The Borgarting Court of Appeal (Borgargting lagmannsrett) in Norway has made a new request for an advisory opinion of the EFTA Court under Article 34 of the Surveillance and Court Agreement (SCA). It is asking about the rights of separated parents to relocate to another EEA state with children when another parent does not consent
In the case – Case E-15/24, A v B – a separated couple share the responsibilities of their child. However, one of them wishes to move from Norway to Denmark with their new partner, in which the other parent of their child does not consent to. The national law of Norway differentiates between movements of children with their parents/guardians within Norway, and movements with their parents/guardians to another EEA state.
In the initial proceedings before the Oslo District Court (Oslo tingrett) at first instance, that court refused to grant the parent wishing to move to Denmark the right to do so, accounting for the interests of both the other parent and the child.
However, accounting for the uncertainties in the case as regards provisions of national law and their compatibility with EEA law, the Borgarting Court of Appeal has now referred two questions to the EFTA Court.
Firstly,
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,
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 noncustodial 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 noncustodial parent’s consent or permission from the court?
The developments in Case E-15/24, A v B, before the EFTA Court can be followed here.