Maître Bénédicte RAJOT - Avocat au barreau de Lyon
Droit International et de l'Union européenne
International child abduction
On 22 November 2019, the Special Assizes of Paris hosted the trial of a woman who appeared for numerous facts, including that of child abduction. In August 2014, she had left France to join the lands of jihads, in the company of her two daughters, without the consent of their father. The latter, a civil party in the trial, filed a complaint for non-representation of children.
In 2008, a statistical analysis of the civil aspects of international child abduction showed that 69% of abductions were carried out by their mothers. Although their motives are usually to protect their children, the act of abduction is real, even if it is difficult for the offending parent to perceive.
In the situation of international child abduction by one of the parents, the victim of the non-return or removal of his or her child has a procedural instrument enabling him or her to establish parental rights. The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction is a procedural instrument for restoring the status quo ante of the situation, whereas criminal proceedings will only be used in cases where the child cannot be located. This Convention aims at mutual assistance between the contracting States, through mutual trust in their cooperation. To date, 99 States have acceded to the Convention, which entered into force in France on 1 December 1983.
Articles 7 and 8 of the Hague Convention of 25 October 1980 set out the powers and competences of the central authorities of the States. These are essentially to locate the child, seek an amicable solution, take any necessary action and enforce decisions.
Moving the child abroad is not in itself unlawful, but it is unlawful if it is in breach of the custody rights of the other parent. This violation of custody rights can be detected through two cumulative criteria, set out in Article 3 of the Hague Convention. The first criterion presupposes the violation of the custody rights of the parent who is the victim of the abduction, and the second criterion is conditional on the effectiveness of the custody rights which must have existed on the day the child was abducted, or which should have existed if the abduction had not occurred.
A judgment of the Court of Justice of the European Union of 5 October 2010 (C-400/10) recalls that custody rights will be assessed under the applicable national law, whether it concerns the domestic law of the State in question or its private international law. The judge seized of an application for return must therefore begin by investigating whether the parent who has been abducted has custody rights, as recalled in two judgments of the First Civil Chamber of the Court of Cassation of 29 February and 14 March 2012 (no. 11-15.613; no. 11-17.011).
The Convention lends itself to apply to children who have their habitual residence in one of the Contracting States. Article 4 of the Hague Convention of 25 October 1980 states that the Convention ceases to apply once the child has reached the age of 16. Moreover, abduction cannot be contested for children in utero, the habitual residence of a child in a Member State requires a physical presence in the State, as the Court of Justice of the European Union underlined in its decision of 8 June 2017 (C-111/17).
As regards the French State, the parents have joint parental authority as of right, regardless of the child's nationality. One of the parents cannot therefore move abroad with the child without the consent of the other parent.
With regard to European provisions, with a view to strengthening international provisions, the Council of Europe intends, in particular, to "combat the increase in international child abductions", and also to "avoid the legal consolidation of situations which were initially unlawful", by working towards the rapidity of measures taken in the context of these abduction cases, as confirmed by the decision of the European Court of Human Rights of 6 December 2007 (no 39388/05).
As regards the European Union, the Brussels II bis Regulation provides real measures to deepen the provisions of the 1980 Convention. Council Regulation 2019/1111 of 25 June 2019 on jurisdiction and the recognition and enforcement of judgments in international child abduction particularly reinforces at regional level the immediate return of the child (Art. 22 to 29).
In particular, Article 24 of the Charter of Fundamental Rights of the European Union, which ensures that the interests of the child are not seriously prejudiced by allowing him or her to return to his or her habitual residence as soon as possible.
The Court of Justice of the European Union is committed to verifying its conformity with international provisions, while ensuring that the requirements prescribed in its procedure are met as best as possible.
For a French citizen, a parent who is the victim of child abduction, there are two ways to implement the Hague Convention of 25 October 1980. According to Article 29, the first means is to refer the matter to the Office of European Union Law, Private International Law and Mutual Assistance in Civil Matters at the Ministry of Justice in Paris. In this case, the public prosecutor for minors will refer the matter to the family court. It will be up to the lawyer to refer the matter to the family court. In the second case, it can be done by direct referral to the competent judge in the State of refuge.
The application to obtain the return of the child, in application of the 1980 Convention, is made, investigated and judged in summary proceedings. The aim is not to obtain a decision on the merits of parental responsibility, but only to re-establish the situation that existed at the time of the abduction.
The objective of the Hague Convention, in Article 1, is "to secure the prompt return of children wrongfully removed to or retained in any Contracting State." It goes on to explain that this objective is "to secure in other Contracting States the effective enforcement of rights of custody and access existing in a Contracting State." It can be deduced from this that the Convention seeks precisely to maintain the harmonious development of the child in his or her environment, and that in the event of abduction, the only way to re-establish this harmony is to return the child to the place where he or she was before the abduction.
However, the First Civil Chamber of the Court of Cassation, on 12 June 2020 (19-24.108), specified that, in the specific case of an infant, their environment being essentially family, it is not wise to rely on the notion of "habitual residence." In order to assess the unlawfulness of the child's removal or non-return, the child's very young age justifies taking into consideration his or her social and family environment.