Even where arrangements for exercising parental authority were set at separation, one parent sometimes fails to respect the other's rights. Such conduct runs against the child's best interests.
Faced with this, the parent who is a victim of the abduction often feels powerless and unsure how to respond. DAF Darmon Avocats Famille listens and helps you put the right solutions in place quickly.
A brief reminder on parental rights
Separation does not change how parental authority is exercised: as a rule, parents continue to exercise it jointly.
As a reminder, parental authority is defined in Article 371-1 of the Code civil as "a set of rights and duties aimed at the child's best interests". It is exercised until the child comes of age or is legally emancipated. Those holding parental authority are generally the people whose legal parentage over the child has been established.
Among the duties parental authority confers on parents is the right to determine the child's residence. So when parents decide to separate, they must agree on where the children will live.
Whatever the parents agree on the child's residence and on visitation and accommodation rights must be strictly respected. One parent's rights must never be disregarded by the other.
What is parental abduction? Definition
Child abduction is defined in Article 227-7 of the French Criminal Code as "the act, by any ascendant, of removing a minor child from those who exercise parental authority, or to whom the child has been entrusted, or where the child has their habitual residence" (unofficial translation).
In other words, it covers the case of a parent who takes the child away from the home where they usually live, without the other parent's agreement.
The offence of parental abduction applies regardless of:
- whether the abducted child consented to being taken;
- whether custody arrangements had been set by a court decision.
Real-world examples
A parent is generally considered to have abducted their child where:
- a parent fails to hand over their minor child to the person entitled to have them, whether that person holds the child's habitual residence or simply has visitation and accommodation rights: strictly speaking, this is the related offence of failure to hand over a child (Article 227-5 of the Criminal Code), with the same penalties;
- a parent takes the minor child with no right to do so.
Related offence: the parent the child lives with moves house without notifying their new address within one month to the other parent, whose visitation or accommodation rights were set by a judgment, a court-approved agreement or a divorce-by-mutual-consent agreement (Article 227-6 of the Criminal Code, punishable by 6 months' imprisonment and a €7,500 fine).
Note: a parent cannot be prevented from exercising visitation and accommodation rights on the grounds that the other parent exercises parental authority alone.
How should you respond to a child abduction?
It is never easy to respond on learning that your child is the victim of parental abduction. You need to act quickly and effectively. If you are facing such a situation, several options may be available depending on your circumstances and how serious the situation is.
You will not act the same way depending on whether you are in contact with the abducting parent.
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At your consultation, a lawyer of DAF Darmon Avocats Famille reviews your case on the merits and on the terms of engagement.
What penalties does the offending parent face?
Child abduction is a criminal offence.
Article 227-7 of the Criminal Code punishes a parent who abducts a minor child from those exercising parental authority, or to whom the child was entrusted, or where the child has their habitual residence, with one year's imprisonment and a €15,000 fine.
1 year
This penalty can nonetheless rise to 3 years' imprisonment and a €45,000 fine where there is an aggravating circumstance.
- 1 year's imprisonment
- €15,000 fine
The aggravating circumstances are listed in Articles 227-9 and 227-10 of the Criminal Code:
The aggravating circumstances
It is an aggravating circumstance to:
- keep the minor child for more than five days without those entitled to have the child returned to them knowing where the child is;
- wrongfully keep the minor child outside French territory;
- have already been stripped of parental authority or been the subject of a decision withdrawing it.
Withdrawal of parental authority can also be sought before the civil court against the abducting parent, even without a criminal conviction, where the parent's conduct clearly endangers the child (Article 378-1 of the Code civil).
Child abducted? Call on our lawyers
A parent who abducts their minor child puts them in serious danger. This is a situation that must be taken seriously.
To recover your child's residence or your visitation and accommodation rights as quickly as possible, do not hesitate to contact us so we can guide you promptly on the steps to take.
We can support you in filing a criminal complaint, if that is your wish, so you can recover your rights over the child. If you prefer not to file a complaint, we can also support you through mediation, or if you are considering an application to the family court judge. In every case, the guiding principle is protecting your child, whose best interests come first.
You can reach us on +33 1 56 68 11 45 for a phone consultation and an initial review, aimed at reassuring you and giving you the key solutions for protecting yourself and your children.
Two situations when facing parental abduction
In that case, the first step may be to try to reach an agreement with the other parent. As with many issues, an amicable solution remains the one everyone prefers and that creates the least conflict.
When should you file a criminal complaint for parental abduction?
Unfortunately, mediation is not always possible. In that case, you will need to act in the child's best interests and to ensure their protection. Several options are then available:
- You can apply directly to the family court judge (as a rule, the judge for the place where the child usually lives). This can lead to arrangements being set for the child's residence or a financial penalty being ordered against the abducting parent, to discourage them from keeping the child any longer.
- You can also file a criminal complaint against the other parent, in person at a police station or gendarmerie.
- If your child has been taken abroad, a return request can be made under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (child under 16, country party to the Convention), supplemented within the European Union by the Brussels II ter Regulation. The request is submitted to the French Central Authority (Ministry of Justice). With other countries, a bilateral convention or diplomatic channels may help.
In this case, the first thing to do is contact the police or gendarmerie. You need to act quickly to help ensure the missing child's protection.
Again, other options are available:
- You can decide to file a criminal complaint against the parent keeping the child.
- You can also seek the cooperation of the foreign courts, under the same conditions described above.
Parental abduction: frequently asked questions
It is the act, by a parent or grandparent, of taking a minor child away from those who hold parental authority, to whom the child has been entrusted, or where the child has their habitual residence (Article 227-7 of the Criminal Code). The offence stands even if the child consents and even where no court decision has set the custody arrangements. A parent the child lives with who fails, within one month of moving, to notify their new address to the other parent holding visitation or accommodation rights under a judgment, a court-approved agreement or a divorce-by-mutual-consent agreement also commits an offence (Article 227-6 of the Criminal Code).
One year's imprisonment and a €15,000 fine, increased to 3 years and €45,000 where there are aggravating circumstances: the child is kept for more than five days without those entitled to have the child returned knowing where the child is, the child is wrongfully kept outside France, or the offending parent has already been stripped of parental authority (Articles 227-9 and 227-10 of the Criminal Code). In serious cases, withdrawal of parental authority can also be sought before the civil court (Article 378-1 of the Code civil).
If the child is under 16 and has been taken to a State party to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, a return request can be submitted to the French Central Authority (Ministry of Justice). Within the European Union, the Brussels II ter Regulation supplements the Convention and speeds up the procedure. With other countries, you need to rely on a bilateral convention, where one exists, or on the French Ministry for Europe and Foreign Affairs. You should also file a criminal complaint and urgently apply to the family court judge.
Even without a court decision, a child has a habitual residence. A parent who removes the child from it for a lasting period and cuts off contact may commit the offence of child abduction (Article 227-7 of the Criminal Code). You can immediately apply to the family court judge, if needed on an emergency basis, to have the child's residence set and to request a ban on the child leaving French territory without both parents' consent. Once that decision is made, the parent the child lives with must notify you of any change of address within one month, failing which they face six months' imprisonment and a €7,500 fine (Article 227-6 of the Criminal Code).
Yes. Article 227-7 of the Criminal Code covers any ascendant: a grandparent who takes the child from their parents faces one year's imprisonment and a €15,000 fine. Anyone else, including a family member who is not an ascendant (uncle, aunt, sibling, step-parent), faces five years' imprisonment and a €75,000 fine where they take the child without fraud or violence (Article 227-8); where fraud or violence is used, the more serious offence of kidnapping applies (Article 224-1 of the Criminal Code).
"He has great human qualities, but above all he is a very intelligent, highly knowledgeable advisor."
"Throughout my divorce (1 year) he was available around the clock, evenings, weekends, even during holidays."
"You were there to smooth things over just as much as when we needed to be defended."
"Excellent support despite the distance (Australia/Paris) and the language barrier."
"Maître Darmon is caring and attentive throughout the whole procedure."
"He has great human qualities, but above all he is a very intelligent, highly knowledgeable advisor."
"Throughout my divorce (1 year) he was available around the clock, evenings, weekends, even during holidays."
"You were there to smooth things over just as much as when we needed to be defended."
"Excellent support despite the distance (Australia/Paris) and the language barrier."
"Maître Darmon is caring and attentive throughout the whole procedure."
