A Critique Of Child Abduction Law In France

By Beatrice Biondi

Although in France the courts strictly apply the conventional provisions as a rule, it is nevertheless important for French magistrates to continuously improve their knowledge in this field to be fully able to make the right decisions that are both of a human dimension and legally appropriate for the international context in which they are taken.

This preoccupation by the French authorities has resulted in the law of 4 March 2002relating to parental authority and the provision of specialised courts for the hearing of cases involving international removal of children, thus following the system set up in the United Kingdom and in Germany. In this way such cases, previously tried by 181 county courts at first instance, will now be tried by only 36 courts, namely one court per appeal court jurisdiction. Furthermore, these courts as well as the appeal courts asked to rule on these matters will be presided over by specialised magistrates.

This new system came into force on the day this paper was written and is expected to promote more efficient management of this thorny issue. The specialised magistrates of these courts form a kind of domestic network and will thus be better suited to train the other field actors (such as the police and social welfare departments) for more  compliance with the spirit and letter of the Conventions by, notably, paying regard to the urgency of the procedures and the need to ensure the enforcement of court orders.

I cannot speak of the efficiency of actions without mentioning the human aspect of these situations that are extremely painful for parents and often result in irreversible trauma for the children. Aware of the human dimension of such cases, the French Ministry of Justice decided to adopt new measures to deal with these situations.

The first measure evolved from the acknowledgement by the French Central Authority of the limitations of its action. Faced with the immeasurable distress of wronged parents, it realised that the appropriate answer had to be much more than a legal solution. For this reason the past two years have seen the Central Authority comprised of a multi-disciplinary team including jurists and a social worker, who is in charge of the personalised tracking of files. The primary mission of this member of staff is to help parents cope with the practical, material, psychological and moral difficulties they may encounter.

I am personally convinced that the new organization of the French Central Authority has been beneficial to parents involved in these cases. I sincerely hope that this experience will be shared with other States. Furthermore, although the child's welfare demands the swift termination of the act of violence constituted by the international abduction of the child and as full protection as possible of his/her contact rights with both parents, it is also the duty of States to achieve these ends by way of solutions that are the least traumatic as possible for the child.

This objective may be reached by mediation, a course that is preferable on condition, and I insist on this point, that the implementation of this process does not jeopardize the possibility of subsequently instituting legal proceedings based on a conventional or community instrument.

In France, the “Mission for Assistance in International Family Mediation” was established within the Ministry of Justice for this purpose. Charged with handling the individual problems in cases of wrongful international removal of children or international disputes regarding access rights (cases that are frequently also monitored by the Central Authority), the Mission attempts to reach an amicable settlement by helping to restore communication between the parents.

Resorting to international mediation assumes, however, the informed agreement of the two parents and, when legal proceedings for a return are instituted, that the return is accomplished as swiftly as possible so that, should the mediation fail, the wronged parent would not be deprived of a serious possibility of having his/her parental rights restored through the procedures granted by the Conventions.

To date, the “Mission for Assistance in International Family Mediation” has recorded very encouraging results, with the signatory countries of multilateral and bilateral conventions as well as with countries not bound by such conventions. However, its work could become more effective if similar structures existed in the other States."

Providing wise and experienced legal counsel to international families for many years

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