THE RESPECTIVE POWERS OF THE CHILDREN'S JUDGE AND THE FAMILY COURT JUDGE TO PROTECT THE CHILDREN OF DIVORCED COUPLES

Jurisdiction of the JE and JAF

Statement of facts:

A family affairs judge makes a ruling :

-divorce of parents :

-and establishes the child's residence at the father's home,

-granting his mother visiting and accommodation rights.

A children's judge :

-The court then orders an open educational assistance measure for the child,

-that he entrusts to his father

-and grants his mother mediated access until the next decision of the family court.

The article 375-3 of the Civil Code provides that if the protection of the child so requires, the children's judge may decide to :

-entrust it to the other parent,

-a family member or trusted third party,

-to a service or establishment approved to receive minors

-or to a service

-or to an ordinary or specialised health or educational establishment.

However, where an application for divorce has been made or a divorce decree has been issued between the father and mother, or where an application for a decision on the residence and visiting rights of a child has been made or a decision has been issued between the father and mother, these measures may only be taken if a new fact of such a nature as to endanger the minor has come to light subsequent to the decision ruling on the arrangements for the exercise of parental authority or entrusting the child to a third party.

They may not prevent the family court from deciding :

-by application of Article 373-3,

-to whom the child should be entrusted.

Case law (Jurisdiction of the JE and JAF) :

The Court of Cassation had ruled that, where a fact of such a nature as to entail a danger for the child was revealed or occurred after the decision of the family court judge having fixed the child's habitual residence with one of the parents and organised the other's visiting and accommodation rights, the children's judge, who had jurisdiction in all matters relating to educational assistance, could, in this respect, modify the arrangements for exercising these rights, even though no placement order had been made.

However, in urgent cases, the family affairs judge may act as an interim relief judge:

-by the parents or the public prosecutor

-on the basis of article 373-2-8 of the Civil Code,

with a view to changing the arrangements for exercising parental authority.

By conferring a concurrent power on the children's judge, when the latter's intervention, which is provisional, is in principle limited to cases where the modification of the terms and conditions for exercising the child's rights is necessary.parental authority is insufficient to put an end to a situation of danger, the solution adopted until now has encouraged the risk of the judge being used by the parties.

Developments in case law (Jurisdiction of the JE and JAF) :

1.

In addition, the Cour de cassation has changed its case law. On the basis of thearticle 375-7 of the Civil CodeThe Court's jurisdiction to determine the minor's residence and rights of access and accommodation depends on the existence of a placement order made under article 375-3 of the same code.

2.

Thus, it was held, firstly, that the jurisdiction of the children's judge is limited, in civil matters, to educational assistance measures and that the family court alone has jurisdiction to rule on the terms and conditions for exercising parental authority and the child's residence, so that if educational assistance is dismissed, the children's judge can only return the child to the parent with whom the residence was fixed by the court. family court judge (. Cass. 1^re civ., 14 nov. 2007, no. 06-18104), secondly, that the family court has jurisdiction to determine, in the interests of the child, the terms of the relationship between the child and a third party, whether a parent or not, unless the children's court has ordered a placement on the basis of article 375-3 of the Civil Code (. Cass. 1^re civ., 9 June 2010, no. 09-13390).

3.

In the light of all these factors, it seems necessary to revisit previous case law and rule that, where a family court has ruled on the child's residence and set the other parent's visiting and accommodation rights, the children's judge, hearing the case after this decision, may only modify the visiting and accommodation rights decided by the family court if there is a decision to place the child within the meaning of article 375-3This may not lead the children's judge to place the child with a parent who already has a decision from the family affairs judge establishing the child's residence at his or her home, and if a new fact likely to cause danger to the minor has come to light subsequent to the family affairs judge's decision.

Solution chosen by the expert (Jurisdiction of the JE and JAF) :

The Court of Appeal rightly held:

-. on the one hand, that, since the family court has fixed the minor's habitual residence at her father's home at the time of the divorce judgment, the children's court has no power to entrust the child to him, article 375-3 of the Civil CodeIt only applies to the "other parent";

-secondly, that in the absence of a placement measure in accordance with the legal provisions, the children's judge does not have the power to rule on the visiting and accommodation rights of the parent with whom the child does not habitually reside.

From this she deduced that only the family court could change the mother's right to visit and accommodate the child.

Cass. 1st civ., 20 Oct. 2021, no. 19-26152