Parental responsibility in a cross-border context

Not all national courts have access to the preliminary reference procedure:

Article 267 TFEU – ‘Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the court.’

• Article 267 clarifies that courts where there is no further right of appeal are required to make a preliminary reference to the European Court of Justice if a question of interpretation of European law is at issue in the case.
• It is clear that the court of final appeal in any Member State is a court against which there is no further judicial remedy. If a question of EU law is raised in these courts, a preliminary reference must be made to the European Court of Justice.
• In some circumstances, it is possible for a lower court to make a preliminary reference to the European Court of Justice where there is, in reality, no right of further appeal and thus no judicial remedy. If the court’s decision in the national context will be truly final, then they are also obliged to make a reference if a question of EU law is raised by the proceedings, see for example Case C-99/00 Lyckeskog [2002] E.C.R I-04839

If a question of interpretation of EU law is raised in a lower court, against which there are further judicial remedies, that court may make a preliminary reference to the European Court of Justice:

• Article 267 TFEU – ‘Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.’

• In family law cases, preliminary references used to be restricted to courts of final appeal only. This is no longer the case and a lower court may make a reference under Article 267 TFEU.