included in the
most general figures for marriage and partnership based fami-
lies, without distinction if it is a former, second or even, in
some rare cases, third families (Eurostat, 2010).
A mention, albeit indirect, to step-families is found in Article
3(2) and Article 5 CRC. In these rules, the CRC obliges States
to ensure the necessary protection and care for the child’s wel-
fare taking into account the rights and duties of legal parents or
a third person, who has parental responsibility over the child.
This third person could be, according to the national jurisdic-
tions, a step-parent.
Even though the EU Charter uses the term “family” in sin-
gular, Europe does not ignore a pluralistic (Beck-Gernsheim,
2002) concept of it, which has often been reflected in both the
ECtHR and EUCJ case Law (Sanz Caballero, 2006). If we fo-
cus on step-families, two leading cases deserve due attention:
Bambert and R. v. Secretary of State (C-413/99, ECR I-7091)
and Carpenter v. Secretary of State (C-60/00, ECR I-6279). In
the former it was considered that the step-child should be
treated as a member of the migrant worker’s family for the
purpose of his right of residence in a EU member state in order
to follow his education, and, in the second one, the Court ruled
that the interests of Mr. Carpenter’s son are perfectly assisted
by the right to a “family life”, a fundamental right recognised
and protected by Community Law.
Concerning the ECtHR, the Kroon v. Netherlands (1995, 19
EHRR) case should be stressed concerning a step-family in
which the partners do not live on a regular basis together. It is
worth to note that the partner of the mother of the children
economically contributed to their maintenance and was emo-
tionally attached to them (Sanz Caballero, 2006). The ECtHR
2DOUE 2010/C 83/02.
3In the OECD-22 the rate of children living in heterosexual marriage fam-
ily-based is of 82.9%.
(http://www.oecd.org/els/socialpoliciesanddata/41919533.pdf). Last check-
ed: of 5 April 2013.
Copyright © 2013 SciRes.
S. N. NAVARRO
understood that in this case “family life” still exists and thus
could be protected under Article 8 HRA 1998 (McGlynn,
A Social Picture of the Step-Family in Europe
Nowadays there are many types of step-families, albeit
originally it was considered as such the family in which at least
one spouse or partner had already been married before and
children from the previous personal relationship are living in
the dwelling, together with newborn children of both spouses or
partners (Wardle, 1993; Berstein, 1999). To this family was add-
ed, first, the family where one of the spouse or partner had al-
ready been in a civil partnership and, second, the single parent
that lives together with another person in a marital or non-
marital based relationship (Goldscheider & Sassler, 2006; Nel-
son, 2006; Sarkisian, 2006). The central elements of all of these
forms of family life is that they are based on the existence of a
marital or non-marital relationship—both homosexual and het-
erosexual—and on the presence of children of both spouses or
partners or of one of them.
If we handle at this moment with the statistics data provided
by the EUROSTAT4, between years 2006 and 2010, it turned
out that, although more marriages than civil partnerships were
established, in the EU-27 the rate of marriages has decreased
whereas divorces are increasingly commonplace. In this topic, a
relevant difference between northern and southern countries in
Europe can be appreciated. Whereas in northern countries civil
partnerships have increased, in southern countries there is a
higher trend to marry (Eurostat, 2010)5.
The marriages between single people are still frequent, how-
ever second marriages have become more and more usual. Fig-
ures do not take into account the existence of step-children in
“second families”. When we look at the statistical data provided
by the OECD—based on statistical data given by the EURO-
STAT—arise that the average age for the former marriage is 32
years old for men and 29 to 30 years old for women6 and the
average age for divorce is between 40 and 45 years old for both
men and women, that is, the breakup of the relationship arises
between 10 and 15 years after the former marriage7. These rates
shall be supplemented by the average age for women to give
birth to their first child that, in the EU-27, is between 29 and 34
years old8. What is being suggested here is that when people
marry for second time, they probably have children around 8
and 12 years old. Therefore, in second families, there are chil-
dren (mostly, step-children) that could be regarded as preado-
lescents or adolescents, that is, children with a certain grade of
maturity permitting them to be able to form their own views
and express them.
Nevertheless, the model of the “child” in Europe is still, as
we have highlighted when we were looking at the “family pat-
tern”, a traditional and conservative one, in which the child is
viewed as depending on an adult and needing of special assis-
tance. This child pattern still exists despite of relevant legal
milestones such as the CRC or the EU Charter. A timid attempt
to modify this could be found in the EPFLRPR 3:4 and in Arti-
cle 3(25) MFC (“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), even though there
are still some steps to go forward.
The self-determination and the best interests of the child
principles are recognized in all of the European national legal
systems (Boele-Woelki, Braat, & Curry-Sumner, 2005), albeit,
they have been deprived of real implementation. Because of
this, the European Commission in the Communication on Stra-
tegic Objectives 2005-20099, has stressed that the rights of
children are one of its priorities, considering that they should
not simply be subsumed in the more general human rights.
Prospective actions taken by the European Union, concerning
children’s rights, have been prescribed in the Commission’
Communication Towards an EU Strategy on the Rights of the
Child, whereby an appeal is made to Member States, commu-
nitarian institutions and other bodies to play an active role in
the development of this strategy as a means of consolidating the
European integration10. Then, if it is still necessary to raise the
implementation of children’s rights in terms of strategy, it is
because they are not implemented effectively.
Adults and children have cross-cultural views relating chil-
dren’s rights. Indeed, adults tend to focus on their duty of
child’s maintenance while children have other perspective
based on their autonomy, independence and self-determination.
They are concerned with the “free development of their person-
ality”. As rightly said by Eekelaar (1986), children are holders
of a variety of “interests”, in particular, three: first, the primary
ones related to the maintenance of the child (nurture, education,
medical care, etc.); second, those regarding the personal de-
velopment and, third, concerning the personal autonomy. The
former two are the backbone of the “welfare of the child”. In
the scholars’ opinion, the development of the child’s personal-
ity is a fundamental interest of him or her in order to be com-
petent for exercising his or her right of self-determination and
to participate in the decision-making process. Adults have been
(and still are) reluctant to recognise and act according to these
interests that are seen as a mainstream by children (Eekelaar,
From the adults’ perspective, personal relationships with
children are “hierarchical”-based and they present a remarkable
“paternalistic” profile. From the children point of view, per-
sonal relationships are conceived on individualism, on human
rights, and in particular, on personal freedoms. They do not
seek to separate themselves from their families, instead they
regard themselves as independent individuals in order to par-
ticipate in the decision making process in matters that affect
their personal life (Cherney, Greteman, & Traves, 2008).
5The rate of the decrease of marriages at the OECD countries between 1970
and 2009 could be looked up at:
0divorce%20rate%20-%20updated%20240212.pdf. Last checked: of 5 April
20divorce%20rate%20-%20updated%20240212.pdf. Last checked: of 5 April
20divorce%20rate%20-%20updated%20240212.pdf. Last checked: of 5 April
S-EH-06-001-EN.PDF. Last checked: of 5 April 2013.
Current European Legal References to the
Step-Family from the Viewpoint of the
In this section importance is attached to the current European
legal references in relation to the step-family: from Community
9COM (2005), 12.
10COM (2006), 367 final.
Copyright © 2013 SciRes. 63
S. N. NAVARRO
Law to European family soft law, coming across the different
European jurisdictions. In all of these systems it is clear that the
regulation of the step-family is made from an “adults’ rights”
point of view, hardly regarding the child’s welfare, the best
interests of the child principle or the children’s rights, despite
the relevant section that in all of the national Acts and Statutes
regulating children’s rights these principles deserve.
So, first we will deal with the Community Law, secondly, we
will treated the regulation of the step-family in the European
national legal systems and thirdly, we will outline the family
soft law, in which the difficulties in order to obtain from the
different European legal traditions common core elements are
Step-families have deserved some attention in Community
Law. Indeed, firstly, we should refer to Article 2(2) lit. c of the
Council Directive 2004/58/EC, of 29 April 2004, on the rights
of citizens of the Union and their family members to move and
reside freely within the territory of the Member States amend-
ing regulation11, which when using the term “direct descen-
dent”, for the purpose of this Directive, despite its ambiguity,
means “who are under age of 21 or are dependants and those
of the spouse or partner”. So, it means “step-children”.
At the second place, it is worth to allude to a family reunifi-
cation case, Article 4(1) lit. c and lit. d of the Council Directive
2003/86/EC, of 22 September 2003, on the right to family re-
unification12 that takes into account—indirectly—the reunifica-
tion in step-families when the sponsor shares custody of the
child minor provided that the other party sharing custody has
given her or his agreement. We should remind that children
have the right to maintain direct contact and on a regular basis a
personal relationship with both his or her parents (Article 24(3)
The aforementioned two Directives take an adult-centered
approach. Indeed, the legislator made provisions on the rights
of the adult either to move freely through the EU member states
or to reunify his or her family. The child has the right to main-
tain direct contact with both his or her parents and with other
family members and relatives, in spite of European national
legislators that, in fact, consider this right as a right of the adult
to maintain direct contact with the child. The positive right of
the adult has also a negative side; that is the right to not main-
tain a personal relationship with the child, even to the extreme
that parents can give the child for adoption. The negative right
to not maintain a personal relationship with the adult is not
recognized to the child at all.
Now, let us focus on the norms that will “communitarize”13
International Private Law (Cano Bazaga; McGlynn, 2006): we
should underline, first, the Brussels Treaty II of 28 May 1998
on jurisdiction, recognition and enforcement of judgments in
matrimonial matters and matters of parental responsibility14,
that was in its turn substituted by the Council Regulation (EC)
1347/2000 of 19 May on jurisdiction and the recognition and
enforcement of judgments in matrimonial matters and in mat-
ters of parental responsibility for children of both spouses15,
whose Art. 3 does not refer to step-families but does use the
term “parental responsibility” in a broader sense in order to
include a plurality of persons that could be considered holders
of the parental responsibility, including step-parents. This Re-
gulation was also repealed by the Council Regulation 2201/
2003 of 27 November, concerning jurisdiction and the recogni-
tion and enforcement of judgments in matrimonial matters and
the matters of parental responsibility16 (Article 2(7)) that rules,
like the abrogated norms, a marriage based family, in which
there are children of both spouses. There is no mention to step-
families; in spite of the employ of the term “parental responsi-
bility” has became a commonplace.
In July 2006 the Proposal for the Regulation amending
Brussels II bis as regards jurisdiction and introducing rules
concerning the applicable law in matrimonial matters17 was
approved. However, the Proposal did not amend the Council
Regulation concerning parental responsibility.
At international level The Hague Convention on Jurisdiction,
Applicable Law, Recognition, Enforcement and Co-operation
in Respect of Parental responsibility and Measures for the
Protection of Children of 19 October 199618, in Article 1(2),
provides that “parental responsibility” includes parental author-
ity or any analogous relationship of authority determining rights,
powers and responsibilities of parents, guardians or other legal
representatives in relation to the person or the property of the
child19. On 25 January 1996 the European Convention on the
exercise of children’s rights was approved and Article 2 lit. b
states that “parental responsibility” means “parents and other
persons or bodies entitled to exercise some or all parental re-
In the Community Regulations we should distinguish, on the
one hand, the family pattern taken into account from, on the
other hand, the parental responsibility. Indeed, the parental
responsibility is expanded beyond its originally limited defini-
tion and legal parents and other persons could be regarded as
holders. However, to become a holder of the parental responsi-
bility does not mean necessarily to found a family with the
When a second family is concerned, the family pattern that is
also outlined by these Council Directives is a traditional con-
servative heterosexual marriage-based family, in which the
adults’ rights viewpoint deserved special attention. It could be
said that the CRC and the EU Charter have not had too much
influence on these rules.
Regulation of the Step-Family in the European
First of all, we will expose the legal meaning of “parental
responsibility”, secondly, we will focus on how the different
European jurisdictions assign parental responsibility to the
step-parents and last but not least, we will provide some refer-
ences concerning the adoption of the step-child.
11DOUE 2004, L 229/35.
12Council Directive 2003/86/CE, of 22 September 2003, on the right to
family reunification (DOUE 2003, L 251/12).
13The EU has assumed exclusive competences for the conclusion of Interna-
tional Conventions with third parties that concern matters ruled in commu-
ooperation_in_civil_matters/l33194_en.htm. Last checked: of 5 April 2013.
15DOCE L 160, of 30 June 2000.
16DOCE L 338, of 23 December 2003.
17COM(2006) 399 final.
18http://www.hcch.net/index_en.php?act=conventions.text&cid=70. Last check-
ed: of 5 April 2013.
19European Treaty Series, n.160.
Copyright © 2013 SciRes.
S. N. NAVARRO
The Legal Meaning of Parental Responsibility
“Parental responsibility” is mostly regulated in the Euro-
pean national legal systems within the Civil Code. Austria,
Belgium, France, Germany, Spain, Italy, Greece, Lithuania,
Portugal, Holland and Switzerland are an example of this law-
making policy. Parental responsibility is also regulated within
the Family Code like in Bulgaria, Czech Republic, Hungary
and Russia. On the other hand, Denmark, Ireland, England and
Wales, Finland, Norway and Sweden (Boele-Woelki, Braat, &
Curry-Sumner, 2005) have regulated “parental responsibility”
either in specific rules concerning children’s rights, parental
authority, custody or guardianship Acts.
The employ of the term “parental responsibility” stems from
the Common Law tradition, in particular, from the sec. 30 of
the Children Act of Norway of 198120. Later it was used by the
Recommendation n. R. (84) 4 of Europe’s Council on parental
responsibilities21 and by the United Kingdom’s Children Act of
1989 (sec. 2). In the last legal system, by using this term, the
legislator declares that, on the one hand, parents have rights as
well as duties over their children and, on the other hand, that
parents were entitled instead of the State (Eekelaar, 1991) to
fulfil these duties. In this sense, sec. 3 (1) provides, regardless
of its ambiguity, the following content of “parental responsibil-
ity” (Freeman, 2010): “all the rights, duties, powers, responsi-
bilities and authority which by law a parent of a child has in
relation to the child and his property”22.
The term “parental responsibility” is also used in § 31 of the
Czech Family Code, in Irish Law [Children (Northern Ireland)
Order 1995] and, since 2008, in Portuguese Law (Código
The above mentioned content of the parental responsibility23
corresponds, for instance, to the content of the term “autorité
parentale” used in France (Code civil), of the term “Elterliche
Sorge” employed in Germany (BGB) and, of the “patria po-
testad” admitted in Spain (Código Civil). The term “parental
authority” with the same meaning as “parental responsibility” is
accepted in Denmark (Danish Act on Parental Authority and
Contact of 1996), Italy (Codice Civile), Lithuania (Civil Code
of 2001), Holland (Dutch Civil Code), Poland (Family and
Guardianship Code of 1964) and Switzerland. “Parental care
and guardianship” is instead the term employed in Greece,
“parental rights” in Russia (New Russian Family Code of 1995)
and “parental rights and obligations” in Bulgaria (Child Pro-
tection Act of 2003).
In other European legal systems the legal wording is “cus-
tody” or “care”. This is the case of Austria (ABGB: Obsorge),
Finland (Finish Child Protection Act) and Sweden (Lowe,
Hence, parental responsibility means “all the duties, rights
and powers over the child”.
Due to the fact that the term parental responsibility is admit-
ted by international and European legal instruments, it could be
understandable that scholars when considering harmonizing
Family Law in Europe have taken it into account as we will
Regarding the holders, most of these norms attribute the pa-
rental responsibility either to the legal parents or/and to the
step-parent. As we will expose in the next section, this attribu-
tion differs among the European jurisdictions. For instance, in
English Law, more than one person can be simultaneously
holder of the parental responsibility over the same child. Sec. 2
of the Children Act of 1989 states that:
“(5) More than one person may have parental responsibility
for the same child at the same time. (6) A person who has pa-
rental responsibility for a child at any time shall not cease to
have that responsibility solely because some other person sub-
sequently acquires parental responsibility for the child”.
Nevertheless, there are some relevant differences between
European jurisdictions relating the legal status of the step-par-
ents when it is compared with that of the legal parents of the
child. Indeed, while in some jurisdictions, like those of the
Common Law tradition, they have almost the same legal status;
other jurisdictions, like those comprised in the German-French
tradition, make important distinctions between them in order to
assign parental responsibility. This question will be developed
in the next section.
Assignment of Parental Responsibility
The European national legal systems, as we have already af-
firmed, do not ignore step-families, and, even though they have
been variously regulated, all of them have as a common feature
that the regulation is made from an adult-centred approach.
According to the legal policy of each EU member state, we
first find some legal systems, in which the State, hand by hand
with the legislator, has directly attributed to the step-parent the
right to participate in the decision-making process concerning
child’s daily matters. Therefore, in this case, the State estab-
lishes a personal relationship between the child and the step-
parent. At the second place, there are some legal systems, in
which what is given by the legislator, in accordance with the
State, to the step-parent is the right to set up a personal rela-
tionship with the child. Thus, here the relationship is not di-
rectly—albeit indirectly—constituted by the State. Third, out-
comes of this overview will be expose.
The state directly recognises parental responsibility to the
State could set up a personal relationship between the child
and the step-parent according to two patterns: 1) the attribution
of the exercise of some parental responsibilities to the step-
parent “in addition” to legal parents or third persons; 2) the
attribution of the parental responsibility to the step-parent “in-
stead of” the legal parents as an alternative to child’s adoption.
Concerning the first pattern, it is worth to regard the German
legal system, the Swiss legal system and some of the Regional
legal systems in Spain. Approaching the first jurisdiction, we
should consider § 1687 BGB (Sorgerechtliche Befugnisse des
Ehegatte)24 and § 9 (1-4) LPartG (Regelungen in Bezug auf
Kinder eines Lebenspartner)25. The former is referring to the
spouses and the second to the registered homosexual partners.
48389. Last checked: of 5 April 2013.
/Rec_84_17_en.pdf. Last checked: of 5 April 2013.
22A list of the most important rights and duties included within the content o
“parental responsibility” could be read at the Children (Scotland) Act1995
in sec. 2 (1). This Act could be checked at:
http://www.legislation.gov.uk/ukpga/1995/36/section/1. Last checked: of 5
23Some legal instruments has used the term both in singular and plural, but
this indistinct use does not bring any particular legal consequence in order to
the most accurate interpretation of it.
24The German Civil Code (BGB) was amended in 2001 by the LPartG (see
next footnote), in order to insert this right into the regulation of the “parental
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Both legal instruments state the right of spouse or the partner of
the parent of the child in order to participate in the decision
making-process in matters that concern the daily child’s life.
This right is described by German scholars as a “kleines Sor-
gerecht”, that is, “small parental responsibility”26.
Article 299 of the Swiss Civil Code settles that the step-
parent has the fundamental duty to assist his or her spouse,
legal parent of the child, who is the holder of the parental re-
sponsibility. Thus, the participation of the step-parent is due to
the fact that he or she should fulfil a matrimonial duty. § 33 of
the Czech Family Code has taken the same legal approach
when regulating the participation of the step-parent in matters
regarding the child of the spouse or partner.
Swiss scholars consider, when interpreting the wording of
Article 299 of the Swiss Civil Code that, in this case, the legal
status of the step-parent is similar to that of the “foster parent”
(Schwenzer, 2002). For the Austrian legislator (§ 186a Austrian
Civil Code) the step-parent is considered indeed as a “foster
parent”, as well.
Within the Spanish legal system we should highlight two
Regional Laws: first, the Catalan Civil Code and second, the
Foral Civil Code of Aragon. Both Civil Codes settle the right of
the step-parent over the step-child into the legal framework of
If we deal at this moment in-depth with the aforementioned
second pattern of attribution of the parental responsibility, the
feature of it should be outlined. Indeed, it concerns the fact that
the step-parent has the same legal status as the legal parent of
the child, what means that he or she has the right to participate
in the decision-making process relating all matters that affect
child’ life. The step-parent is also concerned with the legal
representation of the step-child. So, the step-parent is acting
“instead of” the other legal parent. Usually, European jurisdic-
tions accept this model of assignment of parental responsibility
to the step-parent provided that the parental responsibility of
the other legal parent ends up. This pattern of attribution is
admitted in Bulgaria as long as the parenthood of the other
parent of the child was not legally determined, in Lithuania
whenever the child was recognized by the biological parent that
is married or currently cohabiting with the step-parent and in
The Netherlands, where the parental responsibility is assigned
to the step-parent providing that parenthood with the other bio-
logical parent was not assessed (Boeli-Woelki, Braat, & Curry-
There are relevant differences concerning legal effects be-
tween both models of assignment of parental responsibility to
the step-parent. Actually, when the attribution relates to the
exercise of some parental responsibilities, the step-parent is just
concerned by some kind of matters, those regarding daily and
urgent matters. The step-parent is entitled to act “in addition” to
both legal parents and not “instead of” them, which means in its
turn that the step-parent is not considered as a legal representa-
tive of the minor. The step-parent cannot conclude contracts as
a legal representative of the minor. His or her participation in
daily and urgent matters of the step-child concerns just factual
acts. This does not mean that the step-parent cannot contract, he
or she will do it in his or her own name (instead of on behalf of
the child), albeit the benefits of these contracts results in the
child best interest.
The step-parent has not a duty to maintain the step-child,
though in some European legal systems the lack of this duty is
controversial. In relation to the duty of maintenance of the
step-parent in the case of the attribution of the exercise of pa-
rental responsibilities “in addition” to the legal parents, the
European national legal systems do not have a uniform regula-
tion. Some of them have gradually admitted the existence of
this duty of the step-parent, when the step-child is a minor, i.e.,
Dutch Civil Code, Swiss Civil Code, Swiss Same-Sex Regis-
tered Partnership Act of 18 June 2004, Children Act 1989 of
the UK and the Child Support Act 1991-199527 (Navas Navarro,
2010; Sosson, 1993).
In accordance with the second model of step-parent’s paren-
tal responsibility attribution, step-parent acts “instead of” the
legal parent. Hence, the step-parent is a legal representative of
the child, together with his or her spouse or partner, and can
take decisions concerning all of (personal and patrimonial)
matters that affect him or her.
The exercise of the parental responsibilities is conceived in
both patterns as an adult’s right, what means that the adult can
decided or not to exercise this right. So, the regulation is adult’s
On the other hand, relating the step-child, he or she has the
right to be informed and to be heard (Article 12 CRC, Article
24(2) EU Charter). However, these rights will be fulfilled only
when the adult decides to take “decisions” concerning child’s
daily matters inspired by his or her “best interests” (Article 3
CRC, Article 24(2) EU Charter) and often the child is informed
and heard after the decision is taken and the adults have acted.
Moreover, the legal regulation of the step-family made by the
European lawmakers have left aside the participation of the
child in the law drafting process itself.
Ultimately, the regulation of the step-family is paternalistic.
It is aimed “to protect” the child or “to assist” the legal parent
of him or her. It is not drafted from the child’s right viewpoint
in order to want or not that a third person take decisions relating
his or her personal life. In fact, it should be the child, who is
entitled to take this kind of decision if above all we keep in
mind that most of the step-children could be regarded, accord-
ing to the exposed official European figures, as pre- and ado-
The state directly recognizes the right of the step-parent
to require the assignment of parental responsibility.
If we give attention to the recognition of the right of the
step-parent to require the assignment of parental responsibility,
from the European national legal systems arises that there are
also two patterns in order to attribute this right. First of all, by
permitting that legal parents of the child and step-parents reach
an agreement whereby the step-parent is entitled to have in
whole or in part parental responsibilities over the child. This
agreement is based on the free will principle. However, in most
of the EU legal systems this kind of agreement concerning the
parental responsibility is prohibited because this matter is sub-
jected to the “ordre public” clause. This is the case, for instance,
of Germany, Austria, Bulgaria, Spain, Finland, France, Greece,
Hungary, England and Wales, Ireland, Italy, Lithuania, Norway,
Poland, Portugal, Russia, Sweden and Switzerland. Neverthe-
25Gesetz über die Eingetragene Lebenspartnerschaft (Lebenspartnerschafts-
gesetz-LPartG), of 16 February (BGBl. I, p. 266). The last amendment o
this Act has been done by Art.7 of the Act of 6 July 2009 (BGBl. I, p. 1696).
26This term was given by the Commission that drafted the rule (BT-Drucks
14/3751, p. 39).
27http://www.opsi.gov.uk/Acts/acts1991/ukpga_19910048_en_1. Last check-
ed: of 5 April 2013.
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S. N. NAVARRO
less, article 475 ter of the Belgium Civil Code states that most
of the parental responsibilities could be attributed to the
step-parent by agreement whereas the child, minor of 15 years
old, consents this attribution. In Denmark is also permitted the
attribution of parental responsibility by agreement provided that
the competent Court approved it by an “order” (Lowe, 2009).
The content of such an agreement is twofold. Indeed, it could
be referred, on the one hand, to the attribution of the parental
responsibility “instead of” the legal parents of the child as in
Belgium and Denmark and, on the other hand, to the attribution
of the exercise of some parental responsibilities “in addition to”
or “instead of” the legal parents. This is the case of the British
legal system. Section 4A of the Children Act, which was
amended by the Adoption and Children Act in 2002 and by the
Civil Partnership Act in 2004, rules the agreement whereby the
legal parents of the child can attribute the exercise of some of
the parental responsibilities to a third person as long as the
child lives together with him or her. Consequently, more than
one person (a “parenting team”) takes decisions concerning
child’ personal life that, in the same matter, could potentially
come into conflict. Then, the regulation of the step-families
from the adult’s rights point of view turns against the welfare of
the child (Eekelaar, 1998).
The second way for the State to attribute the right of the
step-parent to require the assignment of the parental responsi-
bility over the child is by permitting that the step-parent applies
to a Court in order to have the parental responsibility by means
of an “order”. The content of this “order” could be, as we have
described, twofold: 1) it concerns the exercise of some parental
responsibilities “instead of” or “in addition to” the legal parents
of the child or 2) it could be regarded the assignment of the
parental responsibility as such “instead of” the legal parents,
that is, the step-parent is considered as a holder of the parental
responsibility. In Finland and France if the step-parents will
have some kind of parental responsibility over the step-child
they shall bring a lawsuit to the Court in order to be a holder of
some parental responsibilities in addition to the legal parents.
For its own, in Austria due to the fact that step-parents have the
same rights and duties as foster parents, they are entitled to be
holders of the parental responsibility instead of the legal parents.
However, it shall be attributed by an “order” of the Court (Bo-
ele-Woelki, Ferrand, González Beilfuss, Jänterä-Jareborg, Lowe,
Martiny & Pintens, 2007). British, Scottish and Norwegian Law
rules also this pattern of attribution of the parental responsibil-
ity by means of a “residence order”. For instance, it is so states
in sec. 12 of the British Children Act of 1989. The “residence
order” prescribes the person the child will live together with
(Harris-Short & Miles, 2007).
The fact that the step-child lives together with the step-parent
is a requirement of the assignment of the parental responsibility
by the State in the variety of patterns that we have already ex-
posed28. However, this requirement is seen as a “residence”,
that is, the place where the child actually lives, as distinguished
from the “domicile” of the child that could be fixed in the place
where one legal parent is currently living. This means bodily
presence of the child always or for some periods of time at the
step-parent’s home. It should be realised that depending on the
facts, the legal parent of the child, who is married with the
step-parent or has entered into a civil partnership with him or
her, could have joint or share parental responsibility with the
other child’ legal parent.
So, the adult takes decisions affecting daily matters of the
step-child, when he or she is currently living with.
European national legal systems do not require for attributing
to the step-parent parental responsibility of a minimum period
of time, in which step-parent and step-child live with. Hence, as
alternative requirement to this, German Law (§ 1687b Abs. 4
BGB and § Abs. 4 LPartG), for instance, provides that the par-
ticipation of the step-parent in the decision-making process is
only valid if the legal parent of the child, who is currently liv-
ing with, consents such participation.
In our view, the requirements of a minimum period of time
currently living with the step-child and step-parent shall be seen
as conform to the welfare of the child. Indeed, living in a step-
family is not precisely easy, or not usually so, in particular,
when children of different ages (Bar-Hava & Pryor, 1998;
Schwebel & Fine, 1991; Edwards, 2002; Manning, Smock, &
Majumdar, 2004; Melli & Brown, 2008) are living in and when
the question about who should economically maintain the
step-child arises. Nevertheless, legislators have kept in mind a
picture of the step-family that is not corresponding to the “true”
step-family. They think in a well-established family in which
all of its members are happy and they have excellent personal
relationships to each other. The social facts show the opposite.
So, would it not have been more respectful to the welfare of the
child if the lawmakers have required some kind of period of
time of living with in order to attribute parental responsibilities
to the step-parent? Once again, we should stress that rules are
made from the adult’s and not from the child’s best interest
point of view.
Anyhow, we consider that a true regard to the child’s rights
in this field, as well as in other matters concerning him or her,
is only possible if we take seriously into account the participa-
tion of the child in the decision-making process, that is, the
child having sufficient understanding and in any case when he
or she reach a minimum age, should have the opportunity to
take decisions, which means that he or she should bearing the
consequences that are attached to his or her decision. In our
opinion, this is nowadays the only way to bring up children in a
global world. This is the only way to make that children be-
come adults’ citizens, when they realize the consequences of
their decisions and take responsibility for them. In conclusion,
the question deals with the respect of the fundamental rights of
the child that all European legal instruments recognize.
Adoption of the Step-Child
The adoption by the spouse or partner of the legal parent of
the child, whether legal requirements are fulfilled, is in whole
Europe a recognized choice in order to attribute parental re-
sponsibility to the step-parent. As known, give a child for adop-
tion supposes that the personal relationship with the other (bio-
logical or adoptive) legal parent ends up. In all European coun-
tries, the consent of the legal parents, the consent of the
step-parent and the consent of the child, whereas he or she has
sufficient understanding and a minimum age, is required. When
adoption is given the step-parent becomes “legal parent” and
his or her legal status is the same as the other child’ legal parent
28See “The State directly recognizes parental responsibility to the step-pa-
rent” and “The State directly recognizes the right of the step-parent to re-
quire the assignment of parental responsibility” of this paper.
However, we could find some differences between European
legal systems relating the adoption’ requirements. Indeed, in
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Belgium, Denmark, the Netherlands, Sweden and Germany it is
required that step-parent and the legal parent of the child are
married. As a reminder, homosexual marriage is at the present
admitted in Spain, Belgium, France, Denmark, Sweden, Nor-
wegian, Portugal, Iceland and The Netherlands (Navas Navarro,
2006). The Parliament of England is currently discussing the
possibility to admit homosexual marriage as well.
In Spain, England, Wales and Scotland the homosexual or
heterosexual civil partner of the child’ legal parent is legally
entitled to adopt the child (Boele-Woelki, Ferrand, González
Beilfuss, Jänterä-Jareborg, Lowe, Martiny, & Pintens, 2007). In
the opposite, Austria, Lithuania, Portugal, Italy and Czech Re-
public accept only that the child should be adopted by the het-
erosexual civil partner of the child’ legal parent, whereas Bul-
garia, Greece, Hungary, Poland and Russia do not have a spe-
cific rule concerning such a requirement (Boele-Woelki, Fer-
rand, González Beilfuss, Jänterä-Jareborg, Lowe, Martiny, &
Soft Law: European Principles of Family Law
Regarding Parental Responsibilities and Model
The content of the parental responsibility regardless of
whether the holders thereof are the legal parents of the child or
third parties, including the step-parent, is provided by the
EPFLRPR 3:19, which settles that:
“(1) The holder of parental responsibilities should provide
the child with care, protection and education in accordance
with the child’s distinctive character and developmental
The step-parent as a holder of parental responsibility is, in
particular, contemplated in EPFLRPR 3:2 (2) (b) as a “person
other than the child’s parents having parental responsibilities
in addition to or instead of the parents”.
This EPFLRPR shall be supplemented with the EPFLRPR
3:9 whereby third persons may have parental responsibilities
“in whole or in part”.
The EPFLRPR have admitted the above described two
European models of having parental responsibility by the step-
parent. Indeed, EPFLRPR 3:17 states that the step-parent is
entitled to have parental responsibility in “addition to” or “in-
stead of” the legal parents. On the contrary, EPFLRPR 3:18
settles the right of the parent’s partner or spouse living with the
child to take part in decisions with respect to daily matters as an
exercise of some of parental responsibilities, but not as a holder
as such. This participation of the step-parent is subjected to the
fact that the other parent having parental responsibilities does
Meanwhile, Article 3(28) MFC on parental responsibility of
third parties, warns as the EPFLRPR that only the competent
authority can vest parental responsibility in a third party, “in
addition to” or “instead of” legal parents 1) the child has lived
with this third party for more than 3 years and the third party
request parental responsibility or 2) as a measure of child pro-
tection (i.e. in the event of risk of physical or psychological
The attribution of parental responsibility to the third person,
that is, to the step-parent settled in lit. a is in accordance with
the aforementioned exposed model whereby the State assigns a
right to the step-parent in order to request parental responsibil-
ity. Hence, the spouse or partner of the legal parent living with
the child is free to require or not parental responsibility. Having
parental responsibility is depending only on his or her free will.
In the comments on Article 3(28) MFC it is highlighted “the
equality of a factual parent-child relationship with that of a
legal one” (Schwenzer, 2006). On the opposite, the attribution
of parental responsibility settled in lit. b is made directly by the
State. However, in this case because it is made as a protection
measure of the child, it is likely that the third person vested
with parental responsibility is a public institution or at least a
guardian ad litem.
Both academic legal instruments, when regulating parental
responsibility make provisions by which, first, the best interest
of the child principle (EPFLRPR 3:3, Article 3(1) MFC) should
be regarded as a paramount consideration in all matters con-
cerning the child’ life, and, second, due appreciation should be
given to the views expressed by the child depending on his or
her age and maturity (EPFLRPR 3:4, Article 3(2) MFC) and,
third, that the right of the child to be heard and to consent
(EPFLRPR 3:6, Article 3(3) MFC) should be respected.
In conclusion, step-families are socially and legally accepted
in whole Europe. Nevertheless, through the national legal sys-
tems and the soft law we can see that the adults’ rights are set
above of those rights of the child (Ferrer Riba, 2010). In other
words, the concern both the national lawmakers and the aca-
demic works is how to legitimate the decisions taken by the
adults in relation to the child’ personal life. In fact, the best
interests are that of the adults rather than that of the children.
After this presentation of the step-families within the legal
framework of Europe, let me expose some concluding observa-
The Future of the Step-Family in Europe
As appointed by the OECD (OECD, 2012), which takes also
into consideration the figures provided by EUROSTAT, re-
garding the structure of households for the future years
2025-2030, it should be foreseeable that the number of house-
holds with a sole adult person29, with one sole parent living
with their children30 and the LAT (“living apart together”)31
couples become more relevant. This future picture of house-
holds’ structure is corresponding to the EUROSTAT forecasts,
whereby there is actually and will be in the future a lack of
intergenerational change (Eurostat, 2012). Thus, there is a small
social room for step-families in the coming future.
The forecasts for the future of household structures of Euro-
pean citizens, provided by these official agencies, are in accor-
dance with the “hamlet theory” described by anthropologists
(Koch, 2009). Indeed, these have suggested that persons have
reduced emotional rooms in their lives, at least, two relevant
personal relationships, what means that once one of these
rooms has been covered, even though it becomes free because
of the breakup of the personal relationship, this is not covered
again by someone else. Consequently, new personal relation-
29It is expected that in Europe the largest increase will be seen in England
(60%) and France (75%).
30Households with a sole person would increase between 22% and 26% in
Austria, Holland and Switzerland.
31In particular, in Germany and Finland.
(http://www.oecd.org/social/socialpoliciesanddata/41920080.pdf). Last check-
ed: of 5 A
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S. N. NAVARRO
ships will be stated for a shorter period of time than those of
relevant emotional meaning and the significance will be also of
a minor importance.
In the light of these thoughts, it should be feasible that one
person would have just one step-family. His or her personal
emotional rooms will be completed with the original family and
the second family. This is the reason why in the future instead
of step-families they will raise the household structures that we
have exposed above.
When this is the future, we should wonder about the need of
a legal regulation of the step-families at all and if our answer is
“yes, we need it” then we should see if it could be possible to
approach the matter from the child’s rights perspective.
Direct Application of the EU Charter Both by the
European Union Justice C o ur t an d Nationa l C o ur ts
As said by Article 6(1) of the TEU of Lisbon:
“The Union recognises the rights, freedoms and principles
set out in the Charter of Fundamental Rights of the European
Union of 7 December 2000, as adapted in Strasbourg, on 12
December 2007, which shall have the same legal value as the
And by Article 52(2) EU Charter in the last drafting of 2010:
“Rights recognised by this Charter which are based on the
Community Treaties or the Treaty on European Union shall be
exercised under the conditions and within the limits defined by
The EU Charter has the same legal recognition within the EU
as the Treaties, unless some exceptions concerning Poland and
the United Kingdom are made. Thus, both national Courts and
European Union Court of Justice shall directly apply the fun-
damental rights and freedoms stated by the EU Charter. Since
2010 there is no objection to this direct application when the
EU Charter shall be considered instead of to be regarded just as
an element of inspiration of the whole European Union and of
the national legal systems.
What is being suggested here is that direct application of the
EU Charter means that, when judging a case, in which funda-
mental rights of the child enter into conflict with those of the
adult (Stalford & Drywood, 2011), the EUCJ, in accordance
with the proportionality test, could develop a body of judg-
ments (jurisprudence) from the rights of the child viewpoint32.
The ECtHR has settled the meaning of the proportionality test,
that is, limiting a fundamental right is only legally possible
when it is appropriate, necessary and proportionate to a legiti-
mate aim (i.e, Ashingdane v. UK, A/93, 1985, 7 EHRR 528
para.57). Accordingly, Article 52(1) EU Charter provides that:
“Any limitation on the exercise of the rights and freedoms
recognized by this Charter must be provided for by law and
respect the essence of those rights and freedoms. Subject to the
principle of proportionality, limitations may be made only if
they are necessary and genuinely meet objectives of general
interest recognized by the Union or the need to protect the
rights and freedoms of others”.
Hence, it is legally possible to limit the rights of the step-
parent if conflicting with those of the child, when these limita-
tions are aimed to objectives of general interests. As a reminder
the EU has stated that one of these strategic objectives that
deserves absolute priority is to protect and promote the rights of
children in Europe33. Therefore, we agree with Eekelaar when
he affirms that: “children are the innocent victims of the way
the adults have conducted their lives. Therefore the need to
weigh the respective interest according to the principle of pro-
portionality must result in the children’s interests being privi-
leged or prioritized over the others” (Eekelaar, 2006).
In conclusion, the bedrock for the direct, vertical and effec-
tive application of children’s rights by the EUCJ has been le-
gally settled. The EUCJ should go forward and develop a solid
and effective case Law to ensure the promotion of children’s
rights (Stalford & Drywood, 2011), including effective meas-
ures, under Article 47 EU Charter, whereby:
“the fundamental right to effective judicial protection con-
stitutes: i) general principle of Community Law”.
Prospective Regulation of the Step-Family in Europe
As we have already exposed, there are some existing differ-
ences between the European national legal systems when at-
tributing parental responsibilities to the step-parent. Therefore,
it will be difficult to find a common core for regulating it at
European level. For instance, the scholars that have drafted the
EPFLRPR, have decided to introduce the two aforementioned
patterns of having parental responsibility, among the different
European jurisdictions, by the step-parent that exist (Boele-
Nevertheless, there is a strong feeling that step-family should
be legally strengthened in some way and the adult should be
deserved some kind of legal protection when taking part in
decisions concerning matters that affect the child’ life.
In accordance with these two statements and keeping in mind
the small social room for step-families in the future, in our
opinion, the legal recognition of the “duty” of the step-parent to
do what is reasonable in all circumstances of the case for the
purpose of safeguarding or promoting the child’ welfare, in a
future harmonization of the European legislation, when he or
she is currently living with him or her, would be enough. This
“duty” could be drafted as a “general clause” without attribut-
ing parental responsibilities to the step-parent. This “general
clause” could settle within either the section of a Family Act or
of an Act regulating children’s rights instead of being a section
concerning parental responsibility. Seen as a “duty” the step-
parent is not free to act or not, he or she shall act always “under
the circumstances of the case”.
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