ELI’s Report on Enhancing Child Protection in Matters of Filiation

On 12 January 2026, the European Law Institute (ELI)’s Report on Enhancing Child Protection: Private International Law on Filiation and the European Commission’s Proposal COM/2022/695 final has been formally approved by ELI Fellows.

The Report was prepared by a team consisting of Claire Fenton-Glynn, Cristina Gonzales Beilfuss, Fabienne Jault-Seseke, Martina Melcher, Sharon Shakargy, Patrick Wautelet and Laima Vaige, under the leadership of Ilaria Pretelli and Susanne Gössl.

The Report examines the Commission proposal on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and on the creation of a European Certificate of Parenthood (COM/2022/695 final), which was commented on the blog here. While preserving the Proposal’s core vision and framework, the Report recommends strategic refinements that strengthen the Proposal’s alignment with the EU acquis, foster deeper European integration and enhance the protection of children’s fundamental rights.

In addition, the Report broadens the Proposal’s initial emphasis on children’s rights and LGBTIQA+ equality by incorporating a comprehensive women’s rights perspective. This approach, which results in the adoption of robust safeguards for protecting the rights of children and women, seeks to address the reluctance of certain Member States to accept filiation bonds based on contractual relationships. Such reluctance stemmed from negative experiences involving mass violations of women’s and children’s rights that occurred in the context of international adoptions.

More generally, the amendments proposed in the Report have been designed to address reservations expressed by Member States regarding the Proposal, particularly their concerns about compliance with the principles of subsidiarity and proportionality.

The Report rests on three strategies.

The first strategy builds on the universal rights of children and on the principle of non-discrimination of children on the grounds of the circumstances surrounding the child’s birth.

This strategy underpins the insertion of a new Article 5 on the rights of the child in connection to filiation. In line with the UN Convention on the Rights of the Child, which is explicitly mentioned thereunder, Article 5 emphasises the right of the child to status continuity, the right to know, and request access to, her origins, and the right to be heard.

The same strategy justifies the introduction of a general jurisdiction ground centred on the child and her habitual residence (Articles 6 and 8), complemented by alternative jurisdiction grounds for the ascertainment of filiation (nationality of the child, habitual residence or nationality of the putative parent), and a ground for the constitution of filiation in pre-birth situations (intended habitual residence of the child, subsidiarily, habitual residence of one of the intended parents), with a forum necessitatis remaining available as a safeguard.

Similarly, the Report introduces a rule on applicable law having as connecting factor the habitual residence of the child (Article 17), with the clarification that where the latter place cannot be determined, regard should be had to the intended habitual residence of the child. If that cannot be established either, the law of the place having the closest connection with filiation will apply.

The choice to use the more child-centred word of ‘filiation’ instead of ‘parenthood’ appears to reflect, in the terminology, the child-focused strategy just described.

The second strategy fostered by the Report is geared towards non-discrimination of parents based on their sexual orientation. In this respect, the Report seeks to shift the focus from the couple claiming joint parentage to the child’s relation with each of the parents separately, regardless of the number and quality of the other persons involved in the child’s upbringing.

This strategy underpins the Report’s focus on the child’s habitual residence as the main connecting factor for jurisdiction (Articles 6 and 8) and applicable law (Article 17).

It also underpins the Report’s deletion of the distinction between acts with binding legal effects and acts with non-binding legal effects (Article 44). The Proposal focuses instead on the category of authentic acts with evidentiary effects, which usually stem from all kinds of authentic instruments.

The third strategy consists in preserving private international law’s primary goal to merely coordinate – and not harmonise – national family laws of Member States. National substantive laws differ, sometimes tremendously, on critical questions of filiation, such as surrogacy, co-parenthood, single or multiple parenthood, the position of the biological but not legal parent versus the position of the legal but not biological parent. Thus, in the current circumstances, private international law is conceived not as an instrument to circumvent Member States’ sovereignty regarding their substantive family law, but as a mechanism to prevent the emergence of limping statuses for children. In doing so, it safeguards the freedom of movement of EU citizens within the EU and ensures the peaceful enjoyment of fundamental rights within and beyond the EU.

This strategy underlies the method of coordination between Member States proposed by the Report. This consists in setting EU minimum standards which would allow the recognition of child-parent relationships existing in those Member States that attribute filiation based on contracts having the live birth of a child as consideration, also in Member States that consider those contracts as a serious breach of the basic values enshrined in their Constitutions on the basis of the best interests of the child.

The same strategy also explains the two-tier system for cross-border recognition of status suggested by the Report. When EU minimum standards are met, it would be possible (but not mandatory) to issue a European Certificate of Filiation (ECF), which would facilitate the circulation of the child’s status. If those minimum standards are not met (eg, child trafficking), the use of an ECF would be prevented, and Member States would have to apply the rules on recognition. In these cases, the Member State in which the child habitually resides will be responsible for assessing the child’s best interests in concreto and verifying whether recognition of the filiation status would still be possible.

Finally, where an ECF has been issued, the Report envisages the creation of Centralised EU Register, where each Member State could retrieve information on children who have benefitted from an ECF. This would complement the ECF work in practice and, more broadly, would enhance European integration and the protection EU fundamental rights and freedoms.

A webinar introducing and exploring key aspects of the Report will be held on 12 March 2026, from 12:30 to 14:00 CET. Confirmed speakers include Pietro Sirena, Ilaria Pretelli, Susanne Gössl, Elina Pekkarinen, and Alina Tryfonidou. To participate, prior registration via this link is required.