International relocation of children in France: overview
A Q&A guide to international relocation of children in France.
This Q&A gives a high level overview of matters relating to rights and responsibilities of parents, right to remove, procedure for relocation, dispute resolution in relocation matters, right to appeal, as well as child abduction.
This Q&A is part of the global guide to international child relocation law. For a full list of jurisdictional Q&As visit www.practicallaw.com/relocation-guide. To compare answers across multiple jurisdictions, visit the International Relocation country Q&A tool.
For an introduction to the guide, see the foreword to the International Relocation of Children Global Guide by Mr Justice Stephen Cobb.
Rights and responsibilities of parents
Legal responsibility for upbringing
Both parents of a child normally share parental responsibility over their child during his or her minority, that is, until the child is 18 years old (Article 371-1, Civil Code ( CC)). Parental responsibility does not depend on the status of the parents as a couple. Married and unmarried parents have equal rights in this respect.
If both parents are registered on the child's birth certificate at the time of his or her birth, they will both exercise parental rights. If the parents are unmarried and one of the parents is not registered on the child's birth certificate within the first year of the child's birth, that parent will not have parental rights. Alternatively, parental rights can be acquired via a joint declaration of both parents before the chief clerk of the High Court (Tribunal de Grande Instance) or following a court order (Article 372, CC). French family judges will easily grant joint parental responsibility.
Rights and responsibilities post-separation
The separation of a couple does not impact per se the parental rights of the parents who continue to exercise jointly their parental responsibility over their child (Article 373-2, Civil Code (CC)).
However, when a couple separates, a court order is usually made at the request of one of the parents in relation to child support, residence and contact rights.
When a residence order is made in favour of one of the parents, it does not impact the parental responsibility of the other non-residential parent and both parents will continue to exercise jointly their parental responsibility. In exceptional circumstances, a court can consider it necessary to deprive the non-residential parent of his parental responsibility over the child and in such case only the residential parent will exercise parental responsibility over the child (Civ.1re, 20 February 2007).
The Law of 4 March 2002 (No. 2002-405) has set as a primary principle that in case of separation of the parents, a shared/alternate residence order (résidence alternée) can be made in favour of both parents (Article 372-2-9, Civil Code).
Such shared residence order can be granted following an agreement of the parents presented before the court or, in case of contestation, by an order from the court.
French case law stated that a shared residence order does not necessarily imply that the child will spend an equal amount of time at the home of each of his or her parents (Civ.1re, 25 April 2007).
If a shared residence order is not made, then a residence order will be made in favour of one of the parents, granting the other parent contact rights.
Following a recent survey in 2012, only 21% of the divorced couples had a shared residence order in place for children above six years old. The ratio falls to 13% for children below six years old.
In 73% of the cases, the mother has a residence order made in her favour.
When a residence order is in favour of one of the parents, the other parent will usually benefit from large contact rights and overnight stays. In France, contact rights consist of alternate weekends (from Friday after school, or Saturday morning to Sunday evening or Monday morning, the parent bringing the child directly to school), plus often an overnight stay during the week if distance permits (Tuesday night until school Wednesday morning or Wednesday evening) and half of the school holidays which in France are around 16 weeks per year.
Custody and access
In France, when a couple separates, an order will usually be made with respect to custody (parental responsibility) and access (residency and contact) together with child support.
In France child support is not set by an independent agency and therefore results most of the time from a court order.
In case of unmarried parents or partners of a Pacs (French civil partnership), it is theoretically possible for them to separate without any court order being made in relation to their children and sometimes parents manage the above matters only by way of a private agreement made between them.
However, such private agreements are not enforceable per se and if one of the parents refuses to comply with the agreement, the other parent will have to apply to court to obtain an order.
In the course of the divorce, a family judge will make orders in relation to the children of the couple.
At the initial stage of the divorce, a non-conciliation order (Ordonnance de non-conciliation) sets out interim measures in relation to child support, custody (parental responsibility) and access (residency and contact), and other matters in relation to the spouses (such as occupation of the family home, interim spousal support, and so on).
Such a non-conciliation order can be amended in relation to the children in case of a change of circumstances and if the best interest of the children justifies doing so.
If such non-conciliation order is not amended during the course of the divorce proceeding, the final order (Jugement de divorce) granting the divorce, will usually confirm the interim measures on custody (parental responsibility) and previously agreed access (residency and contact) in relation to the children, and rule on the financial rights of the spouses.
Courts orders are made within the course of the divorce process in relation to children (see above).
Court orders can also be made independently from a divorce process, in case of unmarried parents or between ex-spouses in relation to the arrangements to be made for their children.
An order made in relation to a child can always be varied if there is a change of circumstances and the best interest of the child justifies doing so.
A court order can:
Set out custody (parental responsibility) and access (residency and contact).
Order a forensic expertise (expertise medico-psyhologique) to carry out an investigation in relation to the parents and the children of the family.
Order a welfare report (enquête sociale) to assess the situation of the family.
Further, a parent can obtain an order from the court preventing a child leaving the French territory (Interdiction de sortie du territoire) if there is reasonable evidence of the risk of abduction (Article 373-2-6, Civil Code).
Finally, a court can order the return of a child in the country of his/her habitual residence following abduction.
Relocation/right to remove
Relocation cases are a familiar feature of family law in France. An increasing number of family cases trigger the relocation of the child either to a different city in France or to another country.
Relocations have become harder to obtain even within the French territory. Judges take the child's best interest into consideration. There are no specific guidelines for relocation. However, French case law provides examples of factors that judges consider as important, including:
A continuity in the education of the child (is the child to be registered in a French or international school? If the child is a native French speaker, the court will favour a French speaking school abroad or an international school with extensive teaching of French).
The existence of links with the new place of residence (nationality, language, family members, previous place of residence and so on).
The age of the child, especially if the child is very young there will be a slight maternal preference.
The capacity of preserving contact with the left behind parent and, if applicable, the French family (what are the local dates of school breaks? How feasible are the trips back and forth? Is there a possibility of skype communications?).
The duration of the stay abroad and reasons justifying the wish to relocate of the parent.
The distance between France and the country of relocation.
A precise description of the child's proposed new environment and the capacity of the parent wishing to relocate to provide adequately for the child's day-to-day needs and wellbeing.
Further, the judges will also consider whether the court of the future place of residence of the child will enforce and/or acknowledge the French order without varying it.
When children are capable of discernment, the judge will take into account their wishes and feelings. Usually, the judge will hear children around the age of eight or older, on their own or on the parents' request, but it can vary depending on the circumstances and maturity of each child (Articles 388-1 and following, Civil Code (CC)) (see Question 15).
However, the child is not a party to the proceedings.
General principles and guidance
Under Article 373-2 of the Civil Code (CC), the separation of the parents has no influence on the rules of devolution of the exercise of parental authority. Both the father and mother maintain personal relations with the child and respect the bonds of the latter with the other parent. Any change of residence of one of the parents, where it modifies the terms of exercise of parental responsibility, will be the subject of a notice to the other parent. In case of disagreement between them, one of the parents will refer the matter to the family judge who will rule according to what the welfare of the child requires. The judge will apportion removal expenses and adapt accordingly the amount of the contribution to the support and education of the child.
In France, both parents must agree on relocation. The parent who wishes to relocate must inform in advance and in due time the other parent whether the proposed relocation will affect the exercise of parental responsibility, namely access and/or residency (Article 373-2, 3rd para, CC).
In case of disagreement, the parent who wishes to relocate must apply for leave to remove with the family judge (juge aux affaires familiales).
The French Supreme Court (Cour de cassation) directly referring to its provisions stated the child's best interest is the paramount principle in all proceedings involving a child (Article 3-1, United Nations Convention on the Rights of the Child 1989, and Article 371-1, Civil Code (CC)).
The child's best interests include the right to have personal relations with his/her mother and father (Article 373-2, paragraph 2; CC).
Case law will also take into account the need of stability for the child in terms of day-to-day care (parent's ability to provide for it), education (maintaining a continuity of education), social environment (preserving the social environment of the child), and communication between the parents (avoiding tensions).
To determine the child's best interest, the judge will consider:
The agreements entered by the parents or the existing situation.
The wishes and feelings of the minor child.
The ability of each of the parents to fulfil his or her responsibilities and to respect the rights of the other parent.
Forensic expertise or any expertise having regard especially to the age of the child.
Any welfare reports.
Violence or psychological pressure between the parents.
Articles 371-4 and 371-5 of the CC further provide that the child has a right to maintain a relationship with his/her paternal and maternal family and cannot be separated from his/her siblings. However, these two principles are not paramount when ruling on relocation but will be taken into consideration.
Finally, in practice when a shared/alternate residence order is in place between the parents, relocation is very rarely granted (CA Versailles, 16 July 2009, No. 09-04620).
In the past decade, the French Supreme Court (Cour de cassation) has strengthened its control on the conditions of relocation in the light of the child's best interest and relocation has become harder to obtain from lower courts.
There is no specific guidance to help the judges to apply the principles correctly as to one parent's relocation.
Judges tend to adopt a pragmatic approach in assessing the child's stability in his/her future environment and the effectiveness of maintaining his/her contacts with the left behind parent once the relocation will have taken place.
Judges will also have regards to transportation costs for the child or the left behind parents in order to maintain contact and take these into account when ruling on the child support, and the ability shown by the relocating parent to preserve the links of the child with the left-behind parent.
Procedure for relocation
A leave to remove order is usually made within two to three months from the application being lodged with the court.
The family judge rarely orders a forensic expertise or a welfare report in cases of relocation. Often such cases are brought before the judge on an emergency basis before the summer holidays so that the relocation can take place during the summer.
It is always possible to make an appeal against the leave to remove order or against the refusal to grant such an order before the Court of Appeal. It is not necessary to obtain leave to appeal before doing so. However, the leave to remove order will be enforceable despite the appeal. If the child was relocated at the time the appeal was pending, the appellate judges will seldom reverse the initial order.
Duration of procedure
Relocation disputes determined by the family court often take on average three months between the time the application is lodged and the order is made. Such application can be ancillary to a divorce process or lodged independently as a free standing application.
An opposition to a child's departure from France (Opposition à la sortie du territoire) can be lodged with the police in case of emergency by one of the parents if the child is a French national. This opposition made by the parent at the prefecture or police station is then registered at the National Wanted Persons File (fichier des personnes recherchées) by the prosecution services and will have a duration of 15 days. The parent who intends to leave the country will not be able to cross the French border with the child. Such opposition is not notified to the other parent and is not renewable.
Alongside this opposition, a parent can obtain a court order preventing a child to leave the French territory (Interdiction de sortie du territoire, IST) if there are reasonable grounds to evidence that there is a risk of abduction (Article 373-2-6, Civil Code). Equally, the order will be registered at the National Wanted Persons File (fichier des personnes recherchées) by the prosecution services.
Such an order can be obtained on an emergency basis if necessary. The order will sometimes state the period of time for which the child is prevented to leave the French territory. If the duration is not stated in the order, a new application must be made to lift the existing order and permit the child to travel freely outside France.
This order is transmitted via the prosecution services to all countries in the Schengen area. Therefore it makes it more difficult for a prospective abducting parent to board a plane with the child.
When such an order preventing the child to leave the French territory is in place, the child will not be entitled to travel outside France without both his parents. If only one of the parents is travelling, a form signed before the French police by the non-travelling parent authorising the child to travel to a specific country and for limited and specified period is required.
When the child is not a French citizen, the effectiveness of such order, especially in the Schengen area, is not guaranteed. Often, it will be necessary to ask for the remittance and deposit of the other parent's passport with his/her lawyer during the time of his/her access to the child, if that parent is not a French national and there is a risk of abduction.
Alternative dispute resolution (ADR)
Methods of ADR are often used to resolve disputes in matters of relocation before French courts. These methods are preferred over litigation as French courts are quite reluctant to authorise the relocation of a child when one of the parents is opposing it. Thus, a parent who wishes to relocate a child is usually encouraged by his or her lawyer to enter into an ADR process and reach an agreement with the other parent.
Recently, procedural law has introduced an obligation to evidence that an ADR process has been put in place (Articles 56 and 58; Civil Procedure Code) before lodging an application with the court. However, an ADR process is not required in case of emergency or if legitimate reasons are given.
Factors in relocation cases
Article 12(2) of the United Nations Convention on the Rights of the Child puts a general duty on signatory states to ensure that children have the right to express their views and that they have the right to be heard in any judicial and administrative proceedings. This provision has been declared directly applicable in the French legislation (Conseil d'Etat, 27 June 2008, Mme Etarh, n° 291561).
Article 388-1 of the Civil Code, directly inspired by Article 12(2) of the United Nations Convention on the Rights of the Child, provides that in any proceedings where a child is involved, the child "capable of discernment" can be heard at the judge's discretion, either directly by the judge or by a person appointed by the judge to that effect. However, when a child capable of discernment requests to be heard, such a hearing cannot be refused by the judge. This provision applies to relocation cases as well as any case in which a child is directly involved.
There are essentially two channels that can be used (either separately or combined) to ascertain the child's views: the child can be directly heard by the judge or a welfare report can be ordered. In most cases, the child is directly heard by the judge. However the judge has a complete discretion in deciding which channels to use. A circular note published by the French Ministry of Justice on 16 March 2007 recommends the appointment of a qualified professional every time the child has endured a level of pressure that might have compromised his or her psychological balance.
Children are generally considered not to be capable of discernment when they are too young or when they suffer a very high level of pressure which renders it impossible for them to hold an independent view.
There are no specific rules as to how the child should be heard but the judge must always mention that he/she took the child's views into consideration before making his/her decision (Civ. 1re, 20 November 1996; n°93-19937).
On request, the child may obtain a legal aid lawyer, not means tested, and many bar organisations in France have set up a special body of lawyers with special training for children cases.
In relocation cases, the child's view and feelings are often considered as an important factor which may tip the balance.
Offers of security
Offers of security for the return of the child to spend time with the other parent are often used to reassure the judge that the child will not be deprived of his/her right to see the other parent, despite the distance.
Therefore, when a parent lodges an application for relocation, it is very frequent that he/she suggests granting very large access and visitation rights to the other parent. In such an application, the parent who wishes to relocate the child generally offers that the child spends most of the school holidays (for example, two-thirds) with the other parent. The possibility for the relocating parent to accommodate or assist in providing accommodation to the left behind parent combined with large access on the territory of the new place of residence of the child is appreciated.
The relocating parent may, in some cases, offer to cover the costs of the proceedings for recognition of the order, when not relocating in the EU. When the country of relocation has not signed any treaty with France, he or she may also offer to wait for the recognition order to be granted before moving.
Rights of appeal
The parent who is dissatisfied with the decision of relocation can appeal it within one month or 15 days (emergency procedure, or référé) starting to run after the service of the decision by a bailiff. However, the order authorising the relocation of the child is enforceable by provision (Article 1074-1; Civil Procedure Code). As a general rule, there is no leave to appeal in France, except if the amount in litigation is too low.
Overview/domestic and international law
France has ratified:
The Hague Convention of 25 October 1980 on the Civil Aspects of Child Abduction (Hague Child Abduction Convention).
The Brussels II Regulation.
Both texts set up a mechanism by which the courts of any contracting states must order the immediate return of a child wrongfully abducted to his or her country of residence (Article 12, Hague Child Abduction Convention and Article 11, Brussels II Regulation).
Abducting a child is also a criminal offence under French law. Under Articles 227-5 (where there is a court order) and 227-7 (where there is no court order) of the Criminal Code, a parent who abducts a child from "the hands" of his or her main carer (more often the parent with whom the child lives) faces criminal charges (one year of imprisonment and a fine of EUR15,000).
This sentence is aggravated when the child has been kept for more than five days in a place unknown to the other parent or when the child has been wrongfully retained outside of the French territory (Article 227-9, Criminal Code). In such cases, the abducting parent faces three years of imprisonment and a fine of EUR45,000.
In the Hague Child Abduction Convention, there are three exceptions to the swift return of the child, which are seen as necessary to address the tension between the protection of the child's overall interest not to be abducted, and the particular interests of an individual child not to be returned. Therefore, three defences can be raised by a parent:
The human rights exception (Article 20, Hague Child Abduction Convention).
The grave risk of harm exception (Article 13-1.b, Hague Child Abduction Convention).
The child's objections exception (Article 13.2, Hague Child Abduction Convention).
The human rights defence is seldom used in practice, as ratification by a new member state must be accepted by another member state which usually checks the legal system of the accessing state.
The grave risk (Article 13-1.b, Hague Child Abduction Convention) is surely the most commonly used defence under the Hague Child Abduction Convention. It gives the judge discretion to return the child if he finds that there is a grave risk that the return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The French Supreme Court (Cour de cassation) does not interpret this provision liberally. Each time this defence is raised, French courts must check whether there is an immediate danger for the child on return (Civ. 1re, 23 October 1990, n° 87-16873). The source of the danger must be found in the reunion with the left behind parent itself (Civ. 1re, 12 July 1994, Rev. crit. DIP 1995. 102). The fact that the child has integrated in his new environment cannot be taken into account when ascertaining the danger (Civ. 1re, 26 October 2011, no 10-19.905). French courts also check if the legal provisions in the country of origin allow protection for the child on his or her return.
The other defence that can be raised by a parent is the child's objections exception. Under Article 13(2) of the Hague Child Abduction Convention, the judicial or administrative authority can also refuse to order the return of the child if it finds that the child objects to being returned, and has attained an age and degree of maturity at which it is appropriate to take account of his or her views. This exception is a separate and independent defence that does not depend on any grave risk of harm.
The French Supreme Court (Cour de cassation) considers that the sole fact that the child objects to being returned is not enough to justify a non-return decision (Civ. 1re, 14 February 2006, n°05-14646). The court exercises a control on the motivations of the child for objecting. Therefore, it is not enough that the child objects: he or she also must have "good" reasons for objecting, the assessment of which is at the discretion of the judge. If the child opposes his or her return and grounds his opposition on fear, the courts will be more inclined to refuse the return.
However, there is no clear guidance as to how this exception should be applied. For example, in a recent case, the French Supreme Court (Cour de cassation) noted that the child wanted to stay in the country of abduction and decided that he or she should not be returned. In the point of view of the author of this chapter, such a decision does not comply with the Hague Child Abduction Convention requirements, as the Cour de cassation did not make a clear distinction between the child's objections and the child's views and feelings (Civ. 1re, 17 October 2007, n° 07-11449).
In the Hague Convention proceedings and in any other type of cases where a child is involved, the decision to hear the child is at the judge's discretion under the Article 388-1 of the Civil Code (see Question 15). In most cases, the judge will take into account the age and level of discernment of the child to decide whether or not the child should be heard. Due to the impact of the Brussels II Regulation, more courts hear children.
There is no specific age limit and no threshold in relation to the level of discernment/ maturity required to hear the child but the younger the child is, the less likely the judge will consider that he or she has the maturity required to be heard.
However, when applying the Brussels II Regulation, the judge must always justify in his decision why he decided not to hear the child. Under Article 11(2) of this Regulation, the child must be given an opportunity to be heard during the proceedings unless this appears inappropriate due to his or her age and degree of maturity. It is up to the lawyers representing the parties to encourage the judges to hear children while making clear that the court cannot take into consideration such criteria as "feelings/choice" of the child because the order of return is not considered on the merits.
It is also important to notice that there is a clear difference between taking into account of the child's views and abiding by his views. Again, the child's view is to be taken into account on the country of habitual residence.
The French National Assembly (Assemblée Nationale) has prepared a draft law (projet de loi) relating to parental authority. This document is only a draft at this stage and has not been incorporated in legislation.
In this document, it is suggested that the residence of the child should always be determined on an alternated/shared basis. The parents (or the judge when the parents have not reached an agreement) will need to organise the practical modalities of such "shared" residence. According to this proposal, it should be only in exceptional circumstances that the judge orders that the child's habitual residence is with one of his parents.
The drafters of this document also suggest that the parent who wishes to relocate should always obtain the agreement of the other parent before taking any step toward the envisaged relocation, as opposed to the current requirement of simply informing the other parent of his or her intention to relocate.
If these new provisions are introduced, relocation cases will become almost impossible. As indicated, it is more difficult to obtain a leave to remove when there is a shared residence order in place. Equally, in order to establish that the future move will respect the child's best interest, it is often necessary to present to the family judge a clear picture of the child's future environment, which requires that effective steps have been taken such as provisional registration with a school, renting of a house, and signing of a work contract.
*The author would like to thank Madeleine Diébolt, lawyer, CBBC for her contribution to the article.
The Hague Conference on Private International Law
Description. Official website of the Hague Conference on Private International Law.
Description. The French Family Judge database listing Private International Law applicable in family matters.
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Charlotte Butruille-Cardew, Managing partner
Professional qualifications. Lawyer at the Paris Bar (Avocat au Barreau de Paris); Registered European Lawyer, Law Society England and Wales; Accredited specialist of Family Law at the Paris Bar.
Non-professional qualifications. Master of Law, Paris II Assas; LLM King's College UK; Phd, Paris in collaboration with the London School of Economics, Program of Negotiation (Harvard Law School).
Areas of practice. Family law, international family law.
Languages. French, English
Professional associations/memberships. Head of Alternative Dispute Resolution at the Paris Bar (Bar school and professional education of lawyers); Collaborative law instructor (Paris Mediation School and IFOMENE); Governor of IAML; International Family Law Journal correspondent.
- Family Law Global Guide (Practical Law), Thomson Reuters, Third Edition 2015, Contributor.
- International pre-nuptial and post-nuptial agreements, David Salter, IAML President Charlotte Butruille-Cardew and Stephen Grant, Family Law IAML.
- Alternative dispute resolution guide (Le guide des modes amiables de résolution des différends), Nathalie Fricero, Charlotte Butruille-Cardew, Linda Benraïs, Béatrice Gorchs-Gelzer, Guillaume Payan, 2014-2015 Dalloz.