Depending on their family situations, children may be subject to various issues that fall under international family law (foreign nationality, habitual residence on the territory of a foreign country, movement across a border without parental permission, etc.). In such cases, we need to refer to the rules of private international law that apply to these issues (which may be national, European or international).
The conflict of laws rules that apply to parentage are found in Articles 311-14 et seq. of the French Civil Code.
The principle set forth in Article 311-14 of the French Civil Code is that the law that applies to parentage is the national law of the mother on the day the child is born. However, one must also take into account possession of status if the child or one of the child’s parents habitually resides in France, or a possible recognition.
Furthermore, in order to promote the validity of recognition of a child, Article 311-17 of the French Civil Code provides that a recognition is valid as long as it respects either the national law of the child or that of the person recognizing the child.
Disputes related to parental authority in an international context may turn out to be extremely complicated, particularly if contradictory decisions are made by courts of different countries. To prevent this type of situation, international texts have been adopted between Member States of the European Union (except for Denmark) as part of the Brussels II bis Regulation. With respect to other countries, the provisions of the Hague Convention of 19 October 1996 must be applied if the child habitually resides in a signatory State. These two texts give precedence to the jurisdiction of authorities in the place where the child habitually resides.
If no international text applies, each country determines the competence of its courts to apply its own law.
For children who habitually reside in France, applicable law is determined by the Hague Convention of 1996. Therefore, French law, which is the law of the place where they habitually reside, will determine who holds parental authority and how it is exercised.
For issues related to child support, it is necessary to refer to European Regulation No. 4/2009 on maintenance obligations to determine the competent court and applicable law.
In the absence of an applicable international text, each country determines the jurisdiction of its own courts and laws by applying the national laws that apply to such matters.
Specific rules apply to adopting a child who does not reside in France through a French adoption procedure, which is referred to as an international adoption.
It should be determined whether the adopted child is from a country that has signed the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption.
If so, the adoptive parents must follow the steps of the specific cooperation mechanism put in place by the Convention. This mechanism aims to ensure the protection of the child and recognition of the adoption decision.
If the child does not habitually reside in a Member State of the Hague Convention, there is a distinction between whether the adoption is decreed in France or abroad.
If the adoption is decreed in France, the provisions of Article 370-3 of the French Civil Code will determine the law that applies to the adoption, by specifying that the effects of the adoption will be governed by French law (Article 370-4). However, if the national law of the child’s country prohibits the adoption, the adoption may not take place in France.
If the adoption is decreed abroad, it will be recognized in France and integrated into a full or simple adoption depending on whether it completely and irrevocably breaks preexisting parent-child ties. However, if it does not break this tie, it may be converted into a full adoption by French courts, provided that the child’s legal representatives have consented to it.
Surrogacy is a method of assisted procreation that is not recognized by French law. In surrogacy, the surrogate mother agrees, by way of a contract, to bear a child and to hand the child over at birth to another couple, referred to as the intended parents, who for various reasons (mainly biological and medical) cannot have a child on their own.
When performed abroad in a legal system that allows it, the parent-child link established between the child and the intended parents can, under certain conditions, take effect in France, either based on a court judgment or a foreign birth certificate, for both the biological parent and the intended parent, and for either a heterosexual or a same-sex couple.
A child growing up in an international family situation may be subjected to an international child abduction.
This happens when one of the parents takes the child out of the country of habitual residence and into another country without the permission of the other parent. (This is called unlawful removal.) It also happens when, at the end of initially authorized international travel, a parent refuses to allow the child to return to the country of habitual residence. (This is called unlawful retention.)
On an international level, the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction is intended to combat this type of situation. This Convention sets up a system, in the interests of the child, to provide for the immediate return of the child to his or her country of habitual residence.
Within the European Union, the provisions of the Hague Convention have been reinforced by Regulation No. 2201/2003, referred to as “Brussels II bis” and will be further strengthened by Regulation No. 2019/1111, referred to as “Brussels II ter,” which will go into effect on August 1, 2022.
Different types of unions exist, each of which leads to different rights and duties for the individuals in the couple. In an international context, we need to make sure that the union will be recognized both in France and abroad.
How a couple separates depends on the type of union they chose. For married couples, we need to pay attention to the jurisdiction in which the divorce will be filed.
To protect a vulnerable adult, it may be necessary to resolve issues of private international law, such as jurisdiction, so that a protective order may be issued and recognized.
Estates are transferred after a death or on the basis of an estate plan. In an international context, this area of law has special characteristics due to the diversity of laws and taxes that may apply.
In an international context, the question of what consequences a foreign judgment will have in France often arises.