FRANCE: National Laws

Summary: General overview of France's national legal provisions on children's rights, including guidance on how to conduct further research.

Français

National laws on children's rights

Status of the CRC in national law
Under article 55 of the French Constitution 1958, ratified treaties prevail over acts of parliament. In principle, this means that where national legislation is in conflict with the CRC, the CRC will take precedence. The Court of Cassation (Cour de Cassation) has considered sections of the Convention to be directly enforceable in domestic courts, as has the Council of State (Conseil d'Etat), but the Convention does not as of yet have direct effect in all judicial and administrative proceedings.

Constitution: The French Constitution itself does not include rights provisions per se, but the preamble expresses a "[solemn] attachment to the Rights of Man and the principles of national sovereignty as defined by the Declaration of 1789, confirmed and implemented by the Preamble to the Constitution of 1946". The preamble to the 1946 Constitution contains two provisions that make specific reference to children:

• Section 11: requires the State to guarantee protection of health, material security, rest and leisure to children, mothers and elderly workers
• Section 13: guarantees equal access for children and adults to vocational training and culture

Legislation: French law is a strict hierarchy in which the Constitution is foremost, then properly ratified treaties, organisational laws, ordinary laws and ordinances, respectively. Much of national law is arranged in Codes. Legislation of particular relevance to children's rights includes, but is by no means limited to:

Legal codes:

• The Criminal Code
• The Code of Criminal Procedure
• The Civil Code
• The Education Code
• The Employment Code
• The Departmental Health Code
• The Code on the Entry and Residence of Foreigners and the Right of Asylum
• The Social Security Code

Other legislation:

• Law No. 2007 of 5 March 2007 (on the reform of child protection)
• Law No. 2006-399 of 4 April 2006 (strengthening prohibitions on and punishment of domestic violence and violence against children and raising the minimum legal age for girls to marry to 18 years)
• Law No. 2006-72 of 23 June 2006 (on succession and donation, creating equality regardless of the child's birth status)
• Law No. 2004-439 of 26 May 2004 (on reform of divorce law with the objective to simplify and accelerate the procedures of separation, in particular to reduce the length and exposure of children to these procedures)
• Law No. 2005-744 of 4 July 2005 (on the reform of adoption)
• Ordinance No. 2005-759 of 4 July 2005 (on the reform of filiation, abolishing the concepts of legitimate and natural births)

Legal Research:

The French National Assembly (Assemblée Nationale) maintains and official website in French with a number of legal resources (http://www.assemblee-nationale.fr/). The Constitution is available in English through the website of the National Assembly (http://www.assemblee-nationale.fr/english/8ab.asp#VII). Legifrance maintains a database of legal codes and other legislation in French (http://www.legifrance.gouv.fr/) as does www.droit.org. In addition, the GlobaLex initiative at New York University has published a guide to legal research in France (http://www.nyulawglobal.org/Globalex/France1.htm) and the World Legal Information Institute provides selected links to French legal resources in a variety of languages (http://www.worldlii.org/fr/) as does the U.S. Law Library of Congress (http://loc.gov/law/help/guide/nations/france.php).

Case Law
CRC Jurisprudence:
In the case of X v. Y and another, the French Court of Cassation delivered a ruling on international child abduction and the direct enforceability of the best interests of the child provision of the CRC.

Case Law Research:
The Council of State (Conseil d'État) maintains a database of its case law (http://www.conseil-etat.fr/fr/base-de-jurisprudence/) and the Court of Cassation (Cour de Cassation) maintains a similar database of its own case law (http://www.courdecassation.fr/jurisprudence_2/), both in French. The Constitutional Council (Conseil Constitutionnel) also publishes it decisions (http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/documentation/commentaires-des-decisions/2011/commentaires-des-decisions-2011.95702.html) in French. The World Legal Information Institute provides a selection of links to websites maintaining case law databases (http://www.worldlii.org/catalog/50117.html).

Compliance with the CRC
France has implemented a significant proportion of the CRC into national law, and the Court of Cassation (Cour de Cassation) and the Council of State (Conseil d'État) are in agreement that certain aspects of the Convention are directly enforceable in national courts. The Committee on the Rights of the Child, however, has recommended that this position be built upon so that all the provisions of the Convention "can be invoked as a legal basis by individuals and applied by judges at all levels of administrative and judicial proceedings".

In depth analysis:
Perhaps the area of French law that has caused the most consternation in the Concluding Observations of the Committee on the Rights of the Child has been the administration of juvenile justice. The Committee has expressed concern that legislation in the field tends to favour repressive rather than educational measures, that children can be tried as adults in certain circumstances, that there is no minimum age of criminal responsibility and that children can be detained in "children's wards" in places of detention intended for adults. Committee recommendations have focussed on treating detention as a matter of last resort, ensuring that children under the age of 18 are not treated as adults in the judicial system, and that the State set an age of criminal responsibility not below 13 years.

Violence in which children are victims is a connected area in which the Committee has raised serious concerns. The Committee has highlighted allegations of ill-treatment of children in police custody and in places of detention, as well as the high number of suicides of young people in detention centres. The Committee has recommended that these incidents be properly investigated, and that where sufficient evidence is found, prosecutions be brought and offenders properly punished. While the State party reports that corporal punishment is prohibited by the Penal Code, the Committee has expressed concern that the practice remains common, and has recommended that the State enact explicit prohibitions on the corporal punishment of children.

The ban on the wearing of "signs or dress through which pupils ostensibly indicate which religion they profess in public, primary and secondary schools" has also given rise to concerns from the Committee, which recommended that the State ensure that no girl is denied her right to education through such measures. The Committee noted that a public culture of secularism need not require forbidding of the wearing of common religious symbols.

Current legal reform projects
Please contact CRIN if you aware of any current legal reform projects.