In the event of the dissolution of a couple with a foreign element, the risk of severing parent-child ties is increased, with one parent sometimes expressing a desire to return to live with the children in his or her country of origin.
In order to maintain these links, in 2002, the legislator included two rules in the Civil Code. First, Article 373-2, Paragraph 2 sets out a duty to maintain contact between the child and his or her parent despite separation. Secondly, Paragraph 3 of the same article requires that any change of residence of a parent, "as soon as it modifies the conditions for the exercise of parental authority", must be the subject of prior and timely information to the other parent.
This system was then reinforced by Article 373-2-6 of the Civil Code, on the occasion of the law of July 9th, 2010 relating to violence specifically against women, violence within couples and the impact of domestic violence on children. This article allows the judge, in order to "guarantee the continuity and effectiveness of the child's relationship with each of the parents", to prohibit the departure from French territory of a minor without the authorization of both parents. The prohibition is then entered in the wanted persons files and the Schengen Information System (SIS), and the parent's authorisation must be given by declaration before a judicial police officer, mentioning the period and destination of the exit (Article 1180-4 of the Code of Civil Procedure).
Invited to refer a question to the Court of Justice of the European Union for a preliminary ruling in order to verify the conformity of this provision with European Union law, the Court of Cassation ruled, by a judgment delivered by its First Civil Chamber on March 8th, 2017, that the prohibition of a minor from leaving the territory without the consent of the parents, provided for in Article 373-2-6, Paragraph 3 of the Civil Code, does not affect the principle of free movement of persons in that it is necessary for the protection of the rights and freedoms of others and is proportional to the objectives pursued. The domestic court does not therefore have to refer the matter to the Court of Justice of the European Union, as long as there is no "reasonable doubt as to the interpretation of European Union law".
If the question of the validity of this provision in relation to European Union law could arise, it is because it is a measure derogating from the traditional rules of parental authority. Indeed, when both parents have parental authority, the principle is that of co-direction. Consequently, Article 372-2 of the Civil Code deems each parent to act with the consent of the other with regard to third parties when it is a customary act of parental authority. The definition given by the case law of customary acts is negative: it refers to any act, except one that breaks with the practice previously established by the parents and involves the child's future. Consequently, since leaving the territory is an ordinary act and not a serious act, as confirmed by the reading of Article 371-6 of the Civil Code, the consent of both parents is in principle not required.
Thus, to be valid, this provision must not only be necessary, but also proportional to the aims pursued.
With regard to its necessity, the Court of Cassation states that the prohibition of the child's departure from the territory without the agreement of both parents "aims to preserve the links between the child and both parents and to prevent unlawful removal, in accordance with the objectives pursued by Council Regulation (EC) No 2201/2003 of November 27th, 2003 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility and the Hague Convention of October 25th, 1980 on the civil aspects of international child abduction".
With regard to its proportionality to the aims pursued, the Court of Cassation states that the prohibition is not absolute since it requires only the agreement of both parents, and that the measure can always be reviewed by the judge, which appears to be an effective guarantee. Indeed, at any time, one of the parents may appeal to the Family Court for the release of the prohibition. He or she will then have to demonstrate that any risk of wrongful removal of the children or non-return to the other parent has been eliminated.