THE SHADOW PANDEMIC : Violence against women during COVID-19

The COVID19 crisis phase was particularly difficult for victims of domestic violence, and in particular women and girls who are confronted with situations of abuse. The many confinement measures forced families to live closely together and resulted in increased tensions. In addition, the structures in place to rescue potential victims and the consultation centers were confronted with an increase in the requests for assistance. This shows the importance of a solid social and economic response framework that must be put in place by governments and non-governmental support agencies. 

July 16th, 2020

According to a first estimate, the Grand-Duchy has not experienced a massive increase in domestic violence in Luxembourg. On June 11th, 2020, as Luxembourg slowly moved towards deconfinement, the Minister for Equality between women and men Mme Taina Bofferding presented the numbers related to violence against women in their homes from the months of March to May 2020. 

Luxembourg’s numbers 

As such, in March 2020, 91 police interventions were made, with 26 of these interventions resulting in expulsions of the perpetrator from the family home. This number decreased in April 2020, when only 73 interventions resulted in 19 expulsions. In May 2020, the Minister’s report shows that 23 persons were asked to leave their home for a total number of 79 police interventions. 

Notwithstanding these numbers that may not have dramatically increased due to the COVID-19 related confinement measures, it was essential for the Luxemburgish government to set up measures to ensure efficient and preventive action in cases of domestic violence and allow victims to feel sheltered if in need of help. Such measures included the weekly monitoring of situations previously known to the authorities, the development of the website violence.lu directly addressed to victims of violence and the setting up of a helpline. 

On July 3rd, 2020 Minister Taina Bofferding also visited reception structures and consultation centers registered with the Ministry for Gender Equality, namely the Maison de la Porte ouverte Foundation (FMPO), the ProFamilia Foundation, Femmes en Détresse asbl (FED) and the National Council for Luxembourg Women (CNFL). The objective of this visit was to get a global image of the social work carried out by organizations and their staff for the benefit of women in situations of distress, especially during times of increased domestic violence.

Throughout the confinement and the progressive phases of deconfinement, the organizations perfectly mastered the situation and were able to continue their activities through on-site and telephone hotlines. Assistance and assistance to potential victims could be guaranteed. This on-site visit is a first step to take stock of the crisis.

UN Women Report 

The existing crisis of violence against women and girls is already showing worrying statistics worldwide, as it is assumed that in the previous twelve months, almost 18 per cent of women and girls between the age of 15 to 49 have experienced physical or sexual violence by a partner. UN Women’s report on this “shadow” pandemic addresses the economic impact of violence against women and formulates several recommendations for governments and affiliated organizations in the fight against violence. 

The report published on April 6th, 2020, recommends governments to allocate additional resources and include evidence-based measures to address violence against women and girls in COVID-19 response plans. The report further underlines the importance of the response-system at the disposal of victims of violence, such as shelters, psychological support centers and helplines. 

In order to act preventively, UN Women equally advocates to put women at the center of policy change, solutions and recovery. The building of capacity of key services to prevent impunity can only be effective if the victims themselves get to be a part of the solution. The collection of data in this regard, as presented by Luxembourg for instance, is an essential element to fully understand the impact of COVID-19 on victims of domestic violence and in the framework of violence against women and girls. This will allow governments and related organizations to structure a comprehensive response. 

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Luxembourg’s government is continuously monitoring the numbers related to domestic violence and has made a first evaluation of the confinement from March to June 2020. This is to be continued in view of a potential second confinement due to the renewed increase in cases, in line with the UN Women’s recommendations.

VISITATION AND ACCOMMODATION RIGHTS: WHAT ABOUT PARENT’S RIGHTS AND THE RIGHTS OF THE CHILD IN TIMES OF CONFINEMENT?

Following the declaration of the state of crisis on March 15th, 2020, there was a great deal of doubt as to the procedures for exercising access and accommodation rights for separated parents. Indeed, on March 20th, 2020, the advisory opinion of the Family Affairs Judge of the District Court of and in Luxembourg instructed parents to strictly limit the movement of children. In homes where the child’s parents live in separate residences, this has led to conflictual situations in which some parents have refused to accept or hand over the child to the other parent, thus going to the against any legal decision preceding the state of crisis.

May 7th, 2020

On April 2nd, 2020, the President of the Chamber of Deputies, Mr. Fernand ETGEN, acknowledged receipt of an urgent parliamentary question to the Minister of Justice Madam Sam TANSON concerning the procedures for the exercise of visitation and accommodation rights in times of confinement and more specifically, regarding the advisory opinion issued by the Family Affairs Judge dated March 20th, 2020.

The advisory opinion of March 20th, 2020

It should be recalled that in Luxembourg, the principle is that parental authority is joint, that is to say that it is exercised jointly. The parents of the child have the same rights and obligations towards the person and the property of their child, whether they live together or whether they are separated or divorced. In the event of separation or divorce, the child’s usual residence can then be fixed with one of the two parents, the other parent then obtaining visitation and accommodation rights.

Even though the exercise of parental authority has in no way been affected by the declaration of the state of crisis, great doubts persisted in relation to the visitation and accommodation rights exercised by parents with separate residences.

These doubts seemed to have been clarified on March 20th, 2020. Indeed, the instructions received by the Family Affairs Judge indicated that parents living apart and usually sharing custody or residence are requested to strictly limit the movements of children.

Thus, the Family Judge held that it was unwise to maintain the visitation and accommodation rights agreed upon or judicially decided. The advisory opinion also stated that if the parents did not find a suitable solution, the child had to stay with the parent with whom the usual residence is located. The other parent will then be “compensated” once a return to normality is possible.

The parliamentary question of April 2nd, 2020

It is following to a letter received from the association “Fathers Against Discrimination” (hereinafter “FAD association”), dated April 1st, 2020, that the deputies Mr. Roy REDING and Mr. Fernand KARTHEISER transmitted to the President of the Chamber of Deputies a parliamentary question regarding the advisory opinion of the Family Affairs Judge of March 20th, 2020.

The FAD association is committed to equal parental rights after separation, stressing that a child should never be deprived of their natural human right to family life and equal access to both parents.

Thus, since the advisory opinion was likely to have a disproportionate impact on the rights of parents with whom the usual residence is not located, or even on the rights of the children themselves, the letter from the FAD association was given close attention and gave rise to the parliamentary question formulated on April 2nd, 2020.

Firstly, the parliamentary question asked the Minister of Justice to confirm the existence of an advisory opinion.

Secondly, it asked the Minister of Justice to assess the procedural value of this opinion, in particular in relation to compliance with legal decisions preceding the state of crisis, in relation to the rights of the child and its parents, as well as its compatibility with Article 1 of the     grand-ducal regulation of March 20th, 2020 which authorized travel for the exercise of visitation and accommodation rights.

Finally, the parliamentary question asked more generally what the current Luxembourg government intends to do in order to ensure respect for visitation and accommodation rights, even in times of confinement.

Statement by Minister Sam TANSON

While it would be possible to consider that the opinion of March 20th, 2020 would go against government directives as suggested by the FAD association, the response of the Minister of Justice was limited to legal references in case of an emerging dispute between separated parents.

The Minister thus confirmed the existence of this opinion, but did not comment on the approach of the Family Affairs Judge referencing the independence of the judiciary.

In her response to the honorable deputies REDING and KARTHEISER, the Minister of Justice confirmed that the grand-ducal regulation of March 18th, 2020, as modified by the grand-ducal regulation of March 20th, 2020, maintains that any travel necessary for the exercise of the visitation and accommodation rights as fixed by agreement between the parties or by a judicial decision is permitted.

In addition, the Minister indicated that a specific interim procedure has been established in order to resolve emergency situations related to the COVID-19 pandemic. This procedure is codified in Article 4 of the grand-ducal regulation of 17 April 2020 relating to the holding of public hearings during the state of crisis before the courts in cases subject to the written procedure and relating to the temporary adaptation of the procedure for exceptional proceedings before the Family Affairs Judge. Thus, if disagreements between parents regarding the exercise of the visitation and accommodation rights meet the criteria of Article 4 of the grand-ducal regulation of April 17th, 2020, these disputes can be resolved quickly through the exceptional interim proceedings. 

More precisely, in accordance with the aforementioned Article 4, during the state of crisis and derogating from Article 1007-11 paragraph 1 of the New Code of Civil Procedure, the request to obtain interim measures referred to in Article 1007-11 may be introduced in the absence of a referral to the Family Affairs Judge by an application on its merits, and by electronic means. The measures ordered by the Family Judge in this regard will automatically end two months after the end of the state of crisis, without prejudice to article 1007-11, paragraph 6, of the New Code of Civil Procedure.

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The parliamentary questions relating to the impact of the advisory opinion on the rights of parents and children will therefore remain unanswered, but the necessary government measures are in place to ensure full respect of visitation and accommodation rights.

RISE IN CASES OF DOMESTIC VIOLENCE AND CLAIMS FOR DIVORCE IN CONTAINMENT PERIOD IN THE GRAND DUCHY OF LUXEMBOURG?

A certain number of individuals (men and women) suffer in their couples or their families from such tensions that cohabitation becomes difficult and that it is likely for differences to escalate and transform into physical abuse.

As necessary as confinement is for public health, does it appear as a factor increasing tensions within the couple, likely to lead to an increase in domestic violence and more generally in divorce applications?

May 4th, 2020

A numerical overview:

According to STATEC data, from 2016 to 2018 the divorce rate remained stable around 63% in Luxembourg. However, it rose in 2019 to a significant figure of 98%, so that out of 10 marriages celebrated in one year, there are the equivalent of 10 divorces pronounced the same year.

Victim support organizations have recently noted that cases of domestic violence tend to increase in situations such as the health crisis, so that there is reason to worry about a corresponding increase in measures of expulsion as well as a rise in marital conflicts favouring the dissolution of marriage.

Practical findings:

During the confinement period, the Law Firm Real Avocats à la Cour did indeed observe a relative increase in domestic violence leading to expulsion measures, but also an increase in divorce petitions.

In this health crisis, it should be noted that social differences and inequalities have increased and that in particular disadvantaged families, who are confined in small apartments, where several people live, are in a situation very different from that of families who coexist in spacious houses with gardens.

Thus, if for some, marriage was already in crisis before quarantine, the restrictive pandemic measures undoubtedly accentuated the decision to dissolve marriage, while, for others, the health crisis contributed to the increase of conflict existing within the couple.

Brief overview of the current procedure in the Grand Duchy of Luxembourg in matters of domestic violence: 

The amended law of 8 September 2003 on domestic violence (hereinafter “the Law”) created a framework for the protection of victims of domestic violence throughout the country and a Cooperation Committee for professionals in the field of the fight against violence, responsible for providing an annual report to the Government on the matter. 

In accordance with the law, within the framework of their missions of crime prevention and protection of persons, the police, with the authorization of the State prosecutor, can evict from their home and its dependences, the persons against whom there are indications that they are preparing to commit with respect to a person with whom they cohabit in a family environment, an offense against life or physical integrity, or that they are preparing to commit such acts again with regard to a person who had already fallen a victim to domestic violence by the same author.

 As a result of this expulsion, the perpetrator no longer has the right to enter the home and its dependencies, to make contact with the protected person, orally, in writing or through a proxy, nor does the perpetrator have the right to approach them. It is for the police to verify compliance with these prohibitions.  

The expulsion measure, initially ordered, automatically ends at 5:00 p.m. on the 14th day following that of its entry into force, unless the protected person has filed, within this period, a request for extension according to the formalities provided for in the Article 1017-2 of the New Code of Civil Procedure. 

Under Article 1017-1 (1) of the New Code of Civil Procedure, the protected person has the possibility, by simple request, to ask the president of the District Court to pronounce against the author a ban to return home for a maximum period of three months following the expiration of the expulsion order, without regard to any real or personal rights of the author in relation to the home.   

In the event of non-compliance with the prohibition measures to which the author is subject, he is liable to the criminal sanctions of Article 439 of the Criminal Code, namely imprisonment from six months to two years and / or a fine from EUR 251.00.- (two hundred and fifty-one euros) to EUR 3.000,00.- (three thousand euros).


Unlike its neighbors, Luxembourg has not yet taken extraordinary measures to help the victims. The measures in force at the moment are therefore those laid down in the Law: namely the expulsion of the author, the care of victims by the SAVVD (Service for assistance to victims of domestic violence) and the service of assistance for children, as well as the “Riicht Eraus” service of the Luxembourg Red Cross which helps perpetrators of violence. 

A helpline under the number 2060 1060 works for victims of domestic violence (women and men) in order to respond to the projected increase in domestic violence in the context of the COVID-19 crisis. 

The “Riicht Eraus” service has opened a hotline under the number 2755 5800. 

Finally, it should be noted that the legislator was particularly keen, despite the particular circumstances linked to the health crisis, to preserve, in favour of the victims, the protective measures established within the framework of the Law relating to this sensitive matter of violence  within a marriage, unlike the evictions operated within the framework of leases. 

Indeed, in accordance with article 5 of the Grand-Ducal Regulation of March 25th, 2020 suspending the time limits in jurisdictional matter and temporary adaptation of certain other procedural modalities, “the ordered evictions in matters of residential lease and leasehold for commercial use are suspended ”. Thus, it is clear that the eviction procedure provided for by the amended law of September 8th, 2003 on domestic violence retains all its effectiveness and applicability despite the current health crisis. 

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To find out if the period of confinement really had an impact on the acts of domestic violence and the dissolution of marriage during this period of confinement, it will take some time to allow the necessary hindsight to establish the statistical data on the matter.

VISITATION RIGHTS IN THE CONTEXT OF A NATION-WIDE LOCKDOWN

The state of emergency has been declared, the schools will remain closed for an indefinite period of time, nothing continues “as usual”. What does this imply for separated parents?

March 27th, 2020

The state of emergency was declared by a grand-ducal regulation dated March 18th, 2020 and limits any movement outside of home. What about separated parents? Are visitation rights and alternate residence exercised as usual?

It is important to differentiate between parental authority and the residence of common children or possible visiting and accommodation rights, the legal rules of which are codified by the law of 27 June 2018 establishing the judge for family affairs, reforming divorce and parental authority.

Parental authority

Parental authority is the set of rights and obligations with regard to the person of a minor, which belongs to each of the child’s parents and which last until majority of the child or his emancipation. The majority is fixed at the age of 18 in the Grand Duchy of Luxembourg.

The principle is that parental authority is joint, that is to say that it is exercised in common. The parents of the child have the same rights and obligations towards their child, whether they live together or are separated or divorced. The separation or divorce of the parents does not change the conditions for the exercise of parental authority, which continues to be exercised jointly by the two parents in principle.

The exercise of parental authority is in no way affected by the current state of emergency or any other government measure taken in the context of the extraordinary situation caused by COVID-19.

Alternate residence or visitation and accommodation rights

However, when the parents have separate residences, sometimes beyond the borders of the Grand Duchy, the numerous declarations made in regard to the state of emergency and the ban on any movement outside of home can be confusing.

It should be recalled that, in the event of separation, the parents can agree on the residence of the common children, alternated or not, as well as the visitation and accommodation rights possibly granted to one or the other parent.

If no agreement between parents is possible, the judge will then have made a decision in the best interests of the child and have fixed the child’s home with one of the parents. It is then possible that the residence is either alternate, or that one parent receives visitation and accommodation rights. It is important to note that alternate residence does not necessarily impose a strictly equal sharing of the child’s residence time at the home of each parent.

Following the instructions received by the Judge on Family Affairs of the Luxembourg District Court on Friday, March 20th, 2020, parents living separately with one or more common children with shared custody or residence are asked to strictly limit the movement of children.

Thus, the Judge on Family Affairs considers that it is unwise to maintain the repetitive access rights agreed or judicially decided. We must, while keeping the best interests of the child at the center of all decisions, above all seek to minimize the passing of arms over the coming weeks. This means that it is quite possible to maintain four weeks with only one of the two parents, by encouraging Facetime or Skype contacts for example. The Judge on Family Affairs encourages parents to find an agreement that limits the child’s movement as much as possible, in the awareness that custody of a child in the current context is far from being an easy task. 


If the parents cannot find a suitable solution, the child must stay with the parent with whom the usual residence is located. The other parent will then be “compensated” once a return to normality is possible. 

If the parents exercise alternate residence, it is now to be exercised in blocks of two weeks. 

Any surrender of the child beyond the borders of Luxembourg is to be assessed individually and to be considered with great reservations. The Judge on Family Affairs considers that the return of the child is not guaranteed and advises separated parents to suspend all transportation of the child beyond the borders until the crisis settles down. 

In addition, it follows from the instructions of the Luxembourg government but also from the opinion of the Judge on Family Affairs that all visits to a public place or in the presence of a third party are imperatively suspended

The grand-ducal regulation of March 18th, 2020, as modified by the grand-ducal regulation of March 20th, 2020 maintains that any travel necessary for the exercise of visitation and accommodation rights as well as the exercise of alternate residence arrangements, as agreed upon between the parties or by court order, is permitted.

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This article is a reflection of the opinion issued by the Judge on Family Affairs of the Luxembourg District Court on Friday, March 20th, 2020, as well as the information published by the Ministry of Justice of the Grand Duchy of Luxembourg.

SUPPORT MEASURES FOR COMPANIES DURING THE CONTAINMENT PERIOD

Le gouvernement luxembourgeois a pris de nombreuses mesures en vue de contenir la propagation du COVID-19 et a décrété l’état d’urgence. Que cela signifie-t’il pour vous ?

26 mars 2020

La liberté de circulation est une pierre angulaire de l’Union européenne et fait partie intégrante de notre mode de vie. Cependant, la situation actuelle impose de grandes restrictions et a un impact sévère non seulement sur le tourisme mais également sur ceux qui souhaitent à l’heure actuelle obtenir un type de permis de séjour plus permanent au Luxembourg.

Comment le droit de l’immigration au Grand-Duché est-il affecté par les nouvelles règles et réglementations?

Le 18 mars 2020, l’état d’urgence a été déclaré au Luxembourg. L’intention de proclamer l’état d’urgence avait été annoncée par le Premier ministre Xavier Bettel dans son discours au Parlement prononcé un jour plus tôt.

En effet, en cas de crise internationale, le Grand-Duc peut édicter des réglementations sur tout sujet, voire déroger aux dispositions légales existantes. La durée de validité de ce règlement est limitée à trois mois. Ceci est codifié à l’article 32-4 de la Constitution luxembourgeoise. Le champ d’action couvert par cet article est limité aux mesures qui ne peuvent pas être prises en temps utile via la procédure législative normale. La Chambre peut à tout moment suspendre ou révoquer l’état de crise: le contrôle parlementaire est ainsi pleinement garanti.

Au moment de la rédaction, ce règlement est donc valable jusqu’au 18 juin 2020 et a été modifié par un règlement grand-ducal édicté le 20 mars 2020. Ces modifications n’affectent cependant pas le droit de l’immigration.

Le règlement du 18 mars 2020 porte sur la délivrance de nouvelles autorisations de séjour, la validité des visas et permis existants, ainsi que la liberté de circulation à l’intérieur et à travers le Luxembourg.

Pour ceux qui se trouvent au Luxembourg et détiennent un visa ou un titre de séjour :

Par dérogation à la loi modifiée du 29 août 2008 sur la libre circulation des personnes et l’immigration, la durée de validité des visas, des titres de séjour temporaires, des titres de séjour et des titres de séjour, qui expirent après le 1er mars 2020, est prorogée pour la durée de l’état de crise.

Pour ceux qui se trouvent au Luxembourg et qui ne sont pas titulaires d’un visa :

Le séjour des ressortissants de pays tiers qui ne sont pas soumis à l’obligation de visa et dont le séjour vient de dépasser 90 jours est régulier pendant la durée de l’état de crise.

Pour les demandeurs d’asile qui se trouvent au Luxembourg :

Par dérogation à la loi du 18 décembre 2015 sur la protection internationale et la protection temporaire, le certificat reçu lors du dépôt d’une demande de protection internationale qui est expiré ou expirera pendant l’état de crise est prolongé pour la durée de l’état de crise.

Il convient de souligner que les mesures susmentionnées sont automatiques et que les personnes concernées ne doivent prendre aucune mesure ni formuler aucune demande spécifique afin d’en obtenir le bénéfice 

La Direction de l’immigration ne délivre pas de document certifiant cette prolongation temporaire.

Enfin, la Direction de l’immigration a informé les citoyens qu’il n’est actuellement pas possible de déposer des fichiers et des documents. Il est demandé d’envoyer toute pièce par courrier. De plus, toutes les billetteries resteront fermées jusqu’à nouvel ordre.

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Il est important de noter que tous les ressortissants de pays tiers ne peuvent plus entrer sur le territoire du Grand-Duché à partir du 18 mars 2020 à 18 heures. pour une durée d’un mois renouvelable, soit jusqu’au 18 avril 2020 au moment de la rédaction.

À ce titre, les citoyens de l’Union européenne, du Royaume-Uni, des pays associés à l’espace Schengen et les membres de leur famille, dans le but de rentrer chez eux, sont exemptés des restrictions de voyage temporaires.

En outre, les catégories suivantes de ressortissants de pays tiers peuvent déroger aux restrictions de voyage temporaires: (1) les ressortissants de pays tiers qui détiennent le statut de résident de longue durée conformément à la directive européenne 2003/109 / CE sur les résidents de longue durée, ainsi que toute autre personne ayant un droit de séjour conformément aux directives européennes et en vertu du droit national au Grand-Duché de Luxembourg ou dans l’un des pays voisins; (2) les professionnels de la santé, les chercheurs en santé et les professionnels des soins aux personnes âgées; (3) les travailleurs et employés transfrontaliers; (4) les personnes employées dans le secteur du transport de marchandises et les autres personnes employées dans le secteur du transport de marchandises et de personnes, y compris le personnel des compagnies aériennes; 5) les membres du corps diplomatique, le personnel d’organisations internationales, les militaires, le personnel dans le domaine de la coopération au développement et de l’aide humanitaire, dans l’exercice de leurs fonctions respectives; (6) passagers en transit; (7) les passagers voyageant pour des raisons familiales urgentes et dûment justifiées; (8) les personnes souhaitant solliciter une protection internationale ou subsidiaire au Grand-Duché de Luxembourg ou pour d’autres raisons humanitaires.

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IMMIGRATION LAW : WHAT ABOUT COVID-19 ?

The Government of Luxembourg has taken numerous measures in view of containing the spread of COVID-19 and declared the state of emergency. What does this mean for you? 

26th March 2020

Freedom of movement is a cornerstone of the European Union and an integral part of our way of life. However, the current situation imposes great restrictions and has a harsh impact on not only travelling for tourists but also on those who wish to seek a more permanent type of residence permit in Luxembourg at the current time. 

How is immigration law in the Grand-Duchy affected by the new rules and regulations? 

On March 18th, 2020 the state of emergency was declared in Luxembourg. The intention to declare the state of emergency had been announced by the Prime Minister Xavier Bettel in his address to Parliament held one day earlier. 

Indeed, in the event of an international crisis, the Grand Duke may, if there is an emergency, make regulations on any matter, even derogations from existing legal provisions. The period of validity of these regulations is limited to three months. This is codified in Article 32-4 of the Luxembourg Constitution. The scope of action covered by this article is limited to measures which cannot be taken in good time via the normal legislative procedure. The Chamber can at any time suspend or revoke the state of crisis: parliamentary control is thus fully guaranteed.

At the time of writing, this regulation is thus valid until June 18th, 2020 and has been modified by a Grand-Ducal regulation issued on March 20th, 2020. However these modifications do not affect immigration law. 

The Regulation issued on March 18th, 2020 deals with the delivery of new authorizations of stay, the validity of existing visa and permits, as well as the freedom of movement within and through Luxembourg. 

For those who hold a visa or a residence permit and are currently in Luxembourg :

By way of derogation from the amended law of 29 August 2008 on the free movement of persons and immigration, the period of validity for visas, temporary residence permits, residence permits and residence permits, which expire after March 1, 2020, is extended for the duration of the state of crisis.

For third-country nationals who do not hold a visa and are currently in Luxembourg : 

The stay of third-country nationals who are not subject to the visa requirement and whose stay has just exceeded 90 days is regular for the duration of the state of crisis.

For those who seek international protection and are currently in Luxembourg :

By way of derogation from the law of 18 December 2015 on international protection and temporary protection, the certificate received upon filing a request for international protection also called an asylum request that has or will expire is extended for the duration of the state of crisis.

It should be emphasized that the aforementioned measures are automatic and that the persons concerned must not take any steps or make any specific requests.

The Immigration Directorate does not issue a document certifying this temporary extension. 
Finally, the Directorate of Immigration informed citizens that it is currently not possible to deposit files and documents by hand. It is requested to send any part by mail. In addition, all ticket offices will remain closed until further notice.

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It is important to note that all third-country nationals may no longer enter the territory of the Grand Duchy from March 18th, 2020 at 6 p.m. for a period of one month renewable, that is to say until April 18th, 2020 at the time of writing. 

As such, citizens of the European Union, the United Kingdom, countries associated with the Schengen area, and members of their families, for the purpose of returning to their homes, are exempt from temporary travel restrictions. 

In addition, the following categories of third-country nationals may derogate from the temporary travel restrictions : (1) third-country nationals who hold long-term resident status in accordance with European Directive 2003/109 / EC on long-term residents, as well as any other person with a right of residence in accordance with European directives as well as under national law in the Grand Duchy of Luxembourg or one of the neighboring countries ; (2) health professionals, health researchers and care professionals for the elderly ;  (3) cross-border workers and employees ; (4) persons employed in the goods transport sector and other persons employed in the transport of goods and persons sector, including airline personnel ; (5) members of the diplomatic corps, personnel of international organizations, the military, personnel in the field of development cooperation and humanitarian aid, during the exercise of their respective functions ; (6) passengers in transit ; (7) passengers traveling for urgent and duly justified family reasons; (8) persons wishing to apply for international protection or subsidiary protection in the Grand Duchy of Luxembourg or for other humanitarian reasons.

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An evolving legal framework regarding the use of cannabis in Luxembourg : towards a possible legalisation of recreational cannabis to the same extent as therapeutic cannabis ?

ARTICLE

REAL, Avocats à la Cour

 

Luxembourg is one of the first countries in Europe to have recently adopted a law aiming to authorize the use of cannabis for medical purposes, with the aim to reduce the pain and suffering from certain patients.

 

The law of July 20th 2018 modifying the law of February 19th 1973 on the sale of medical substances and the fight against substance abuse decriminalized the use of hemp (cannabis) or any products derived from the same plant if such use was prescribed and obtained for medical purposes.

 

The new article 30-2 of the aforementioned law foresees that « every doctor authorized to exercise his or her profession in Luxembourg is authorized to prescribe medicinal cannabis to a patient if the following conditions are fulfilled :

  1. The patient must suffer from a severe illness in an advanced or terminal face, or from an illness whose symptoms have a prolonged negative impact on his or her quality of life if those symptoms can be minimized through the administration of medicinal cannabis,
  2. The doctor must have previously undergone special training on cannabis pharmacology, its various forms, therapeutic indications and side effects, as well as on the modalities and scientific aspects of its prescription ».

 

Three months after the introduction of medical cannabis, Luxembourg’s Health Minister Etienne Schneider outlined that over 120 patients had been treated through the use and prescription of this substance.

 

Furthermore, the Luxembourgish Government announced in its coalition agreement of December 2018 that a wider legislation on the use of cannabis for recreational purposes could be adopted.

 

Concerning this matter, a petition on the recreational use of cannabis demanded, in addition to the law allowing such use, that coffee shops be opened where customers would be free to legally consume cannabis as it is currently practiced in the Netherlands.

 

If such a legislation were to be passed, Luxembourg would be the first country in Europe to legalize this substance in its entirety through a legally coherent framework.

 

The principal objectives of the coalition agreement are to decriminalize, or even to legalize under conditions that remain yet to be determined, the production, the sale, the possession and the recreational use of cannabis on national territory for adult residents. It equally aims to reduce the market pertaining to illicit trade and the psychological and physical dangers linked to such trade. The fight against crime related to the illegal supplying of cannabis is amongst the highest priorities of the Government.

 

The Government announced its intention to introduce a « residential clause » in the new law, exclusively allowing the selling of cannabis to residents and thereby suggesting that the use of recreational cannabis would be reserved to residents too.

 

As the law on legalizing the use of cannabis is currently being drafted, only the future will tell if Luxembourg is to follow the example set by Canada, who legalized the cultivation, sale and use of cannabis in October 2018.

Real, Avocats à la Cour : Criminal court case

During the trial that was held on April 23rd, 2019, I was honoured to represent a young woman who became a victim of sexual assault in September 2016 in Luxembourg. I hope that my support will allow to end the silencing of victims of sexual abuse, even if only a little bit. It is a battle we must fight together. 

A September night turned into a nightmare for a 18 year-old girl:

On a September night in the year 2016, a young eighteen-year-old girl was riding the train on her way to the children’s home she had been placed in, coming back from visiting her mother. On the route from Rodange to Luxembourg station, a thirty-two-year-old man stepped into the same train compartment. He then allegedly exposed his private parts and invited the young girl to sit next to him. He proceeded to inappropriate and unwanted sexual touching. When she escaped, he presumably followed her until she could find help in the capital’s main train station. She lodged a complaint on the same night.

The law firm REAL Avocats à la Cour defended the victim during the trial on April 23rd, 2019. The State’s Attorney requested a sentence of 15 months with probation. A judgment is awaited on May 21st, 2019.

The articles published in the Luxemburger Wort on April 23rd, 2019 outline the facts of the case.

https://www.wort.lu/de/lokales/gericht-mann-soll-18-jaehrige-im-zug-sexuell-belaestigt-haben-5cbf477fda2cc1784e342a8f

https://www.wort.lu/de/lokales

 

The major changes of the family law reform applicable as of the 1st November 2018

REAL, Avocats à la Cour

 

ARTICLE 1

The guarantees deriving from the institution of a family court judge: between simplification, rapidity and reduction of procedural costs for the family’s best interests

 

The family law reform operated by the Law of 27 June 2018 assigned a number of competences, that may be embraced under the concept of « family law », to one single judge, namely the family court judge, hereafter referred to as the « judge ».

 

These competences, initially dispersed between different jurisdictions including the « juge de paix », a « chambre civile du tribunal d’arrondissement », the president of the « tribunal d’arrondissement », the juvenile judge or the guardianship judge are nowadays incorporated in the Article 1007-1 of the new Code of Civil procedure.

 

The judge has herewith jurisdiction for all the procedures relating to marriage, including for example disputes about the spouses’ respective rights and duties. He has also jurisdiction for all the divorce related procedures and among other things for both provisional measures (former « référé-divorce ») and the ruling on divorce’s merits. Another significant litigation matter operated under the judge concerns parental authority, namely the disputes regarding the execution of the terms and conditions of parental authority, regardless of whether the parents are married, divorced, separated or simply living together. All the powers that were usually exercised by the guardianship judge with regards to minors are equally assigned to the judge. The same observation applies to claims requesting the extension of a person’s eviction notice following a case of domestic violence, matter which was formerly assigned to the president of the « Tribunal d’arrondissement ».

 

The purpose of gathering all the family law matters in the hands of a unique family court judge is to allow the said judge to follow a family, as far as possible, through all the procedures that may occur. This gathering allows the judge to have a global vision of the family and it finally puts an end to the scattering of attributions between the different jurisdictions.

 

The new procedure applying to the judge was driven by the willingness to simplify the actual procedures while upholding each parties’ rights. As such, the innovation by which provisional measures (former « référé-divorce ») as well as the ruling on divorce’s merits now lies within the competences of one unique judge allows for greater efficiency and reactivity but it also facilitates all the steps of the procedures for the litigants.

 

The legislator chose the mean of a « requête » to petition the court rather than the said classical procedure in civil matters consisting of an « assignation » requiring the bailiff to intervene. A « requête » will have the non-negligible advantage of preventing the parties to engage expenses, considering that the « service du greffe » will deal with the parties’ convening for all the family law matters.

 

The legislator also took into account the fact that the litigation in family law issues intrinsically concerns complicated family situations and that it is in the family’s best interests, and particularly for children, to have quick judicial responses to the arising disputes. The setting of affairs before the judge is therefore confined in restricted time frames.

 

Another purpose of the new law is to strengthen the judge’s conciliatory role. The parties are indeed as of now obliged to personally appear in front of the judge. The procedure before the family court judge will mainly be oral and will take place in the presence of the parties and their attorneys where appropriate. Having a general mission of conciliation of the parties, the judge will have to consult each of the parties in order to get an overall view of the dispute opposing them and to collect their different point of views.

 

The legislative provisions as modified by the institution of a family court judge will solve faster and more efficiently the litigation in family law matters and therefore allow the said litigation to be alleviated and the parent-child relationships to be preserved subsequently to the couple’s separation.

ARTICLE 2

The law of 27 June 2018 reforming family law: Introduction of an accelerated procedure concerning divorce for irremediable break down of relationships

  

The law of June 27th, 2018, instituting a family court judge, reforming divorce and parental authority, entering into force on November 1st, 2018, considerably amends the legal basis for divorce applications.

 

The former legal grounds on which a divorce application could be based on, namely divorce on the grounds of fault (former Article 229 of the Civil Code), divorce for separation of more than three years (former Article 230 of the Civil Code) and divorce for separation of more than five years in case of illness (former Article 231 of the Civil Code) are indeed abolished.

 

In accordance with the new Article 229 of the Civil Code, divorce may now only be pronounced in two cases: either by mutual consent or for irremediable break down of relationships.

 

The purpose of the new legal basis for divorce applications as established by the law of June 27th, 2018, is to remedy the shortcomings detected in former litigation disputes regarding not only the particularly lengthy divorce proceedings but also the abuses arising from the difficulties, possibly even the impossibility of divorcing in the absence of evidence of a fault or the spouse’s consent to divorce (A).

 

The reform of divorces by mutual consent as operated by the law of June 27th 2018 reveals in contrast a loss of efficiency in terms of rapidity to put an end to the parties’ union and nowadays seems to morph into a procedural complexity (B).

 

A – The merits of a divorce for irremediable break down of relationships : celerity and simplification of divorce proceedings

 

The reform provides that a divorce for irremediable break down of relationships can be claimed, via an attorney, either unilaterally by one of the spouses or by both spouses jointly if an agreement is found regarding the principle of divorce.

 

After filing a unilateral or joint divorce petition, the parties are subsequently summoned by the clerk within 15 days following the filing of the said petition, the notice of appearance being of 8 days. The court hearing is then fixed within one month from the date of expiry of the aforementioned appearance notice.

In case of agreement between the parties on the principle of divorce, it is relevant to underline that the divorce can be pronounced in a substantially faster time lapse since it can be pronounced as of the fixing of the first court hearing.

 

Elseways if no agreement can be found between the parties on the entirety of the divorce’s consequences or on eventual accessory measures, the family court judge can rule separately and later on that subject, without affecting his decision to grant the divorce or not.

 

Another non-negligible element, which comes out of the new legal basis for divorce, is henceforth the possibility, on the same basis as the Portuguese or French law, to be able to divorce in the absence of a mutual will of the spouses and more specifically without having to prove the evidence of a fault of the absent spouse or the unwillingness of the spouse to divorce.

 

If remarkable steps forward can be noticed regarding the divorce proceedings for irremediable break down of relationships, the same observation can unfortunately not be made in terms of non-litigated divorces (B).

 

B – The reformed divorce by mutual consent: towards a complex and decelerated procedure ?

 

The new procedure of divorce by mutual consent requires to refer the matter to the Court through a joint divorce petition filed with the clerk by attaching the divorce settlement agreement drafted by either an attorney or a notary, the legally required documents as well as the establishment of an inventory of the spouses’ joint property subject to property division.

 

Following the filing of a divorce petition, the clerk will also convene the parties in a time lapse of 15 days. It should however be pointed out that the legislator omitted to mention the time limit to be provided for the fixation of the court hearing, so that the parties are not in any way assured to benefit from a short delay for the fixation of their first court hearing before the family court judge.

 

Furthermore, once the family court judge will have personally convened the parties in order for them to confirm their willingness to divorce, the judge will carry out an analysis of the content of the divorce settlement. He shall also review that none of the clauses contained in the said settlement are contrary to the children’s best interest and that the settlement does not disproportionally restrict the spouses’ interests.

 

If the judge considers the divorce settlement to be jeopardising the children or the spouses’ interests, the parties will be given 6 weeks time to modify the clause(s) and present a new divorce settlement. New debates regarding the said settlement will be fixed at a later court hearing posteriorly to the aforementioned six weeks period.

 

If a new divorce settlement is not provided to the Court in the given deadline, the application filed for a divorce by mutual consent will be declared null and void by judgement.

 

Adversely, if the new divorce settlement is provided to the court on time, the judge may either declare the modified settlement to be appropriate and therefore grant the divorce or conversely rule the settlement to be inadequate so as to issue a committal for trial in front of three judges, the said panel having then the opportunity to approve the settlement or render a judgement rejecting the divorce to be granted.

* * *

It must therefore be concluded that unlike the institution of a new legal basis for divorce for irremediable breach of relationships, the legislator fixed new procedural rules in terms of divorce by mutual consent which tend to complicate the regime as it existed until now, with the risk, in fine, to result to a divorce that will be granted belatedly as if it had been based on the irremediable breach of relationships.

 

The downturn and the future practical applications of the new procedural rules set by the reform will demonstrate whether the concerns regarding slowness and complexity are justified.

 

In any case, recourse to divorce for irremediable breach of relationships can be favourably welcomed by both spouses who both agree on the principle of divorce and are willing to see their divorce be expeditiously granted.

ARTICLE 3 

The family law reform instituting the principle of joint parental authority: the pursuit of equality for all the parents independently of their legal status

 

The parental authority reform was becoming essential due to the new forms of parenting and the necessity, repeatedly mentioned by the Constitutional Court, to put the parents on an equal footing and this regardless of their matrimonial status.

 

The legislator indeed observed that the legal provisions that existed prior to the law of 27 June 2018 did no longer reflect the reality of the Luxembourg society, since marriage is nowadays largely competing with other forms of unions. In addition, the former provisions of the Civil Code regarding parental authority has already been declared unconstitutional by a Constitutional Court’s judgement dated 26 March 1999.

 

The parental authority reform enshrines the general principle of joint parental authority (1). The legislator also ensured to regulate parental authority in cases of parental separations (2).

 

  1. The principe of joint parental authority established as a general rule

 

The law of 27 June 2018 expressly introduced the principle that parents, regardless of whether they are being married or not, jointly exercise the parental authority in relation to their child. The very notion of parental authority has also been defined in the new Article 372 of the Civil Code as being a set of rights and duties aimed at meeting the child’s best interest.

 

The former rules applying to the allocation of parental authority considerably varied depending on the parents’ matrimonial status. Both parents indeed jointly exercised parental authority whenever the children were born during their marital union. Unless the parents made a joint declaration before the guardianship judge or a court decision ordering a joint parental authority, such parental authority could in accordance with Article 380 of the Civil Code only be exercised by the mother when the child was born out of wedlock, even if both parents had recognised the child.

 

The Constitutional Court declared the legal provisions to be contrary to Article 11(2) of the Constitution in the above-mentioned judgement.

 

The principle of joint parental authority operated by the new law nowadays requires both of the parents to consent to all usual and unusual acts relating to parental authority. A parent’s consent is however presumed when the other parent takes a decision, which is qualified as a usual act. Such presumption does yet only apply regarding usual acts. Indeed both parents’ consent must be given with regards to non-usual acts, so that a parent’s consent cannot be presumed in that case.

 

In case of disagreement between the parents regarding a decision that needs to be taken, a parent is free to refer the case to the family court judge who will have to rule on the case depending on the child’s best interests.

 

The corollary of the principle of shared parenthood consists in the fact that a parental separation shall in no way affect the principle of joint parental authority. The principle applies to parents, regardless of them being married, divorced, separated or in a registered partnership. The law has introduced a uniformed system concerning the execution of terms and conditions applying to parental authority.

 

In case of a parental separation, the child’s right to maintain a family link with both of his parents is recognised whereas each parent has the obligation to maintain personal links with the child. This rule applies not only to the parent with whom the child ordinarily resides but also to the other parent to whom the parental authority or the child’s habitual residence has not been granted.

 

  1. Parental authority in case of parental separation

 

The new law wishes to promote the parties’ agreements especially in case of separation, this in line with the concept of joint parenthood. The parents may formalise their agreement regarding the terms and conditions of joint parental authority in a settlement, which can, at their demand, be accredited by the family court judge.

 

A major innovation now consists in the introduction in the Civil Code of a possibility of an alternating residence, allowing the residence of the child to be alternatively fixed at each of the parent’s residence. This innovation shall however only be limited to cases where both parents agree with such possibility.

 

The alternating residence does not require a strictly equal distribution of time that the child has to reside at each of the parent’s residence. It however supposes a certain geographic proximity between the parent’s respective residences as well as a good understanding between the former spouses, in the common child’s best interests.

 

If the exercise of a joint parental authority in cases of post-separation of spouses is the principle, the family court judge can however assign the exercise of such parental authority to only one of the parents when the child’s interests require to do so. The parent who does not or partially exercise such parental authority retains, in theory, a right of access and accommodation, except if serious reasons are opposed.

 

Regarding the exercise of the rights of access and accommodation, the legislator intended to dedicate a practice, which currently already exists, by which the rights of access can be exercised at a meeting place or in the presence of a third party but only if it respects the child’s best interest or when the child’s return suggests a danger.

 

Furthermore, in order to prevent international abductions of children or in cases of non-return of children following the exercise of a parent’s rights of access and accommodation, the legislator has introduced the possibility for the family court judge to order in exceptional circumstances, an inscription in the child’s passport mentioning that the child is prohibited from leaving the Grand-Duchy of Luxembourg’s territory without both of the parent’s consent.

 

The legislator also decided to expand the scope of people who are able to apply for rights of access, or even rights of accommodation to third parties who are not necessarily members of the child’s family.

 

Based on the parental authority reform, it must be pointed out that the parents are now put on an equal footing, and this regardless of their status with the primary goal of adapting the law to the evolution of society and in particular to the diversified forms which a family can nowadays take.

ARTICLE 4 

Another innovation of the Law of 27 June 2018: Accreditation ; a pledge of security for the parties in order for their agreements to be executed

 

A large number of parents address the consequences of their separation in an agreement in which they will beforehand and by mutual agreement have determined the different terms and conditions regarding notably the exercise of parental authority, the designation of domicile as well as the rights of access and accommodation of the common child(ren) or even the common child(ren) support.

 

To that extent, the family law reform operated by the law of 27 June 2018 has introduced a considerable innovation with regards to non-contentious procedures since the accreditation of an agreement concluded between unmarried parties as well as the accreditation of divorce settlements are henceforth expressly provided in the law.

 

Regarding unmarried parties, the new Article 377 of the Civil Code specifies that the parents can refer to the Court for the accreditation of their agreement in which they organise the exercise of parental authority, designate the domicile and the child’s residence, the rights of access and accommodation as well as the contribution to the child’s maintenance and education.

 

To do so, the parents assisted where necessary by their attorney, will have to file a joint petition in accreditation of their agreement. The clerk will summon the parties within 15 days from the filing of the petition and the court hearing regarding the accreditation of the agreement will be fixed within one month. The State’s Council Office shall have the possibility to attend the hearing and can at the hearing and if appropriate conclude verbally or through previous written submissions.

 

Such innovation will have the considerable advantage of obtaining a legally enforceable decision, thus opening the possibility for a potential future conviction of the parent who does not properly execute the measures of the agreement (for example through an attachment made by a court bailiff in order to get payment of a child support).

 

Furthermore, divorce settlements from married couples will hereafter also be accredited by the Court. It will thus form an integral part of the judgement of divorce. This will facilitate the recognition as well as the execution, not only within the country but also in foreign countries, of decisions granting a divorce, but also of all the measures contained in the parties’ divorce settlement as accredited by the Court and notably those regarding parental authority and rights of access and accommodation of the children.

 

The divorce settlement will be regarded as a « judgment » within the meaning of international or European Regulations such as the Council Regulation (EC) n°2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgements in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) n°1347/2000.

 

However, with the previous legislation about divorce by mutual consent, the Court did simply confirm the elements specified in the parties’ divorce settlement. As a consequence, should one of the parties not respect the settlement, then the other party necessarily had to initiate a new proceeding (for example before the « Justice de Paix » in order to get a judgment condemning the party to the payment of a child support) in order to get an enforceable title in that matter.

 

This new provision introducing the accreditation by the Court of agreements that parents or spouses have reached together shall be highly welcomed, since such a possibility denotes a security for the parties in order for their agreements to be immediately executed in the event of non-compliance of the measures it contains.

 

 

 

 

The family law reform instituting the principle of joint parental authority: the pursuit of equality for all the parents independently of their legal status

ARTICLE

REAL, Avocats à la Cour

 

The parental authority reform was becoming essential due to the new forms of parenting and the necessity, repeatedly mentioned by the Constitutional Court, to put the parents on an equal footing and this regardless of their matrimonial status.

 

The legislator indeed observed that the legal provisions that existed prior to the law of 27 June 2018 did no longer reflect the reality of the Luxembourg society, since marriage is nowadays largely competing with other forms of unions. In addition, the former provisions of the Civil Code regarding parental authority has already been declared unconstitutional by a Constitutional Court’s judgement dated 26 March 1999.

 

The parental authority reform enshrines the general principle of joint parental authority (1). The legislator also ensured to regulate parental authority in cases of parental separations (2).

 

  1. The principe of joint parental authority established as a general rule

 

The law of 27 June 2018 expressly introduced the principle that parents, regardless of whether they are being married or not, jointly exercise the parental authority in relation to their child. The very notion of parental authority has also been defined in the new Article 372 of the Civil Code as being a set of rights and duties aimed at meeting the child’s best interest.

 

The former rules applying to the allocation of parental authority considerably varied depending on the parents’ matrimonial status. Both parents indeed jointly exercised parental authority whenever the children were born during their marital union. Unless the parents made a joint declaration before the guardianship judge or a court decision ordering a joint parental authority, such parental authority could in accordance with Article 380 of the Civil Code only be exercised by the mother when the child was born out of wedlock, even if both parents had recognised the child.

 

The Constitutional Court declared the legal provisions to be contrary to Article 11(2) of the Constitution in the above-mentioned judgement.

 

The principle of joint parental authority operated by the new law nowadays requires both of the parents to consent to all usual and unusual acts relating to parental authority. A parent’s consent is however presumed when the other parent takes a decision, which is qualified as a usual act. Such presumption does yet only apply regarding usual acts. Indeed both parents’ consent must be given with regards to non-usual acts, so that a parent’s consent cannot be presumed in that case.

 

In case of disagreement between the parents regarding a decision that needs to be taken, a parent is free to refer the case to the family court judge who will have to rule on the case depending on the child’s best interests.

 

The corollary of the principle of shared parenthood consists in the fact that a parental separation shall in no way affect the principle of joint parental authority. The principle applies to parents, regardless of them being married, divorced, separated or in a registered partnership. The law has introduced a uniformed system concerning the execution of terms and conditions applying to parental authority.

 

In case of a parental separation, the child’s right to maintain a family link with both of his parents is recognised whereas each parent has the obligation to maintain personal links with the child. This rule applies not only to the parent with whom the child ordinarily resides but also to the other parent to whom the parental authority or the child’s habitual residence has not been granted.

 

  1. Parental authority in case of parental separation

 

The new law wishes to promote the parties’ agreements especially in case of separation, this in line with the concept of joint parenthood. The parents may formalise their agreement regarding the terms and conditions of joint parental authority in a settlement, which can, at their demand, be accredited by the family court judge.

 

A major innovation now consists in the introduction in the Civil Code of a possibility of an alternating residence, allowing the residence of the child to be alternatively fixed at each of the parent’s residence. This innovation shall however only be limited to cases where both parents agree with such possibility.

 

The alternating residence does not require a strictly equal distribution of time that the child has to reside at each of the parent’s residence. It however supposes a certain geographic proximity between the parent’s respective residences as well as a good understanding between the former spouses, in the common child’s best interests.

 

If the exercise of a joint parental authority in cases of post-separation of spouses is the principle, the family court judge can however assign the exercise of such parental authority to only one of the parents when the child’s interests require to do so. The parent who does not or partially exercise such parental authority retains, in theory, a right of access and accommodation, except if serious reasons are opposed.

 

Regarding the exercise of the rights of access and accommodation, the legislator intended to dedicate a practice, which currently already exists, by which the rights of access can be exercised at a meeting place or in the presence of a third party but only if it respects the child’s best interest or when the child’s return suggests a danger.

 

Furthermore, in order to prevent international abductions of children or in cases of non-return of children following the exercise of a parent’s rights of access and accommodation, the legislator has introduced the possibility for the family court judge to order in exceptional circumstances, an inscription in the child’s passport mentioning that the child is prohibited from leaving the Grand-Duchy of Luxembourg’s territory without both of the parent’s consent.

 

The legislator also decided to expand the scope of people who are able to apply for rights of access, or even rights of accommodation to third parties who are not necessarily members of the child’s family.

 

Based on the parental authority reform, it must be pointed out that the parents are now put on an equal footing, and this regardless of their status with the primary goal of adapting the law to the evolution of society and in particular to the diversified forms which a family can nowadays take.