Some 1500 children are abducted by a parent in France every year. The Convention offers only a partial solution to this difficult issue, as a great number of abductions are outside its scope. For example, many of the partners in binational couples living in France come from the Maghreb countries (Algeria, Tunisia, and Morocco) which have not ratified the Convention. Even in instances where the Convention applies, there are still difficulties and obstacles to overcome, such as locating the abducted children, the length of the proceedings, and the bias of some national courts.5
The top five contracting states which filed applications with France under the Convention are Germany, Italy, Great Britain, the United States, and Canada. The United States has approximately 21 cases pending before the French authorities. Of these 21 cases the United States is seeking the return of children in 10 of them, the other 11 deal with access rights.
The Convention came into force between the United States and France on July 1, 1988, following the enactment of the International Child Abduction Remedies Act by the United States. The Ministry of Justice, and more specifically, the Bureau de l'entraide judiciaire en matière civile et commerciale, has been designated as the Central Authority for France to carry out the duties imposed by the Convention.9 Upon receipt of an application for return, the Central Authority will check that it satisfies Convention criteria and is accompanied by the proper documentation. This authority will consider only those applications which are drawn up in French or are accompanied by a translation into French.
The file is then forwarded to the Procureur de la République (public prosecutor) attached to the civil court of general jurisdiction in the jurisdiction where the defendant resides. This court, known as the tribunal de grande instance, has exclusive jurisdiction over family matters. Initially, the parties are systematically encouraged by the Central Authority to reach an agreement; if necessary, an experienced mediator will be involved. An International Mediation Mission for Families was created at the Ministry of Justice in April 2001. It provides mediation services either at the request of the parents or of the competent authorities. The mediation will address issues, such as the exercise of parental authority, the residency of the child, and the effective visitation rights of the non custodial parent. The Mission is comprised of judges, social workers, and a psychologist. Since its creation, the Mission has been involved in about 100 cases.
All necessary measures will be taken to locate a child, protect his well-being, and prevent the child from being abducted or concealed before the final disposition of the case (interdiction to leave the French territory, inscription of the child name in the missing children registry). If mediation fails, the petition for return will be heard before a specialized judge, the juge aux affaires familiales (family affairs judge). However, the judge may decide to remand the case to a panel of three judges. Such remand is mandatory if it is requested by one of the parties.14 The decision rendered by the judge or the court is appealable. Provisional enforcement pending the appeal may be granted, but the court is not compelled to do so.
Alternatively, the petitioning parent may choose to bypass the Central Authority and instead proceed directly to the tribunal de grande instance. This option was confirmed by the Cour de Cassation (the highest judicial court in France) in 1995.15 The petitioning parent' s attorney will use an emergency procedure known as référé. The opposing party is informed of it. Application for a référé is made by an assignation en référé, which is similar to an emergency writ of summons. Special sessions for the hearing of référé applications are usually held once a week (sometimes more often in the larger cities), or in cases of extreme urgency, immediately at a fixed time, in court or at the residence of the judge, even on public holidays.
Domestic Laws Regarding Child Abduction and Parental Visitation
A. Child Abduction
The Penal Code contains several provisions covering parental child abduction and withholding access rights from a person entitled to such rights. The offenses are listed in the Code under the heading “Encroachment on the exercise of parental authority. ” They are as follows:
• Withholding access rights from a person entitled to these rights is punishable by a 1 year prison term and a i15,000 fine (approximately US$ 16,500);
• Failure by the person with whom the child habitually resides to give notice within one month of any change in the child's residence to whoever has access rights to the child resulting from a judicial decision or an agreement approved by a court is punishable by a 6 month prison term and a i7,500 fine (approximately US$ 8,250);
• Abduction of a minor by a legitimate, natural or adoptive parent either from a person with parental authority or from a person he was placed with, or from a person with whom he habitually resides, is punishable by a 1 year prison term and a i15,000 fine (approximately US$ 16,500);
• Abduction of a minor without fraud or violence by a person other than the persons mentioned in the previous article from a person with parental authority, from a person he was placed with, or from a person he habitually resides with, is punishable by a 5 year prison term and a i75,000 fine (approximately US$ 83,000).
The penalties imposed by articles 227-5 and 227-7 will be increased to a 3 year prison term and a i 45,000 fine when either one of the following occurs :(1) the child is retained for more than 5 days and information with regard to the child's whereabouts is withheld; (2) the child is taken out of the territory of the French Republic;20 (3) the guilty party has lost parental authority.
Criminal prosecution may result in a formal judicial investigation conducted by an investigating judge. This judge has broader investigatory powers than a civil judge. Prosecution may also be used as a negotiating tool with the abductor, and in some cases has a dissuasive effect. However, in other cases, prosecution may impede any chance of reconciliation, as it tends to exacerbate the situation. Therefore, recourse to criminal prosecution is decided on a case-by-case basis.
B. Parental Visitation
Parental rights and duties referred to as authorité parentale are vested jointly in parents at the birth of the child. Divorce or separation of the parents do not in principle affect the relationship of rights and duties of former spouses in relation to their children. It is customary for joint parental authority to continue while one parent is awarded custody, unless this is deemed to be contrary to the child's interests.
Parents should continue to decide together which school the child will attend, matters relating to health, and relationships with third parties. Therefore, a non-custodial parent will retain access rights and the right to influence major decisions affecting the child.
In case of disagreement, the juge aux affaires familiales has full authority to take any measure guaranteeing the continuity and effectiveness of the relationship between a child and each of his parents.
He may, for example, order an entry on the parents' passports stating that the child cannot be taken out of the French territory without the authorization of both parents. To determine how parental authority will be exercised, the judge may take into account any agreement between the spouses, reports prepared by social workers, and wishes of the child (provided that the child has a sufficient degree of understanding). Parents are free to seek the modification of an order if a change in circumstance has occurred.
Article 16 of the Convention prohibits a court from making substantive custody decisions during the proceedings. Therefore, only provisional measures in the best interests of the child will be taken by the judge. When return of the child to the country of habitual residence is denied, parental authority will be decided according to the rules stated above.