Yes, this Convention came into force on 1-6-2012.

1.1 Which law applies to questions of custody and legal representation of a minor? Which criteria are used to determine the applicable law?

The Hague Convention prevails over national law by express stipulation of the Constitution. The Convention opts for the law of habitual residence of the child and the applicable law in this case is the law of the competent court.

Greek law stipulates that in matters of parental custody the law which applies is in the following order: 1. the law of their last common nationality, 2. the law of the last common habitual residence 3. the law of the nationality of the child (Art. 18 GCC).

1.2 Which authority has international and territorial jurisdiction concerning questions of custody?

Concerning international jurisdiction, if the minor has its habitual residence in an EU Member State bound by Council Regulation (EC) No 2201/2003 (Brussels IIa Regulation) the application of this Regulation will prevail over both the Hague Convention and Private International Law rules. Thus, Article 8 of the Regulation in general sets out that international jurisdiction will belong to the Courts of the Member State where the child has its habitual residence.

If the minor has its habitual residence outside an EU Member State bound by Council Regulation (EC) No 2201/2003 (Brussels IIa Regulation) but in a State party to the Hague Convention, international jurisdiction will be attributed to the judicial and administrative authorities of the Contracting State of the habitual residence of the child, in order to take measures directed to the protection of the child’s property or person (Article 5 Hague Convention).

According to Greek private international law, under Art. 24 GCC the guardianship and any matter of custody are governed by the law of the nationality of the person concerned. Also, the Greek court may appoint a guardian or curator for a foreign person who is habitually resident in Greece. If the foreign person merely resides or has property in Greece, precautionary measures can be taken. (Art. 24 GCC)

1.3 Which authority has international and territorial jurisdiction concerning questions of representation?

No distinction is made in international private law between custody and right of representation (which is mainly included in custody), therefore the above applies.

The age of full legal capacity is 18 (Art. 127 Greek Civil Code – GCC).

Up until the age of 18, the following apply:

From birth to the age of ten, the child lacks legal capacity and cannot enter into legal transactions (Art.128.1).

After the age of 10, the child has limited legal capacity (Art 129.1 of the Greek Civil Code – GCC) with the following distinctions:

Pursuant to Art. 134 GCC, the minor who has reached the tenth year is able to enter into legal transactions from which he/she only acquires legal benefits.

Pursuant to Art. 135 GCC, the minor who has completed the fourteenth year may freely dispose of anything that he/she gains from his/her personal work or that is given to him/her in order to use it or to sell it freely.

Pursuant to Art. 136 GCC, the minor who has completed the fifteenth year may, with the general consensus of persons exercising his/her custody, conclude an employment contract as a worker. If consent is not given, the court decides at the request of the minor.

2.1 Is it possible that in some cases the legal capacity of a minor is extended (e.g. right to get married, right to make last will)?

Yes

2.1.1 Is a decision required to extend the legal capacity? If so, who is competent to decide on the extension of the legal capacity?

The following is foreseen regarding the married minor:

Pursuant to Art. 137 GCC, the married minor may only enter into any legal act that is necessary in order to maintain or improve his/her property or to meet the needs of his/her personal maintenance and education and the current needs of his/her family. He/she can also: 1. lease his/her real estate property, urban or rural, for a maximum of six years, 2. collect the income from his/her real estate property, 3. conduct him/herself any legal proceedings to the courts relating to these transactions.

Regarding the conditions for a minor to marry, if there are special reasons like pregnancy, the custodians of the minor ask the court or the church.

2.1.2 List the transactions that the minor may enter into alone (e.g. the right to make a last will) with reference whether approval of some other person or authority is necessary for such transactions.

Theoretically, since the minor who has reached the tenth year is able to enter into legal transactions from which he/she only acquires legitimate interests (Art. 134 GCC, when the child gets a donation of real estate property from someone (parent, grandparent, etc.) he/she can sign the notarial authentic document by him/herself. In practice though, all notaries request that both parents sign the notarial authentic document on his/her behalf.

Both parents.

Pursuant to Art. 1510 GCC, the care of the child is the duty and the right of his/her parents (parental responsibility, custody) who practise it together. Parental care includes the care of the person, the administration of his/her property and the representation of the minor in each case or transaction or trial, relating to his/her person or property.

If parental care ceases because of death, declaration of absence or revocation of one of the parents, parental authority belongs solely to the other parent.

If one parent is unable to exercise parental responsibility due to real reasons or because he/she has no legal capacity or has limited legal capacity, the parental responsibility is exercised by the other parent alone. Custody of the child, however, is exercised even by a minor parent.

Pursuant to Art. 1515 GCC, the custody of a child born outside of marriage belongs to the mother. In case of legal recognition of the child by the father, the father also acquires parental responsibility, but he can exercise it if there is parental agreement under Article 1513 GCC or the custody of the mother is stopped or if she is unable to exercise it for legal or actual reasons.

At the request of the father, the court may in any other case entrust to him the exercise of parental authority or part of it, if this is in the interest of the child.

If the child’s interests conflict with the interests of his/her father or mother who exercise parental authority, or conflict with the interests of his/her parents’ spouses or their relatives by blood or by marriage in straight line, then a special commissioner is appointed, Art. 1517 GCC.

Pursuant to Art. 1517 GCC, the custody of the child includes his/her upbringing, supervision, education and training, and the determination of his/her place of residence.

In the upbringing of the child, the parents, without making distinctions based on the child’s sex, have to help the child to develop his/her personality responsibly and with a social consciousness. Taking correctional measures is only permitted if these are pedagogically necessary and do not affect the dignity of the child.

In the education and training of the child the parents take into account the abilities and personal inclinations of the child. For this purpose, they must cooperate with the school and, if necessary, seek the assistance of relevant governmental departments or public organisations.

3.2 Who will appoint the custodian(s), if either one or both parents/custodians are not able to act anymore (e.g. in case of death or loss of legal capacity)?

3.2.1 On who’s proposal and when the decision on appointment of custody is made?

3.2.2 Is the competent authority free in its choice of a new custodian? 3.2.3 Can the right of custody belong to several persons? Is it possible to have different custodians for different areas (care of property/care of the child itself)?

Pursuant to Art. 1532 GCC, if the father or mother violate their duty as legal custodian of the child regarding the care of his/her person or the administration of his/her property or if they exercise their duty improperly or they are unable to respond to it, the court may, upon request of either the other parent or the closest relatives of the child or the prosecutor or the court by its own motion, order any appropriate measure.

The court may in particular remove a parent from the exercise of parental responsibility in whole or in part and assign it exclusively to the other parent or, if the same applies for the other parent, may entrust the care of the child or, even, custody in whole or partly to a third party or may appoint a commissioner.

In cases of extreme urgency, when the circumstances of the first subparagraph apply and there is imminent danger to the physical or mental health of the child, the prosecutor may order any appropriate measure to protect him/her, until the issue of the court’s decision, which must be addressed within thirty days.

Also pursuant to Art. 1533 GCC, the removal of the entire custody of the child from both parents and the placement of third persons as custodians is ordered by the court only when other measures have proved fruitless or when it is necessary in order to prevent risk to the physical, intellectual or mental health of the child.

The court defines the extent of parental responsibility granted to the third person and the conditions of its exercise.

The court decides to give the actual care or custody to a third person after checking the character, living conditions and general suitability of the person, necessarily based on confirmation of the social services. The choice of appointment of a proper family is made preferably by the family and, if this is not possible, an appropriate institution.

Art. 1535 GCC provides that the court removes the exercise of parental responsibility from both parents for a good reason, if they ask for this themselves, indicating the person who agrees to take the exercise. With the decision to remove the parental care, the court assigns the exercise to the indicated person or to another person, and specifies the manner of its exercise. When lacking such determination, the respective provisions for the guardianship apply.

It is not really possible to have different custodians for different areas.

3.3 How and by whom will be determined the right of custody if the parents are arguing about it? Is there a difference between married and unmarried couples?

If the parents disagree in the exercise of parental responsibility, and the interest of the child requires a decision, the court decides, Art. 1512 GCC.

There is a difference between married and unmarried couples. In unmarried couples, the right of the mother prevails; see in answer 2.1 the relevant Art. 1515 GCC.

3.4 May the right of custody be transferred to another person by means of a power of attorney?

Greek law does not provide for such a power of attorney for transfer of custody.

Parental custody includes the legal power of representation. Therefore, in the case of joint custody, parents also in principle have joint powers of representation. Where custody is held by only one parent, this parent has sole rights to represent the child.

4.1 Who will appoint the legal representatives, if either one or all parents/other persons) are not able to act anymore (e.g. in case of death or loss of legal capacity)?

4.1.1 On who’s proposal and when the decision on appointment of a legal representative is made?

4.1.2 Is the competent authority free in its choice of a new legal representative?

4.1.3 Can the right of legal representation belong to several persons? Is it possible to have different representatives for different areas?

Power of representation is mainly included in custody. The comments under 3.2 therefore apply accordingly.

4.2 Are there any restrictions / extensions for the legal representative(s)?

Greek law provides for a range of restrictions to the minor’s legal representatives.

The main principle is that the parents as first order caregivers and legal representatives of the child shall act and conclude transactions only in the child’s interest. The same applies for other types of legal representative of minors such as guardians appointed by the Court.

4.2.1 Are there some areas in which the legal representative is not competent to act (e.g. drafting of a last will, entering into marriage)?

Yes:

1. the parents cannot grant donations out of the child’s property, Art. 1524 GCC
2.  the parents shall ensure profitable investment of the child’s cash, Art. 1525 GCC
3. If the child inherits, it is deemed to have accepted the inheritance subject to inventory.
4. The parents cannot sell any property belonging to the minor unless there is a specific Court Decision.

The same principles set above apply also for the guardianship of minors. (Art 1606 GCC)

Furthermore, neither the parents nor any appointed legal representative can conclude personal transactions such as marriage, a registered partnership or a will.

4.2.2 Is there a connection between the right of custody and the representation rights (e.g. power of representation exists only in the areas of custody)? Would it be possible that both parents have custody but only one has the right of representation in transactions with some property of a minor?

The right of custody contains in itself the right of representation, which is exercised in general jointly by the parents. It is not foreseen by Greek law that both parents have custody but only one has the right of representation in transactions in relation to some property of a minor.

4.2.3 Is it required that all legal representatives are concluding the transactions on behalf of the minor jointly (e.g. both parents) or may the transaction be concluded by one legal representative of the minor alone (e.g. one parent)?

All legal representatives (e.g. both parents).

4.2.3.1 Name the legal transactions (e.g. waiver of succession) the legal representative may perform on behalf of the minor if he/she is acting alone (e.g. one parent).

4.2.3.2 Name the legal transactions (e.g. waiver of succession) into which the legal representatives may enter on behalf of the minor only jointly (e.g. both parents).

4.2.3.3 Would there be any difference on the requirement of joint representation in case the parents have never been married? No / Yes (please specify).

Regarding unmarried couples, as mentioned before pursuant to Art. 1515 GCC, custody (which includes legal representation) of a child born outside of marriage belongs to the mother. In case of legal recognition of the child by the father, the father also acquires parental responsibility, but he can exercise it only if there is parental agreement or the custody of the mother is stopped or if she is unable to exercise it for legal or actual reasons.

4.2.4 Other restrictions for legal representatives:

4.2.4.1 Is it necessary that the transaction is approved also by some other person or authority (e.g. parent, court or local government)? What are the formal requirements on the form of the approval?

As stated above, in case the parents or other legal representatives (guardians) wish to sell any of the minor’s property, this transaction needs a prior Court Decision.

4.2.4.2 Name the transactions that persons legally representing the minor may enter into only with the consent of a court or some other authority or person appointed by law.

Article 1624 GCC: without the opinion of the supervisory board and the court’s permission, the guardian is not allowed in the name of the minor to:

1. dispose of the property of the minor, the whole or a part of it,
2. dispose of or to acquire in exchange property or rights on property,
3. waive a claim about the transfer of property to a minor,
4. dispose of his/her securities and valuables,
5. attempt any work on a property of the minor whose cost exceeds the annual living cost of the minor,
6. dispose of any commercial, industrial or other enterprise included in the minor’s fortune, decide on the dissolution and liquidation of his/her enterprise, establish new business,
7. lease property of the minor for a period exceeding nine years,
8. lend or borrow,
9. waive a claim for a security of the minor or reduce such security,
10. conclude a conciliation or arbitration agreement for an object whose value exceeds the annual living cost of the minor,
11. guarantee or take charge of a foreign debt. The court’s permission may be given subject to conditions.

All the above apply also in the case of the parents, Art. 1524 GCC.

4.2.4.3 In case of a mandatory approval of the transaction by another person (e.g. the other parent) or authority (e.g. court) is there any difference whether the approval is given before or after the transaction? What are the legal consequences for the transaction if the approval required by law will be denied?

According to Greek law, the Court’s decision is required before the transaction takes place. This is a “sine qua non” condition, without which the transaction is null and void.

4.2.4.4 Are there certain cases in which the legal representatives shall not act (e.g. contract on behalf of the minor concluded with parent or family member)? Please describe the appropriate procedure for resolving the problem if applicable (e.g. nominating another representative, court’s approval).

Pursuant to Art. 1627 GCC, the guardian cannot represent the minor in legal transactions and litigation where the interests of the minor conflict with his/her own interests or those of his/her spouse or relatives, in a straight line by blood or by marriage and collaterally by blood up to second degree.

In the abovementioned case, as in any case of other hindrance, the court shall, on application by the guardian or by its own motion, appoint a special guardian. When the special guardian is appointed to fill the guardian’s role temporarily in all projects of this inconsistency, the court may also specify the duration of this special guardianship, Art 1628 GCC.

4.3 Are there any other restrictions related to the rights of a minor (e.g. the right of succession) for the persons having the right of custody or the right of legal representation of a minor in addition to the restrictions specified above?

Regarding the right of succession, inheritance induced in the minor is considered to be acceptable always with the benefit of inventory, and the child, subject to the provisions of Article 1912, cannot be deducted from this benefit. Third parties who have a legitimate interest may require the parent, who has the administration, to prepare inventory within four months at the latest.

4.4 May the right of representation be transferred to another person by means of a power of attorney?

4.4.1 Is the consent of all legal representatives to the transfer mandatory?

4.4.2 Are there any restrictions to this type of power of attorney (e.g. the right of representation may not be transferred in its entirety or it cannot be transferred in regard to certain transactions)?

4.4.3 What are the formal requirements for this type of power of attorney?

Both parents may authorise a third party by means of a power of attorney to act on their behalf in the name of the child for specific actions.

The right of representation may not be transferred in its entirety.

The formalities to be followed depend on the type of the main transaction.

5.1 Does the law provide some kind of document, which gives evidence of the right of custody and/or representation?

The document for the legal representatives (parents) is the birth certificate and the certificate of family situation.

The legally appointed guardian obtains a copy of the court decision that appointed him/her.

5.2 Is there any other kind of document, proving the right of custody and/or representation?

The birth certificate can provide evidence of who the child’s parents are. The birth certificate (instead of the most often used certificate of family situation) can be used as an “identity card” for the child for example in cases when a child without an identity card (due to his/her age) will appear in a notarial act as receiving a donation of a real estate property, so the parents will sign with the birth certificate on his/her behalf.

6.1 What are the requirements for the formal validity of such a consent/permission/authorisation?

The parent that does not travel with the child gives his/her written permission (with verification of his/her signature from the Police or a Centre of Services for Citizens) for the child to travel abroad with the other parent.

Part 1: Protective measures for adults with loss of capacity

The Greek legal system provides that the protection of the person and/or property of adults with reduced capacity is exercised by guardianship (Articles 1666 to 1688 of the Greek Civil Code), which is instituted by the courts and entails being subject to legal assistance. 

Adults are subject to legal aid when, due to a mental or emotional impairment, or a physical disability, they are unable to attend to their own affairs in whole or in part or when, because of promiscuity, drug addiction or alcoholism, they endanger themselves, their spouse, descendants or ancestors. Minors within a year of reaching adulthood can be placed under guardianship for the same reasons.

Submission to legal aid is decided by the court, at the request of the patient or his/her spouse, if there is cohabitation, or of his/her parents or children or of the prosecutor or ex officio. When a person suffers only from a physical handicap, the court rules only on the individual’s application.

Depending on the degree of autonomy of the adult concerned (decided on the basis of an expert opinion) and whether the person can or cannot make decisions either independently or with the support of other people, the judge shall explicitly state in the decision the extent of the legal assistance required to handle personal or financial affairs. The court’s decision encompasses basically the following possibilities: 

• Full guardianship: the person is declared completely incapable of carrying out any act on their own and will be represented by a guardian for any act;  
• Limited guardianship: the person is declared incapable of carrying out specific acts on their own and will be represented by a guardian when carrying out these acts. These acts can concern one area or several areas. 
• Auxiliary legal assistance: the individual is not replaced in the decision-making process, but requires the approval of a guardian to carry out the specific acts determined in the Court decision. 
• The individual can be declared incapable of carrying out specific acts, while needing only the approval of their guardian for other acts. When the court subjects the person with legal incapacity to a combination of deprivation and auxiliary legal assistance, it explicitly defines in its decision which actions the person cannot undertake without the consent of his or her curator.
• The combination may also consist in the removal of the personal administration of the ward’s property, whether or not they are deprived at the same time of the right to freely dispose of the income derived from it.

The court may also entrust the guardian/curator with the custody of the assisted person in whole or in part. 

Before taking any action or decision, the curator must seek the individual’s opinion, which must be taken into account.

When a judicial decision is pending and measures are required for the administration of the individual’s assets, it is possible to appoint a temporary guardian.  

The type and scope of legal aid may be modified by the court by a subsequent decision.

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