CJEU issues landmark ruling strengthening the rights of rainbow families

In an important victory for the LGBTQ+ movement in Europe, on 14 December 2021 the Court of Justice of the European Union (CJEU) has issued a landmark ruling that will be celebrated by LGBTQ+ families and their supporters all over the European Union. The Court has held that a parent-child relationship established in one Member State shall be recognised in all other Member States without exceptions, and most importantly, regardless of the Member State’s stance on same-sex marriage. This is based on the CJEU’s decision that the right to freedom of movement is guaranteed to all citizens under the Treaty on the Functioning of the European Union (TFEU) and shall not be curtailed or hindered simply because a child has same-sex parents.  

Background 

The case concerns a child whose mothers are a Bulgarian national and a UK national resident in Spain. While the Spanish authorities have issued a birth certificate recognising the parenthood of the mothers, the child was unable to obtain her Bulgarian identity documents. Bulgaria sought to justify its refusal to provide Bulgarian identity documents to the child on the grounds that (i) it does not recognise same-sex marriages and, (ii) without evidence of a biological connection between the Bulgarian mother and the child, it cannot issue a birth certificate and thereby recognise the parent-child relationship between them. Bulgaria referred the case to the CJEU for a preliminary ruling in November 2020.

The case was heard by the Grand Chamber of the CJEU on 9 February 2021 and saw supporting interventions made by the Netherlands and Spain as well as the European Commission.  By way of an important positive development, on 15 April 2021, Advocate General Kokott issued her opinion which concluded inter alia that regardless of the status of same-sex marriages in Bulgarian domestic law, Bulgaria is bound to issue the child identity documents to enable her to exercise her fundamental rights under the TFEU.

We have in our previous blog posts analysed in detail the background of the case here and the Advocate General’s opinion here.

On 14 December 2021, the CJEU issued a seminal ruling recognising that a parent-child relationship established in one Member State shall be recognised across the EU

The CJEU in its decision issued on 14 December 2021 took this opportunity to send out a strong message in favour of protecting the parent-child relationship in LGBT families. While acknowledging that Member States are entitled to determine their individual stance on the legality of same-sex marriages and the parenthood of same-sex couples, the CJEU stated that this competence cannot hinder the fundamental rights guaranteed to all citizens under the TFEU. Crucially, the Court held that a Member State is obliged to issue an identity card or a passport to a child who is a national of that Member State and has same-sex parents as recognised by another Member State. The Court specifically held that this recognition of the parent-child relationship in the context of the child’s exercise of her rights under Article 21 TFEU “does not undermine the national identity or pose a threat to the public policy of that Member State” (Article 4(2) TFEU).

The CJEU recognised that the Spanish authorities have lawfully established a parent-child relationship between the child and her mothers through the issuance of a birth certificate and held that all other Member States are obliged to recognise such relationship as evidenced by the birth certificate.

In a major victory for rainbow families across the EU, the CJEU expressly recognised the rights of the child under Articles 7 and 24 of the Charter of Fundamental Rights and held that her exercise of the right to move and reside freely in the territory of the EU cannot be made “impossible or excessively difficult in practice” solely because her parents are of the same sex. Further, the Court drew an analogy with the famous Coman case (C-673/16) to hold that a child whose birth certificate designates a Union citizen as a parent must be considered by all Member States to be a direct descendant of that Union citizen regardless of her parents’ sexual orientation.

Accordingly, the CJEU held that a Member State of which the child is a national is obliged:

• to issue to the child an identity card or a passport without first requiring a separate birth certificate to be granted by its national authorities, and
• to recognise a document from the host Member State that records the parent-child relationship and thereby permits the child to exercise, with each of her parents, her right to freedom of movement across the EU.

The CJEU ruling is a significant milestone for LGBTQ+ families 

The decision of the CJEU represents a major turning point in the recognition of rights of rainbow families in the EU. The Court through this judgment has upheld the fundamental rights of children of same-sex parents where at least one of them is an EU citizen irrespective of the stance taken by individual Member States on the issue of same-sex marriage and parenthood. This is indeed a welcome development for same-sex parents and their children in the EU, and one that we hope will be replicated across jurisdictions around the globe. This important victory is a further step in the fight for equality and justice for the LGBTQ+ community.

We are excited to see the fruits of our partnership with ILGA Europe, an international non‑governmental organisation focussed on LGBTQ+ rights in Europe. Together we provided legal and strategic support in this case. Please click here to read ILGA’s press release on this landmark judgment.