International Scientific Conference on the Protection of Family in the Legal System (12/5)

The title of my presentation is The Road Toward Modern Family, Our Experience, so how was the development and how was rethinking of family in Croatia. We had, I could say we really had turbulences in Croatian family law in 21st century, it was very tough. In 2003, we had a new Family Act, a very modern one, according to us. It was amended in 2007, and it showed some continuity in historical development, also considering the notion of family. And then, the reform of 2014 changed the paradigm, because it was influenced by the principles of the European Commission on Family Law and European trends. And also in 2014, it was enacted the Act on Same-Sex Partnership. Thank you very much. It granted to formal and informal same-sex unions equal position in the whole legal system as marriage. In 2014, the Constitutional Court suspended the Family Act due to so many inconsistencies, but it wasn't pronounced that it is against constitutional norms. But it had so many legal holes and unclearness, some of it you can see on your screen. And then it was enacted New Old Family Act 2015, New Old because it kept so many solutions like the Family Act of 2014. When the government changed, it constituted a working group that in 2017 proposed a new Family Act, and it was really dramatically withdrawn by the Premier's decision during a public governmental session because of the definition of family, and it is why it is so interesting for our conference. This proposed definition of family was really narrow I have to admit. In terms of this act, the family consists of mother, father and their children, mother with a child or father with a child, although do not live together, and other relatives who live with them. So, spouses were not even marital, considered to be a family and people really felt offended. Thank you very much. Maybe it was, I now regret the political mistake to try to propose such definition, but because government was not ready to accept critics. So, nevertheless, this definition was meant to serve only for the purposes of the Family Act, because we also had many other acts and legislation that defines the status of a family member, and one of them is the Act on Same-Sex Partnership that pronounces family life, the relationship between two persons of the same sex, as family life. And, for example, there are so many other acts. The Act on Protection Against Violence in Family in 2019, as family members also concerns to be a wide number of persons. Also people who live in same household, not only relatives. So we had the concept that the child is the constitutive part of a family and also the kinship. And now it's the question of who can be the mother and who can be the father. It's, as usual, motherhood is established by presumption. Thank Since 2014 it's presumptio iuris. Until 2014, we had Presumptio Iuri, Sede Iuri, because we tried to stress... you Transcending the political decision very and legal tendency that surrogate motherhood is not permitted. much. Though we have people who use it abroad a little bit later about it. Also motherhood can be established by judicial decision and these are two main principles. We had also till 2014 possibility to recognize the motherhood. It's quite rare in other family law national systems but it was Thank you very much. It had some historical reasons. While birth registers were destroyed, also during Thank you very much. homeland war, and it was easier there to establish a motherhood than to go through court proceedings. And it doesn't serve its purpose anymore. And father status is also by, can be determined by Presumptio Iuris. Also by recognition, interesting also for a child conceived in wedlock since 2014, it applied German system and by judicial decision. So key questions are who may be a parent and who may be a holder of parental responsibility. So there are two different legal institutes for my opinion as well. So a person who is entered as a mother or a father, of course, into a birth registry. And I also wrote in my country report that also included some other aspects, international aspects. It is not very well known, I was a member of a commission who drafted a recommendation on the rights and legal status of children and parental responsibilities in Council of Europe 2011. It was an ad hoc commission and there was a principle too for the purposes of this recommendation. Parents mean the persons who are considered to be the parents of the child according to national law. Quite, it was quite controversial in this time. And although this draft recommendation and reached a committee of ministers, almost, it was stopped by lobbying, as I heard later, of Vatican and Russia. So because this, because of this freedom to Thank For each state to consider, to determine who will be the parent. Ten years later, I don't know how it will work. you And no recognition in Croatia, very there is no recognition of a foreign registry of birth if a single man or two men is required to be entered into a birth registry in Croatia much. because the Ministry of Administration requires medical documents who is the mother. of this child, but I think, as far as I know, that this will be also challenged. And who may be the holder of parental responsibilities? We also, of course, have Brussels II bis Convention, who defines the holder of parental responsibility, and also we have Convention on Contacts. But we also managed to keep restrictive definition because they may be biological parents and adoptive parents. In the solution of Family Act 2014, there were also mentioned other persons, physical or legal persons. And as academics challenged this, because we said that in the core of notion of parental responsibility must be the parents. So we managed to keep this, to let it out from our family, like from our... National legislation also the same government enacted proposed it and later parliament enacted. Who may be a parent by a Croatian law biological parents they may be a child may be born naturally or by medically assisted procreation so you know it helps people who can become parents. Beneficiaries of medically assisted procreation may be a woman and a man who are in marriage or in a stable non-marital union, A woman not living in a marriage, non-marital union or same-sex union whose treatment of infertility failed or has no prospect of succeeding. That means that social, so-called social infertility isn't reason to allow a woman to use medically assisted procreation, I mean a donor. . Although in practice, I think it's a gray part. So physicians allow a woman to use, I mean, not to use in Croatia because it is impossible because of some other reason, not because of legislative reason, but they allow them to go on under financing of... of health funds to Macedonia or some other countries like Czech Republic and so on. And also, adoptive parents may become parents, they may be a woman and men who are in marriage or in a non-marital stable union, a person who is married. ...upon consent of the marital or non-marital spouse and a person who is not married, but this is exceptionally if this is in the best interest of the child. We tried to, in a proposal 2017, that was a little bit conservative. To restrict the possibility for non-marital couples to adopt a child only if there is in the best interest of the child because we try to promote marriage and the second reason is according to practice of European Court for Human Rights. Thank you very much. It is a fear that same effects or effects of that have legal effects that enjoy heterosexual couples may be applied on same-sex couples not only in other legal branches but also in in field of adoption. Later we'll see and are also in field of medical assisted procreation. Um It's interesting to know that stepmother and stepfather very have right to contact, right to make everyday decisions with the consent of the parent, if he or she lives with a child in the family, much. the stepfather or stepmother, and right to maintenance. And they have no parental responsibility at all unless they are entrusted if a parent is not present So they can be entrusted like any other person. They have no privileged position in family law system. towards children. Parents, same-sex partners have all these rights and also, but don't have right to maintenance. It was a lack in the same-sex act. He has no duty to maintenance, his same-sex parent's child neither has right to receive maintenance. The Same-Sex Partnership Act introduced two forms of parental responsibilities. One is right to exercise parental responsibilities. It can be done by a court decision or entrusted by biological parents or parents who alone or both exercise parental responsibilities. It can be together with parents or instead of its parents by court, of course, and if it is instead of parents and it's also not quite clear that because they're not prescribed reasons for shared parental responsibilities by biological parents and same-sex partners. And because it's quite different and in this part is the same-sex partnership act Thank you very much. contrary to family act because only parents can exercise parental responsibilities according to Family Act enacted in 2015, one year later. And also, only if parents agree, they can share parental responsibilities. It is not possible if there is no agreement. And here, it's not prescribed as this. And also, it was introduced, in fact, Adoptio Aminus Plena, a so-called partner care that has all effects as adoption. And It's only another, another name, why I labeled my title, the title you of my lecture towards modern family, very because the Constitutional Court much. in 2020 wrote that Thank you very much. same-sex couples have to be allowed to foster, to become foster parents. And after a couple of years of legal fight, these two gentlemen managed to become foster parents for two children. And also, they succeeded. To go to procedure that allow them to get the license to adopt. So a certification that are applicable as adopters. Although this is contrary to the Family Act, because same-sex couples are not allowed to adopt a child, neither together, nor a person who lives in the same-sex partnership can adopt the child. That was the rule of the Administrative First Degree Court. Because it followed the argumentation of constitutional court that courts have to interpret legal norms in the spirit of human rights. I haven't a chance to see this first degree decision, but I doubt if there are mentioned children's rights. And so now, so far as well, these two gentlemen are not finally, but prospectively will be allowed to also get the license to adopt. That doesn't mean that they have the right to adopt the child because there is not enough children. For heterosexual couples, there are six heterosexual couples in this moment waiting for, For an adult. concurring for one child to adopt in Croatia, like in many other developed countries. In this, um, in this... Ma'am. It's also interesting that the European Commission started consultations on the topic of recognition of parenthood between the EU member states. A colleague from our chair got an invitation from a consultation body to take part in this It's an initiative on recognition of parenthood between member states. And this is something that raises question, if you have one regulation in the national state, what does it mean if somebody gets a parental status abroad and then, no, what can we do then? We had many, we used many words on parenthood, but at the end of this presentation, I would like to ask myself and also everybody where disappear children, because we first had since European, since Convention on the Rights of the Child, pedocentrical world. Now, when... Now, it seems to me that the rights of adults are... They are wealthier, so they gain more priority, and this discussion should be continued, okay, accepting the social reality, there are many so-called rainbow families, and we have to regulate these relationships somehow, but we shouldn't forget children in these discussions. And I didn't have a look how much time I used it. I hope you could hear me. Thank you very much for your attention. And I'm looking forward to discuss later, because prior members opened so many interesting questions. This was very interesting today, this conference. Okay. Thank you. First, I admire family-friendly Hungary. Also, due to legal system and to demographic measures, I've already read about this and I'm a little bit jealous, I have to say, although I have only one child, myself. Thank you very much. But it's a pity that Professor Chasso is not here. He had a very interesting approach towards the difference between right to family life and family. That is what, once I argued with our judge, Professor Weitsch, she was a judge in Strasbourg, because it seemed to me then that if somebody is entitled to write a family life, that doesn't mean that he's a part of family. It's maybe just linguistic acrobatics, but But Because I thought like foster parents had right to family life that was accepted in Strasbourg, but they're not family in a legal way when we talk about constitutional meaning called family. This is something maybe we could discuss because that leads to another thought that we need to take care of legal terms we use. For example, in Croatia, we made the difference between heterosexual and homosexual partnerships, de facto, because they are different names for purpose, because extramarital unions are a constitutional term, but in our constitution from 1990, they are not mentioned to include homosexual unions as well, so we have another term, homosexual same-sex partnership. I don't advocate for restricting mutual rights of same-sex partners in the field of their mutual relationship and regarding effects in the public sphere, but there is also a difference. And I would also like to suggest, it was an interesting link, it was very interesting presentation of our colleague who is a psychologist, sorry for not knowing your name, Professor Vincent Aissaba, now I see, thank you very much, how to promote marriage to be more stable. For example, we gave up of trying to preserve marriage before divorce in our legal system in the act of 2014 and 2015, and I have some statistical data, when there was such an institute In our legal system, there are some couples. uh gave up of um of divorce so it has some it was some tool uh specifically in um in the country where people are not very keen of psychological help uh like family therapy and and so on so it was um knock knock uh please let's try to to solve your marriage and also i would like to include Maybe there is a huge problem of violence in family. We don't need to. To protect family, as such, in any case. So it would be also an interesting topic for us family lawyers as well, not also for our colleagues that are professors of criminal law. And also, I find in demographic sense, The parents' alimony is extremely important. are 100% secure that if their marriage or union, this part, crashes, that children will be economically safe. And this is, as far as I know, a huge problem in all countries. Also in Western countries, we try to introduce something like a money fund, subsidized by the state. But these are just small, small pieces of goodwill for the state, and it doesn't work as well as it should. So, thank you very much for your... Patience with all us professors who constantly have some questions and maybe sometimes don't understand as me as well everything what is required for me. But I'm so happy that I had chance to cooperate and this cooperation will continue. I feel this very exciting and also helping me in my professional development. I always forget how old I am. So thank you, everybody, especially also to the Institute.