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The following are excerpts, without
footnotes, of an article published in the Judges’ Newsletter on International
Child Protection Vol. XX, Summer – Autumn 2013.
The full article is available on the
website of the Hague Conference on Private International Law.
Concentration of Jurisdiction under
the Hague Convention of 25 October 1980 on the Civil Aspects of International
Child Abduction: France
By Mrs. Isabelle GUYON-RENARD, Auxiliary Judge at the First Civil
Section, Supreme Court, Paris
The Act N° 2002-305 of 4 March 2002 on parental authority organised
the concentration of French family court jurisdiction with respect to decisions
relating to minor children. In doing so, the Act caused actions based on international
instruments relating to the wrongful removal of children to be brought before
specialised Courts at first instance (created by the former Article L. 312-1-1
of the Code of Judicial Organisation (COJ), now Article L. 211-12). This specialisation
of courts, in actions brought under Regulation (EC)
N° 2201/2003 of the Council of 27 November 2003 (“Brussels IIa”) concerning jurisdiction and
the recognition and enforcement of decisions in matrimonial matters and matters
of parental responsibility, repealing Regulation (EC) N° 1347/2000, or under
the Hague Convention of 25 October
1980 on the civil aspects of international child abduction (hereinafter the 1980 Child Abduction Convention),
was organised with a view to the Regulation’s entry into force on 1 March 2005.
This concentration of jurisdiction was not implemented in other
areas of international child protection. It meets the reiterated
recommendations of the Hague Conference’s Special Commissions with respect to
application of that international instrument, repeated in the Guide to Good
Practice for Central Authorities and Contracting States.
As regards France, where there are 100 to 130 new return applications
every year and which brings an average of 70 to 80 actions, the specialisation
of courts has produced several
benefits:
1. It mitigates, to some extent, an
inconsistency in the handling of cases both by the Public Prosecutor’s Offices
having jurisdiction to bring the application and by the courts in charge of
reviewing the merits of the application and appraising the relevance of the exceptions
to return raised by the abducting parent. Seeking a consistent approach,
observant of the aims and issues involved in the 1980 Child Abduction Convention,
enhances compliance with France’s international commitments.
2. It secures expertise in the mechanisms of
the 1980 Child Abduction Convention supplemented by those provided for by
Regulation Brussels IIa, which are complex and demand knowledge and reflexes
which can be developed only through regular involvement in such matters.
3. It also facilitates training for judges and
prosecutors, and exchanges between judges specialising in such cases, including
the network judge in connection with the training and informed actions he or
she may take. The concentration of jurisdiction was implemented smoothly, owing
both to the small number of cases and to the nature of the cooperation
procedure, which confers on the judge no other jurisdiction on the merits.
The specialised Courts at first instance were designated by Decree
N° 2004-211 of 9 March 2004. They are the largest within each appellate circuit
(see appendix schedule VII to
Article D. 211-9 of the COJ). Thus only 37 were selected from among
the 161 Courts at first instance of metropolitan France and the 4 in the French
overseas territories. Decree N° 2004-1158 of 29 October 2004 reforming
procedure in family matters, in force since 1 March 2005, has organized the
relevant procedure. A special section, relating to wrongful international
removal of children, was accordingly included in the Code of Civil Procedure.
This special jurisdiction was conferred on the family court, which typically
decides matters related to parental authority (Art. 1210-4).
Other family courts to which the same or related disputes are referred
are required to decline jurisdiction in its favour, notwithstanding the rules
of lis pendens and related actions (Art. 1210-9, para. 2).
Although the instrument does not so specify, the territorial jurisdiction of
the court will be determined by the location where the child lives.
The application for a child’s return, in accordance with the 1980
Child Abduction Convention, is to be made, tried and determined in summary form
(Art. 1210-5 Code of Civil Procedure). This form of action permits the family
court to issue an expeditious decision that is res judicata on the merits. It is accordingly able to meet
the requirements of the Convention which sets a maximum period of six weeks to
order or deny the child’s return, unless that is impossible owing to special
circumstances.
The latest enacted provisions in France have reinforced the role of
the Public Prosecutor’s Office, which is of particular importance when
jurisdiction is concentrated. Article 425 of the Code of Civil Procedure,
supplemented accordingly by Decree N° 2012-89 of 27 January 2012, creates an
obligation to report to the Public Prosecutor all actions brought on the basis
of the international and EU instruments relating to international wrongful
child removal. That Decree was issued to implement Act N° 2010-1609 of 22
December 2010, which added to Act N° 91-650 of 9 July 1991 an Article 12-1
drafted as follows: “The Public Prosecutor may call directly on the
law-enforcement agencies to obtain execution of rulings issued on the basis of
the international and European instruments relating to the international wrongful
removal of children”. Articles 1210-6 to 1210- 8 of the Code of Civil Procedure
have been created for the purpose. They provide the Public Prosecutor’s Office with
the most suitable means of securing execution of return decisions. It is
provided that unless such rulings are executed voluntarily, the Public
Prosecutor having jurisdiction is the one assigned to the specially-designated Court
at first instance within the jurisdiction of which thechild is located (Art.
1210-6).
