International child abduction case leads to indirect recognition of LBGTQ+ families in Greece (?)

by | Nov 28, 2023

Rainbow family breakdown: International child abduction case leads to indirect recognition of LBGTQ+ families in Greece (?)

While a huge debate is going on right now in Greece regarding marriage equality for same- sex couples, which will inevitably lead to their right to adoption and the capacity to legally establish their families, the Greek courts keep refusing the recognition of LGBTQ+ families established abroad, alleging opposition to public order. However, recently there has been a courageous turn in Greek case law, arising from an international child abduction case.

In particular, the Supreme Court with its decision no. 136/2022 validated the appeal court’s decision, ruling that, although the movement of a child by her non- biological mother from the UK to Greece without the consent of her biological mother, left behind in the UK, where the family was residing, was wrongful pursuant to the applicable English law, the return of the child to England would consist psychological harm and place the child in an intolerable situation. Therefore, the court ruled that there was no obligation to return, regardless of the fact that Greece does not recognize same-sex couples’ parental rights, since the applicable law is the law of the state in which the child was habitually resident immediately before the removal (article 3a of the Convention).

In the context of the same case, a later UK Court’s decision granting sole custody to the non- biological mother has been recognized in Greek legal order by the decision of the Court of Appeal of Thessaloniki 159/2022 holding that “the model of the family, whose composition of its members is different from the established ones, does not challenge the dominant social perceptions because ultimately this difference cannot be to the detriment of the real interest of the child, while Greek society is now sufficiently prepared to face and manage such situations and sufficiently progressive to accommodate harmoniously within its ranks and to tolerate”. This newsletter aims in underlying the significance of the case for the recognition of LGBT+ families in Greece and the implications this recognition has in the context of international child abduction.

The facts of the case:

The litigation parties, the applicant, an American citizen, and the defendant, Greek- American citizen, registered their partnership in the UK on 20.08.2013 and entered into marriage on 10.01.2015. On 23.09.2013 the applicant gave birth to their daughter, conceived with the sperm of an unknown donor. The relationship broke down in 2016 and the parties brought the custody of the child before court. After a high-conflict custody dispute, the defendant was granted parental responsibility of the child in virtue of a court decision dated 29.03.2016 and she became the resident parent (this ruling was validated also by a later decision on 3.02.2017 since the applicant parent had multiple times abandoned their daughter in the past). The defendant succeeded in issuing a further decision granting her the parental responsibility of the child over education matters, including the right to define the place where the education should take place, and designating that the child should live with her, but she could not move the child outside of the UK without the consent of the other party.

Οn 28.09.2017 the defendant, since she received a job offer in Greece, brought a motion to court requesting that she should permanently move with the child to Greece. The request was granted with the as of 25.07.2018 court decision, which also regulated the contact rights of the applicant with the child during school holidays. However, before the issuance of this decision, in the beginning of year 2018, the defendant moved the child to Greece without the consent of the applicant. The defendant got a job in Greece as an English teacher and the child started attending kindergarten and later the first grade of primary school in Thessaloniki.

The applicant requested the return of the child to the UK pursuant to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The Court of First Instance wrongfully ruled that the applicant did not have a right to co-decide on the child’s place of residence and thus the Convention was not applicable. The Appeal Court, with the decision no. 145/2020, overturned this decision, holding that the applicant had a right to decide the child’s residence, yet it followingly dismissed the application ruling that the child had been adjusted to Greek society for a sufficient period of time and taking into account the child’s strong refusal to return to the UK. The same ruling was upheld by the Greek Supreme Court (decision no. 136/2022).
In the meanwhile, the defendant asked for the recognition of the UK court’s decision granting her the right to move with the child to Greece, leading in the issuance of the no. 159/2022 decision of the Thessaloniki Court of Appeal mentioned above.

Indirect recognition of the LGBTQ+ families in Greece.

The Greek courts’ decisions both held that the fact that Greece does not recognize same-sex couples’ parental rights is irrelevant to the case, since the right to ask for the return of the child is seen under the light of the law of the child’s place of habitual residence before the removal, in that case the UK law. The court of first instance reached so far as to rule that the applicant, who in that case was the biological mother, had no right to ask for the return of the child and that the movement of the child to Greece without her consent was valid. The Court of Appeal and the Supreme Court both upheld that even if the biological mother had the right to ask for the child’s return, the will of the child to stay in Greece with her non-biological mother prevailed and any return in the UK would cause a psychological harm to the child and place it in an intolerable situation, meaning that the article 13b of the Convention was in place and therefore there was no obligation to return the child under the Convention.

Even further, in the context of the same case, the Court of Appeal ruled that the UK court decision assigning custody to the non- biological mother was valid and dismissed the other party’s claim that such recognition would be against Greek public policy (as Greek courts have repeatedly ruled in cases of LGBTQ+ families requesting to recognize their families established abroad in Greece). The court reached held that the non-recognition would actually be against Greek public policy, as it would mean that the child would be left without any legal protection and would be forced to return to the UK against her best interest.

As already mentioned, this decision is in contradiction with the Greek case law regarding the recognition of the LGBTQ+ families established abroad in Greece. It is remarkable that the Athens Court of Appeal decision no.2204/2023 dealing with the recognition of an adoption established in Germany (the same-sex partner of the biological mother has legally adopted her children, conceived with sperm donor), held that, although the recognition of the adoption decision is against Greek public order, the decision could be recognized pursuant to the children’s best interest, if there were a concrete reason for doing so, such as the break up of the couple or the death of the biological mother (!). This is clearly a grotesque attempt to “harmonize” the previous case law with the Thessaloniki international child abduction case study. A cassation appeal has been lodged and the case remains to be heard before the Greek Supreme Court.

Implications of the case on International Child Abduction between Same- Sex Parents.

The no. 136/2022 decision of the Greek Supreme Court dealt for the very first time with an international child abduction case between same-sex parents. The Court stated explicitly that the 1980 Hague Convention is applicable “even if the parent is not recognized in the Greek legal order as such, since the provisions of the Convention do not set as a requirement that the parent abducting the child must be recognized as a parent pursuant to the law of the state where the child was illegally moved”.

In doing so, the Supreme Court, rightfully, leaves the concept of opposition to public policy out of the equation in international child abduction cases. It is true that if the lack of consensus between contracting states regarding the recognition of same-sex parenthood could be associated with the “fundamental principle” clause of article 20 of the Convention or in any other way impede the application of the Convention, it would seriously damage its scope. This also creates a good guideline for other international family disputes, where the status of the person as parent of the child is arising as a preliminary issue, i.g. in a maintenance obligation case, where the child-beneficiary legally represented by the one parent, should not be impeded in the execution of the maintenance obligation, in case that the other parent has moved in a state where same-sex parenthood is not recognized.


Read more about child relocation and child abduction in Greece.

Read more about child abduction.

Read more about the author: Elias Yiannatsis from Elias Yiannatsis Law Firm in Athens, Greece.

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