Parental Authority and Child Protection

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Parental Authority and Child Protection

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Themes

Parental authority, child protection, penal code, child abduction, non-representation of a child, deprivation of care, International Convention on the Rights of the Child, child's best interest, juvenile court judge, social services, educational assistance, family risks, Court of Cassation, sovereign discretion, child's residence, visitation rights, accommodation rights, Article 227-7 Penal Code, Article 371-1 Civil Code, Article 3 §1 International Convention on the Rights of the Child, child development, parental aptitude, minor's rights, public health code, medical acts, informed consent, family law, child welfare, parental responsibility, child safety, health, morality, education, autonomy, jurisprudence, court decisions, legal framework, child rights convention, best interest principle, family judge, juvenile judge

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Abstract

The Penal Code protects parental authority by sanctioning attacks on it and ensuring the child's protection. The Court of Cassation plays a crucial role in upholding the child's best interest in decisions related to parental authority.

Parental conflict as a legal risk factor for the child
1. The legal conceptualization of parental conflict
2. The legal qualifications of endangerment
The effectiveness and limitations of protective measures against parental conflict
1. The relative effectiveness of existing devices
2. Towards a strengthening of the legal framework for protection

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Extract

[...] This conflict, which should remain conjugal, often spills over into the parental sphere, reaching the child itself. Far from being a simple disagreement between adults, the prolonged parental conflict becomes, in some cases, a serious infringement on the best interests of the minor. Official figures attest to the scope of the phenomenon. According to the Ministry of Justice (2023 report), more than 183,000 family cases concerned the exercise of parental authority or the residence of children after separation, while 124,000 minors were reported to be in a situation of danger. [...]

[...] Thus, in a case Strand Lobben v. Norway On 10 September 2019, the ECHR was able to condemn Norway due to the shortcomings in the decision-making process that led to the mother being deprived of parental authority and the adoption of her child being authorized; this process not having been conducted in a way that all the applicants' opinions and interests were duly taken into account, so that the procedure in question was not surrounded by guarantees proportionate to the gravity of the interference and the interests at stake89. [...]

[...] The father and mother have the right and duty to direct the education of their child39. This prerogative is solemnly affirmed by the Universal Declaration of Human Rights of 10 December 1948: "parents have, by priority, the right to choose the kind of education to be given to their children" (Article 26.3). It is also enshrined in the jurisprudence of the European Court of Human Rights, which places on States the obligation to respect a certain educational pluralism allowing for the accommodation of parents' religious and philosophical convictions, based on a combination of Article 2 of Protocol which enshrines the right to education and the right of parents to respect for their religious and philosophical convictions, and Article 9 of the Convention enshrining freedom of thought and conscience. [...]

[...] In addition to the family judge, the juvenile judge is an indispensable actor in the protection of the child in the event of parental conflict. §2 - The role of the juvenile judge and educational assistance measures Created in 1935, educational assistance was reformed by the ordinance of December In its original version, it aims to be respectful of parental function: it only intervenes in the event of a real danger to the child and only imposes limits on parental powers that are strictly necessary to protect the child. [...]

[...] §1 - Desired reforms of the internal law (training, coordination, reporting) The structural weaknesses of the system inevitably call for a legislative and institutional overhaul. The transition from formal protection to effective protection requires a overhaul of the reporting system as well as an increased professionalization of the actors. This process was initiated by the law of February on the protection of childhood98. This law aims to better manage the policy of child protection through the creation of a departmental committee for the protection of childhood, on an experimental basis for five years, for voluntary departments (article or the creation of a public interest group for child protection, adoption, and access to personal origins. [...]

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