The French Court of cassation (Cour de cassation) ruled over the risk of international child abduction under the Brussels II bis Regulation

Cour de cassation, civile, Chambre civile 1, 8 mars 2017, 15-26.664, Publié au bulletin

In the present case, the Court of cassation (Cour de cassation) was requested to examine a measure related to the exercise of parental authority in the light of the objectives fixed in Regulation (EC) No 2201/2003 (’Brussels II bis’ Regulation).

Mr. X and Ms. Y divorced. The Family Court (Juge aux affaires familiales) ordered that the children’s habitual residence should be at the father’s domicile and granted Ms. Y the right to visit. Later, the Court of Appeal of Caen (Cour d’appel de Caen) ruled that Ms. Y could exercise her right to visit only on the French territory and, consequently, prohibited the removal of the children without the previous consent of the two parents on the grounds that there was a risk of international child abduction since Ms. Y was residing in England. Ms. Y lodged an appeal in cassation claiming that the measure was contrary to the principle of free movement of persons and the ‘Brussels II bis’ Regulation.

The Court of cassation dismissed the claim. According to it, the prohibition to remove the children without the previous consent of the two parents, previewed by Article 373-2-7, alinea 3 of the French Civil Code, aimed to preserve the relationships between the children and their parents and to prevent cases of illicit transfer and non-return of children, in conformity with the objectives of the ‘Brussels II bis’ Regulation. Moreover, it found that the measure in question was, on one hand, proportionate since it did not prohibit the removal of the children from France in case the two parents agreed to do so and, on the other hand, limited in time since it could be subject to judicial review at any moment.

Concerning the risk of international child abduction, the Court of cassation held that the Court of Appeal was right to prohibit the removal of the children from France given that Ms. Y had already refused to return them to their father in 2012 and 2014.

The full text is available on EuroCases

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