In France, the principle in question is that of parental authority – autorité parentale – defined by Article 371-1 of the French Civil Code: “Parental authority is a set of rights and duties designed to protect the interests of the child. Parental authority is vested in the parents until the child reaches the age of majority or is emancipated, in order to protect the child’s safety, health, privacy and morality, to ensure the child’s education and to enable the child’s development, with due respect for the child’s person. Parental authority is exercised without physical or psychological violence. Parents involve their children in decisions that concern them, in accordance with their age and degree of maturity”.

The indication of the name of the mother on the birth certificate establishes the filial link between the mother and the child, and grants the mother parental authority over the child. The mother can also acknowledge parentage of the child before the child’s birth.

If the mother is married, the presumption of law is that their child is that of the father who, by law, has parental authority.

The father could acknowledge parentage of the child before their birth. In this case, the father will automatically have parental authority over the child upon the child’s birth. The father could also acknowledge parentage after the child’s birth. In this case, by law, the father would have parental authority if acknowledgment of parentage is made within the year following the birth.

Failing this, the father would have to request a joint statement with the mother, and, if the mother is not in agreement, the father would need to make a request for joint parental authority to the family court.

Note, also, that paternity is established as a result of court proceedings filed by the child (ie, the mother files to establish paternity in the child’s name while the child is still a minor), the civil court decides whether or not to grant parental authority to the father.

In domestic cases, a non-genetic parent can only be granted parental authority through a court decision known as “delegation of parental authority” (délégation d’autorité parentale), or after an adoption.

However, if parentage is only established with one parent, then the parent who is not a genetic parent could voluntarily recognise the child by indicating that they are the parent of the child. There will be no verification of biological or genetic connection in this case.

No relevance is attached to marriage at the point of conception or birth of a child under French law. However, there is one exception: if the mother is married, the presumption of law is that the child is that of the father who, by law, is granted parental authority.

Once the filial link between a parent and child is established in a same sex-couple, the French Civil Code establishes a principle of equality. Marriage or adoptive filiation entails the same effects, rights and obligations as those recognised by law, whether the spouses or parents are of different sexes or the same sex (French Civil Code, Article 6-1).

However, same-sex couples – particularly male couples – do not have the same route to parenthood as heterosexual couples, and therefore parental authority is not established under the same conditions.

One consequence of adoption is the benefit of parental authority for the adoptive parents.

In France, where one parent wishes to change a child’s place of residence permanently from the family home to a new country, the consent of those exercising parental authority – ie, in principle, both parents – is required.

If the required consent cannot be obtained, the intervention of a family judge is generally requested by the parent who wishes to relocate to the new country, who will ask to modify the terms and conditions of parental authority. This demand is governed by Articles 373-2-6 et seq. of the French Civil Code.

If one of the parents moves within France, the extent to which the rights of the other parent will be affected must be looked at. If these rights are significantly affected, a decision needs to be made as to whether the reasons for the move are justified, and whether a move is right for the child. As in the case for relocations abroad, the judge will assess the various elements presented in concrete terms, and a decision will be based on a sovereign appreciation of these elements.

Under French law, if parents have joint custody, meaning parental authority (which is the principle), they can travel abroad with their child without one another’s formal consent. However, if one parent wants to relocate permanently with the child to another jurisdiction, the consent of the other parent is mandatory. If consent is not given, as explained in 3.2 Steps Taken to Return Abducted Children, the parent who wishes to move will need the authorisation of the court to relocate with the child. A relocation without such consent is a child abduction.

If a child has been removed from France without the relevant consent, the other parent could act as follows.

First, contact the French Ministry of Justice (Department of Mutual Assistance, Private International and European Law), which is the central authority in matters of child abduction cases, to request international civil cooperation. Depending on the country to which the child has been removed, different remedies will exist.

• If the Country has signed the 25 October 1980 Hague Convention, the French Ministry of Justice will explain to the parent what needs to be done to ask for the immediate return of the child to France, depending on the practice of the country to which the child has been removed (whether they need to file directly to the country, need a lawyer, what kind of documents must be provided, etc).
• If the Country has not signed the 25 October 1980 Hague Convention but another mutual agreement on child abduction with France, the same applies as for the Hague Convention, and the convention also exists with Algeria, Egypt and Djibouti.
• If the Country has not signed the Hague Convention or any other mutual agreement with France on child abduction, the French Ministry of Justice will recommend that the parent seek legal advice directly on the country to which the child has been removed as well as from a French lawyer specialised in such cases. The Ministry of Foreign Affairs in France will assist the parent in collecting information on the child’s situation through diplomatic representation.

In all cases, the Ministry of Justice will propose international mediation if possible.

Second, file a criminal complaint for child abduction. This is not recommended where international civil cooperation is possible, particularly when the 25 October 1980 Hague Convention applies to the case. This type of criminal complaint could in fact complicate the immediate return of the child.

France signed the 1980 Hague Convention on 1 December 1983.

If a child is unlawfully taken to France, there is no free legal advice available to the parent of the abducted child. However, the French Ministry of Justice will explain the proceedings applicable in France to the central authority of the country of habitual residence of the child in question. The central authority does not have the right to advise the parent on any strategy and should respect the parent’s capacity to act, according to the Hague Convention.

The French courts generally rigorously apply the principles of the Hague Convention, both on the principle of immediate return and on the strict interpretation of exceptions to return. The Cour de Cassation (the Supreme court for all civil and criminal cases in France) frequently reacquaints with its principles any courts that might be tempted to revise those principles more flexibly. Applicable proceedings – from the petition to court to a first decision – usually take more than six weeks, contrary to information provided by Article 11 of the Hague Convention.

If the child is abducted from France into a country not bound by the 25 October 1980 Hague Convention, the child’s parent should seek legal advice in France and/or directly in the country of abduction to obtain a decision on custody. As mentioned in 3.2 Steps Taken to Return Abducted Children, the parent could also seek the assistance of the French Ministry of Justice. However, usually, even if the country of abduction has signed a bilateral agreement with France on judicial cooperation in matters of custody, there are no specific proceedings for requesting the return of a child that are at least comparable to those provided for by the Convention. There will generally only be an exchange of information between the central authorities appointed in the bilateral agreements and support in respect of the country of abduction in terms of diplomatic representation via the Ministry of Foreign Affairs.

The costs of a child-abduction case depend on many criteria (stance of the second parent, arguments raised in defence, appeal on the decision – in France, appeal is an absolute right). Appointing a lawyer is not compulsory, but is strongly recommended. The French courts usually require the parent that has removed the child to pay part of the costs of the proceedings (including lawyers’ fees) under Article 26 of the Convention. The parent will, however, be able to ask for legal aid for proceedings in France in the event of litigation. The parent should match the conditions provided by French law on legal aid.

The average timescale for applications under the Hague Convention, from the initial petition to court until a final decision of the court of appeal (without including a appeal before the Supreme Court) is usually six months, although it depends on the local court.

France signed the 1980 Hague Convention on 1 December 1983.

.