E-15/24 A v B
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Deadlines: Motivation ministry: 16 July 2024 Written observations: 2 September 2024
Keywords: Children Act; rights of residence; free movement of workers
Subject: - Agreement on the European Economic Area (EEA): Article 28; - Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.
Facts of the case: The case concerns person ‘A’ and person ‘B’, who share the responsibility for their child ‘C’. A and B have been separated since 2022. A now wants to relocate to Denmark with C, to find employment and start a family there with her new partner. In accordance with the national law (under ‘the Children Act’), A has to either get the permission from the other parent to relocate, or take legal action and ask the court to consent to the relocation. This consent is needed for relocations outside of Norway. No consent is needed from the other parent in cases of relocation that happen within Norway.
The central question of this case is whether the difference in treatment between situations where the relocation is to other EEA states, and situations where the relocation is within Norway, is in conflict with the EEA Agreement. It is questioned by the court of appeal whether the rights that are granted by Directive 2004/38 is to be interpreted to also extend to national provisions regulating a parent’s right to relocate to another EEA state with a minor child without the other parent’s consent. The court of appeal is requesting the EFTA Court to consider whether the difference in treatment established by the Norwegian Children Act is compatible with A's rights, and potentially, the child's rights, pursuant to Directive 2004/38.
Request for an advisory opinion: Firstly, is it, and if so, under which circumstances is it, compatible with the rights of the parents and the child under Directive 2004/38/EC that national legislation on the relationship between a child and its parents stipulates that a custodial parent, in situations where the parents have joint parental responsibility and the non-custodial parent does not consent to the relocation, cannot relocate to another EEA state with the child without initiating legal action and getting the court's permission to relocate, when the same parent would have the right to relocate domestically with the child without obtaining the non-custodial parent's consent or permission from the court?
Secondly, is it, and if so, under which circumstances is it, compatible with Article 28 of the EEA Agreement that national legislation on the relationship between a child and its parents stipulates that a custodial parent, in situations where the parents have joint parental responsibility and the non-custodial parent does not consent to the relocation, cannot relocate to another EEA state with the child to take up employment there without initiating legal action and getting the court's permission to relocate, when the same parent would have the right to relocate domestically with the child without obtaining the non-custodial parent's consent or permission from the court?
Cited (recent) case-law: -
Policy Area: JenV-DMB;
