In the case of a conflictual separation or divorce, two parents of different nationalities may have difficulty reaching an agreement regarding custody of their child. Sometimes, one of them may abduct the child by taking him or her abroad. This offense can be fought with the help of an international lawyer.
What to do in case of an international child abduction ?
After a divorce, it may happen that one of the parents moves their child abroad in violation of the conditions set for the custody.
If the other parent is of French nationality, they are entitled to file a complaint against the abducting parent for non-representation of the child. This offence is punished by one year’s imprisonment, but article 227-9 of the Penal Code provides for two aggravating circumstances:
1 – If the minor child is detained for more than five days without those entitled to claim representation knowing his or her whereabouts ;
2 – If the minor child is unduly detained outside the territory of the Republic.
What is international abduction?
According to the French Ministry of Justice, “the removal of a child by one of its parents abroad is considered illegal when it is committed in violation of the conditions of exercise of custody – or, in France, of parental authority – recognized to the other parent, or to any institution or body, by the law of the State in which the child was habitually resident before its removal”.
The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction defines wrongful removal as the […] “violation of rights of custody attributed to a person, institution or other body, either jointly or alone, by the law of the State in which the child was habitually resident immediately before the removal or retention, and that these rights were actually exercised, either jointly or alone, at the time of removal or retention, or would have been so exercised but for the removal or retention”.
Basically, removal or retention of a child outside their country of habitual residence is an abduction.
In France, the choice of residence of a minor child results from the exercise of parental authority. This is defined by article 371-1 of the Civil Code as “a set of rights and duties whose purpose is the interest of the child”. It belongs jointly to both parents, as long as they have not been deprived of it. When the child’s residence is established in France, any change in the country of residence must be subject to the agreement of the other parent or to the authorization of the Judge for Family Affairs (JAF).
What legal remedies are available ?
France has ratified numerous multilateral agreements to protect minors who may be subject to international abduction, including the Hague Conventions of October 25, 1980 and May 29, 1993 on child protection.
According to Article 8 of the Hague Convention, a parent who alleges that his or her child has been removed in violation of his or her rights of custody may refer the matter to the Central Authority of the child’s habitual residence or that of any other Contracting State for assistance in returning the child.
In France, the Central Authority in charge of the implementation of conventions on the international movement of children is the Bureau du droit de l’union, du droit international privé et de l’entraide civile. It must be seized by the other parent before referring the matter to the public prosecutor who has territorial jurisdiction.
Parental abduction is punishable by law. Article 227-5 of the French Penal Code states that “the act of improperly refusing to represent a minor child to the person who has the right to claim him or her is punishable by one year’s imprisonment and a fine of 15,000 euros”.
If the State to which the child has been removed has not signed a bilateral or multilateral convention with France, the Central Authority will not be competent. It will be possible to use family mediation tools instead, such as CMFI (Cellule de médiation familiale internationale), whose goal is to solve conflicts. Its intervention is not a substitute for legal proceedings, but rather a complementary measure.