Court of Cassation, filiation law, conflict of laws, international public order, minor child, natural filiation, personal law of mother, Cameroonian law, French law
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Abstract
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Abstract
The Court of Cassation reaffirms the need to set aside foreign law that deprives a minor child of the right to establish natural filiation, recalling the principle of conflict of laws in filiation matters.
Extract
[...] The absence of reference to the public order of proximity The application of foreign law was traditionally excluded by the Court of Cassation, since a ruling of 10 February 1993, when the rights of a 'French child or habitually resident in France' were affected (Civ February 1993, n° 89-21.997). In accordance with the public order of proximity, it is essential that the child has a link with the legal order of the forum. This relaxation by the Court of its "fundamental hostility to the intervention of international public policy against foreign laws prohibiting the establishment of natural filiation" (S. [...]
[...] The principle of conflict of laws in the matter of filiation: the application of the personal law of the mother The High Court, in the 2025 ruling, begins the development of its solution by recalling, in the context of Article 311-14 of the Civil Code, that filiation is in principle governed by the personal law of the mother on the day of the child's birth. This solution, although codified in 1972, has undergone many criticisms. Some argued that this creates an inequality between the father and the mother. [...]
[...] This is a crucial point, since the conflict of laws rule designates the application of the personal law of this person. This question had been settled in 1996, by affirming that the mother is the one indicated in the child's birth certificate (Civ. 1here June 1996, No. 94-12.926, 94-12.927, 94-12.928, 94-12.929). In 2025, the High Court once again simply confirmed this solution: the mother of the child in question is, in this case, the one who initiated the action to establish paternity. [...]
[...] To assess whether a foreign law (in this case, Moroccan law) is contrary to French international public order, the Court of Cassation does not take into account the French nationality of the child or their main residence in France. In essence, it declares that the foreign law that prohibits the establishment of a non-marital filiation must be rejected as contrary to international public order if it has the consequence of depriving a minor child of the right to determine their parentage. This was the case for Moroccan law, which recognized no illegitimate paternal filiation. [...]
[...] This reinforces the preservation of the essential rights of children and the principle of equality. However, this could generate unclear situations, where the filiation is recognized in France but refused in the country of the mother's nationality. The question of reference to proximity may lose some of its relevance according to the project of the Code of Private International Law. According to Article 59, the principle of attachment regarding filiation would be based on the personal law of the child rather than that of the mother. [...]
