Court/Judicial body: Court of Cassation
Date: June 14, 2005 CRC
Provisions: Article 3: Best interests of the child
Other international provisions:European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 8: Child’s right to respect for his/her private and family life.Hague Convention on the Civil Aspects of International Child Abduction, Article 13(b): Protection from grave risk to child.
Domestic provisions:Constitution of France ( Article 55: legally ratified international treaties are directly applicable in the French legal system)
Background: Ms. X, a French citizen, and Mr. Y, an American citizen, were married and had a daughter in the United States. Several years later, Ms. X. took this daughter to France for a vacation, but notified Mr. Y. upon arrival that she intended to stay indefinitely in France with their child. Mr. Y demanded the immediate return of his daughter to the United States, and Ms. X. fought this request. Her claims were dismissed by the Aix-en Provence Court of Appeal, and she subsequently appealed to the Court of Cassation against the order claiming that the decision violated the Convention on the Rights of the Child.
Issue and resolution: International child abduction. The Court found that although the best interests of the child provision of the CRC was directly applicable, Ms. X’s appeal should be dismissed as the best interests of her daughter had already been considered in ordering her return to the United States.
Court reasoning: In reaching its decision, the Court reviewed applicable international law, including provisions from the Hague Convention on Civil Aspects of International Child Abduction, the European Convention on Human Rights, and the Convention on the Rights of the Child. Although the Court concluded that these provisions could be directly invoked before French courts, it found no evidence that returning the child to the United States would place her in danger or run contrary to her best interests.
Excerpt citing CRC and other relevant human rights as translated by the Oxford Reports on International Law in Domestic Courts “Whereas Mrs X… is contesting the appealed judgment which ordered the immediate return of the child to the United States, alleging in her notice of appeal a breach of: 1) Article 13(b) of the Hague Convention of 25 October 1980, in that the grave risk referred to in this text might ensue merely from the change to the child’s current living conditions; 2) Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, to the effect that a child has the right to respect for his or her private and family life, so that the judge should have taken into consideration the separation from the environment in which she is integrated in France; 3) Article 3(1) of the New York Convention of 26 January 1990 on the Rights of the Child, to the effect that the best interests of the child shall be a primary consideration; in this instance such consideration requires that account be taken of the child’s separation from the new environment in which she is integrated; 4) the general principles of international law which recognise this requirement; 5) the constitutional principles in light of which international conventions must be construed, requiring that the child’s best interest shall be a primary consideration in any decision taken concerning him or her; and 6) without responding to the submissions pointing out the grave risk ensuing from the father’s plan to establish himself in Santo Domingo; Whereas, however, it is apparent from Article 13(b) of the Hague Convention of 25 October 1980 that an objection cannot be made to the immediate return of the child unless there exists a grave risk of danger or a risk of creating an intolerable situation; and that by virtue of Article 3(1) of the New York Convention on the Rights of the Child, a provision which is directly applicable before French courts, these circumstances must be assessed taking account of the primacy of the best interest of the child…”
Notes:Along with another case heard in the Cour de Cassation around the same time (Bourdier v Rainville, épse Hérisset, Cassation, No 02-20 613 (Court of Cassation, First civil section), 18 May 2005), this case marked a move away from prior French case law and began to recognize certain provisions of the CRC as directly enforceable in the courtroom.
CRIN comments: CRIN believes that this decision is consistent with the CRC. As recognized by the Court with respect to Article 3 and the consideration of the best interests of the child, provisions of the CRC should be directly applicable in all proceedings affecting children. While the Court did not rule that every right under the Convention is enforceable in French courts, it is hoped that this case represents a step in that direction.
Citation: 04-16.942, Arrêt n°1094, Cour de cassation (First civil section), 14 June 2005
Link to Full Judgment (in French):http://www.courdecassation.fr/jurisprudence_2/premiere_chambre_civile_568/arret_no_623.html