Court of Cassation, parental liability, cohabitation, Civil Code, Article 1242, parental authority, minor children, civil liability, jurisprudence
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Abstract
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Abstract
The Court of Cassation ruled on the scope of cohabitation in determining parental liability under Article 1242, paragraph 4 of the Civil Code, reversing its previous jurisprudence.
Extract
[...] The consequence of this was that if the minor child left the family home to enter under the authority of another sphere, such as a boarding school for example, then the cohabitation ceased. This meant that the parents could more easily disengage from their responsibility. Furthermore, this was in line with the fact that the responsibility of the parents on their child was based on the foundation of fault. If they were held responsible, it was because they had committed a fault in their duty of supervision or education. Therefore, if their child was far from them, they could not supervise them and they could not then commit a fault. [...]
[...] The Court then states that this 'text does not consider the situation of the child living with his two parents ». The jurisprudence had to interpret the text in order to be able to answer when conflicts included divorced couples with children. However, the answer was not positive for single parents. B. The previous jurisprudence criticized for its negative consequences and confusions The Court of Cassation then decides to recall its previous jurisprudence. It had tried to adapt the notion of cohabitation to the reality of divorced families. [...]
[...] Here, the Court operates a reversal of jurisprudence (it notes the importance of the ruling by publishing it in the Bulletin). It therefore argues that the notion of cohabitation is consubstantial because it is derived from parental authority. With this new definition, it empties the notion of cohabitation of its substance. From now on, cohabitation must be understood as a dependent notion, and not autonomous, of the exercise of parental authority (it is an extension of this). It's as if it didn't exist. [...]
[...] The appellate judges agree with him. The mother, the child, and the civil parties file an appeal against this decision. The mother claims that by not recognizing both parents as civilly liable for their child, the appeals court would have violated the the right to lead a normal family life and the requirement to protect the best interests of the child according to articles 10 and 11 of the Preamble to the 1946 Constitution, the respect for the private life of article 2 of the Declaration of the Rights of Man and of the Citizen of 1789, the principle of equality before the law consecrated by article 6 of the Declaration of the Rights of Man and of the Citizen and article 18§1 of the Convention on the Rights of the Child. [...]
[...] However, this theory was not satisfactory to achieve the indemnary objective of civil liability. In fact, the victim could not always turn to the parents of the minor child to obtain compensation. And this, even though they are in most cases more solvent than their child. This began to change with a 1997 decision. The decision of the 2 The civil chamber of the Court of Cassation of February (Bertrand judgment) eliminates one of the grounds for exemption from liability in favor of parents. [...]
