LGBTI Discrimination and Parent-Child Relationship: Cross Border Mobility of Rainbow Families in the European Union

Abstract

One of the most critical issues in the landscape of the Member States of the European Union is the recognition in other Countries of the parent–child relationship within ‘rainbow families’. The parenthood of partners of same sex couple is acknowledged in Spain and the Netherlands. In other countries laws offer a timid and partial protection against discrimination of the children of same sex couples. In the majority of countries, however, there is still no legislative provision recognizing and protecting a child’s relationship with one of the partners of a same sex relationship. This legal fragmentation threatens freedom of movement within the European Union and challenges the principle of discrimination between children, only on the base of the sexual orientation of the partners in the family. By scrutinizing the distortion of the framework of fundamental rights (as recognized within the European Union) and by raising the awareness that European citizenship includes a new dimension of individuals’ protection, the paper will investigate political and juridical issues, in relation to the implementation of children rights and mutual recognition between the States. The innovation of this approach lies in the mutual recognition of the forms of protection and on the study of the available case law at the European level. The analysis will be aimed to the fundamental protection of children and to the enforcement of all the measures which are necessary for the full protection of the best interests of the children.