Requesting the withdrawal of parental authority
ONPE has estimated the number of minors covered by a child protection measure as of December 31st, 2016, in parallel with the implementation of Decree No. 2011-222, set in place February 28th, 2011. This estimate is based on the cross-referencing of data from the Directorate of Research, Studies, Evaluation and Statistics (DREES) and the Directorate of Judicial Protection of Youth (DPJJ), with the number of minors in attendance Educational Code (Article 375 of the Civil Code) derived from the charts of children's courts. According to this study, the number of minors in the charge of child protection services is estimated at 295,357 throughout France, at 20.1% of the total population under 18 years of age.
According to article 371-1 of the Civil Code, "Parental authority is a set of rights and duties whose purpose is to serve the best interests of the child.
This responsibility belongs to the parents until the child becomes of age or is granted emancipation from a court of law; this responsibility includes the protection and security of the child, the prioritization of their health, moral guidance, education and development, and general respect for them as a person.
Parents should associate the child with the decisions that concern him, according to their age and degree of maturity ".
One must not confuse the loss and the withdrawal of the parental authority, because they do not have the same bases: the loss of the parental authority is the consequence of an accident of the life like a death, a disappearance, absence or incapacity (article 373 of the Civil Code), while the withdrawal of parental authority is a deprivation that results from a judicial decision. Parental authority can be withdrawn from the parent who represents a danger for his child or who is neglectful. The withdrawal can be total or partial and to obtain it, it is necessary to seize the civil judge, with the assistance of a lawyer. It should be noted that this measure is only intended to protect the child and not to punish the parent.
When we say that the parent is a danger to his child, this danger must threaten the health, safety or morality of the minor. This can be done through mistreatment, habitual and excessive consumption of alcohol or drugs, known misconduct or criminal behavior, particularly when the child witnesses stressful situtations or violence, whether physical or psychological, particularly when this is directed at the child. This includes domestic abuse and neglectful behavior (psychological maltreatment, moral pressures, material and emotional abandonment of the child, etc...).
Parental authority can also be withdrawn entirely from parents in the case of disinterest for their child. This decision occurs when a judicial placement order has been made with respect to the child, and unfortunately, his parents have voluntarily abstained for at least two years from exercising the rights they had retained. The simplest example is when the parents do not visit their child after they have been temporarily placed elsewhere.
With regards to the withdrawal procedure, according to article 373-2-8 of the Civil Code, the request may be made to the IMT of the place of residence of the parent(s), by different actors: the public prosecutor, a family member, the guardian of the child or the departmental service of child welfare (ASE).
During the proceedings, it is possible for the judge to take provisional measures concerning the exercise of parental authority. He can also order a social inquiry. The various parties to the case may be heard if the case so requires, and this also applies to the child, who will also be assisted by a lawyer.
At the end of the proceedings, the judge can decide on the total (all attributes) or partial (on some attributes only) withdrawal of parental authority.
In case of partial withdrawal, the judgment may maintain with respect to the parents:
- The rights and duties of custody, supervision and education,
- Certain prerogatives such as the right to consent to adoption and emancipation.
Attention, it is important to know that, by default, the withdrawal extends to all the children already born at the time of the judgment regardless of whether they are born of parents married or not, or adopted.
If the remaining parent is dead or has lost parental authority, the judge may decide to entrust the child provisionally to a third party (family member or not) who will organize the tutorship or to the departmental service of social assistance.
In the context of a total withdrawal, the child who has no one and who is thus entrusted to the ESA acquires the status of ward of the State. It is adoptable unless the guardian considers that this measure is not appropriate.
In the context of a partial withdrawal, the powers are divided between the parents and the ESA. Parents generally maintain relationships with the child.
Finally, to request the restitution of the parental authority, totally or partially, the parents must prove their new circumstances to be in the interest of the child. However, it is necessary to wait one year after the judgment to be able to make this request. In addition, the child must not already be placed for adoption.