Abstract
This chapter outlines the adoption process in France in accordance with the template of legal functions (see, Chap. 3). It is primarily concerned to identify and examine those distinctive features of this archetypal civil law jurisdiction that distinguish the legal aspects of the process from its common law counterpart. The chapter begins by considering the social and legal context of adoption, the emerging trends in types of adoption and their more prominent characteristics. It notes current government policy and identifies the relevant legislation before examining in some detail the regulatory framework, the main agencies and processes and the role of the parties as they relate to the adoption process. It explores the policy governing the interface between child care and adoption as government spending on family support has continued to increase and birth parents have access to a wide range of multi-disciplinary services intended to prevent children coming into care. It examines the reliance upon intercountry adoption. The chapter concludes with a summary and assessment of the more distinctive and significant characteristics of the contemporary adoption process in France up to and including 2014.
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Notes
- 1.
See, the Constitution of October 4th 1958 and also the preamble of the Constitution of October 27th 1946.
- 2.
August 26th 1789.
- 3.
Formulated by Napoleon to give effect to the principles of the French Revolution, the Code was promulgated in 1804.
- 4.
See, further, Fulchiron, H. 2006. Egalite, verite, stabilite: The new French filiation law after the ordonnance of 4th July 2005. In The international survey of family law, 203–216. Bristol: Jordan Publishing.
- 5.
See, Ancel, L’Adoption dans les legislations modernes (1958) where it is pointed out that between 1804 and 1939 a provision in the Civil Code provided that adoption did not remove a person from his family of origin; the function of adoption was to add to the adopted person’s rights, not take away (paras 62-3).
- 6.
See, Observatoire national de l’enfance en danger – Situation des pupilles de l’Etat au 31/12/2011, Statistical document issued by the Ministère des affaires sociales et de la santé.
- 7.
Statistics from Justice department, at: www.justice.gouv.fr
- 8.
See, INED statistics (Institut National des Etudes Démographiques).
- 9.
See, Initial report to CRC, 1993, as cited by Selwyn, J., and Sturgess, W., op cit, at p. 37.
- 10.
Note that the marital status of parents no longer determines the legal status of their children: whether married or not their child will have exactly the same legal status. See, Ordonnance n° 2005-759 of 4 July 2005, as since ratified by the Statute n° 2009-61 of 16 January 2009.
- 11.
Article 341 of the Civil Code, introduced in 1993, precludes a child born to X from establishing any legal tie to the mother, even if her identity should be discovered. The law has been relaxed somewhat by Statute n° 2009-61 of 16 January 2009. See, also, Art. 325 of the Civil Code. The legal claim is available to the child where he/she has no legal filiation at all and no de facto parent-child ties. But in practice this almost never happens for X children since almost all are adopted within their first 10 months. Therefore the claim is barred due to the establishment of the adoptive filiation link.
- 12.
Statute of 27 June 1904 and Decret-Loi of 2 September 1941. Also, see, Donovan, K. 2002. Real mothers for abandoned children. Law & Society Review 1, 36(2): 347–78.
- 13.
See, Article L. 224-4, point (1), of the Social Action and Families Code.
- 14.
[2003] 1 FCR 621. Also, see, Kearns v. France Application No. 35991/04, ECHR, 10.01.08.
- 15.
See, for example, Lefaucheur, N. 2000. Etude – enfants nes sons X. Paris: CNRS-IRESCO.
- 16.
See article L. 2212-1 of the Code de la santé publique. Note also the ruling in Cour du cassation 2001-446 DC which rejected a challenge that such a raising of the legal threshold permitted “eugenic practices” by allowing more time for identifying foetal anomalies and so facilitating the selection of children to be born.
- 17.
In 1955 there were 1,170,143 abortions; 550,127 in 1985; 343,024 in 1995; 341,588 in 2001; and 190,363 in 2011 (see, Institut National des Etudes Demographiques, ‘INED’).
- 18.
In 1955 there were 14,000 abortions performed on minors compared with 40,000 in 2003, falling to I1,1612 in 2010 (see, Direction de la recherché, des études, de l’évaluation et des statistiques, ‘DREES’)
- 19.
In 2011, there were 2345 wards of the state.
- 20.
Note to author (December 20, 2013).
- 21.
See, further, Fournier, V., D. Berthiau, J. d’Haussy, and P. Bataille. 2013. Access to assisted reproductive technologies in France: The emergence of the patients’ voice’. Medicine Health Care Philosophy 16(1): 55–68.
- 22.
Under article 16.5 of the Civil Code, such contracts are null and void. The Cour de cassation in 1991 invalidated a decision of lower jurisdictions giving effect to surrogacy by creating a filiation link between the child and the wife of the biological father after the completion of such a contract. See, also, Cour de cassation 6 April 2011 n° 09-66.486 and 10-19.053 and 09-17.730 More recently, see Cour de cassation 13 September 2013 n° 12-30.138 and n° 12-18.315, in which a surrogacy arrangement (legally executed in India) was held to be invalid in France and resulted in the paternity status of the intended father being declared void. See, further, at: www.Legifrance.gouv.fr
Law reform is currently anticipated on this matter. The author is grateful to Laurence Francoz-Terminal for this information.
- 23.
See, decision of the Cour de cassation (Cass. Civ. 1e, 17 December 2008) which annulled the transcript of the birth certificate of two children because their legal parents had enlisted the services of a surrogate mother in California. The Court so ruled even though the children had obtained their birth certificates in California and were U.S citizens. The French high court confirmed this annulment, holding that French citizens cannot go abroad to circumvent French surrogacy laws.
- 24.
Compared with: the Netherlands, 0.24 %; Austria, 0.5 %; Portugal, 0.6 %; and Luxembourg, 0.7 %.
- 25.
See, Selwyn, J., and W. Sturgess. 2000. International overview of adoption: Policy and practice. Bristol: University of Bristol, at p. 37
- 26.
See, Initial report to CRC, 1993.
- 27.
See, Chou, S., and K. Browne. 2008. The relationship between institutional care and the international adoption of children in Europe. Adoption & Fostering 32(1), at p. 47.
- 28.
See, Initial report to CRC, 1993.
- 29.
See, Chou, S., and Browne, K., op cit at p. 44.
- 30.
Article L 225-1 of the Code de l’action sociale et des familles.
- 31.
See, further, ONED at www.oned.gouv.fr-contact@oned.gouvr.fr
It reports that in 2010 children were adopted as opposed to 714 in 2009. These children were very young (77 % less than one year old) and were adopted through para 1 of article L.224-4 of the CASF (73 %) and by a department registered family (84 %$).
- 32.
See, INED adoption survey.
- 33.
Article 345 of the French Civil Code.
- 34.
These problems were a cause of concern to the Committee on the Rights of the Child. In its Concluding Observations of the Committee on the Rights of the Child, France, U.N. Doc. CRC/C/15/Add.240 (2004), the Committee expressed regret at the reluctance of France to collect disaggregated data (para. 12).
- 35.
- 36.
- 37.
See, further, at: www.oned.gouv.fr
- 38.
It is the number of court decisions that are counted rather than the number of children involved, no distinction is made between intra- and extra-family adoption and adoptions in foreign countries where adoption legislation is equivalent to plenary adoption are not counted.
- 39.
However, children born in France and directly entrusted to an accredited adoption association by their parents, are not officially registered anywhere.
- 40.
However, their database records the annual number of visas issued for the purpose of plenary adoption, by country of origin, which always exceeds the actual number of formally completed adoptions: many applications for plenary orders result in simple adoptions; foreign residents in France may request a visa to allow a child from their family, already adopted in their country of origin, to join them in France; and the year of the court decision may be later than that when the visa was issued.
- 41.
In 2012 there were: 3287 plenary adoption orders; 6661 simple adoption orders (not all concerning persons under the age of 18); and 1,569 intercountry adoption.
- 42.
See, Selwyn, J., and Sturgess, W., op cit, at pp. 37–38.
- 43.
Ibid, citing Initial report to CRC, 1993.
- 44.
- 45.
In 1998, a total of 1,343 children were adopted from Vietnam, falling to 469 in 2010 (source, Selman, Adoption Advocate No. 44: Global Trends in Intercountry Adoption: 2001–2010).
- 46.
See, Service de l’Adoption Internationale.
- 47.
See, Chou, S., and K. Browne. 2008. The relationship between institutional care and the international adoption of children in Europe. Adoption & Fostering 3(1): 40–48, at pp. 45–46.
- 48.
See, Concluding Observations of the Committee on the Rights of the Child, France, U.N. Doc. CRC/C/15/Add.240 (2004), at para. 33.
- 49.
See, Art. 343 of Civil Code. The law is to be amended.
- 50.
Application No. 43546/02, 25.01.08.
- 51.
See, further, Robcis, C. 2013. The law of kinship: Anthropology, psychoanalysis and the family in France, Ithaca: Cornell University Press.
- 52.
See, further, Halifax, J., ‘Why are there so many international adoptions in France?’, at: http://www.uea.ac.uk/swp/icar2/pdf’s/Halifax99.pdf
- 53.
The exercise by any woman of this right, which is enshrined in Article 326 of the Civil Code and which the legislature has to date shown no intention of reconsidering, is governed by the provisions of Article L. 222-6 of the Social Action and Families Code, as amended by the Act of 22 January 2002.
- 54.
See, UN Committee on the Rights of the Child (51st session, 2009) when following its consideration of the third and fourth combined periodic report of France, the Committee expressed concern that a mother giving her child up for adoption, if she wished, could conceal her identity and oppose the right of the child to know his or her origins, depriving the child of a part of his or her rights. The Committee reiterated its previous recommendation that France take all appropriate measures to fully enforce the child’s right to know his or her biological parents and siblings, as enshrined in Article 7 of the Convention.
- 55.
See, Selwyn, J., and W. Sturgess. 2000. International overview of adoption: Policy and practice. Bristol: University of Bristol, at p. 37.
- 56.
Odièvre v. France [2003] 1 FCR 621.
- 57.
Application No. 43546/02, 22 January 2008. In the court at first instance, the plaintiff’s adoption was denied because of an “absence of a paternal presence or involvement and because of the ambiguity of the petitioner’s companion with respect to the adoption procedure.”
- 58.
Application No. 43546/02, 25.01.08.
- 59.
The author is grateful to Laurence Francoz-Terminal for her advice on developments in this area of law.
- 60.
See, further, Dekeuwer-Defossez, F. Adoption and secrecy of origins (in French law), at: http://ciec1.org/Etudes/ColloqueCIEC/CIEColloqueDefossezAngl.pdf
- 61.
See, further, Committee on rights of the child, concluding remarks of its fifty-first session, at: http://reliefweb.int/report/mauritania/committee-rights-child-concludes-fifty-first-session
- 62.
Note to author (20.12.2013).
- 63.
See, further, at: www.agence-adoption.fr/home/
- 64.
An alternative view of the impact of this law has been expressed by Terre des Hommes which asserts that:
Since the passing of a law on 4 July 2005, the involvement of the French Central Authority in “strictly private” adoptions with non-contracting states has noticeably diminished. The situation is therefore highly alarming.
See, Lammerant, I., and M. Hofsetter (eds.). 2007. Adoption: At what cost? Lausanne: Terre des Hommes, , at p. 12.
- 65.
Signed on January 26th, 1990.
- 66.
The Optional Protocols on the sale of children, child prostitution and child pornography and on the involvement of children in armed conflict, as well as the ratification of ILO Convention No. 182 concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour.
- 67.
Signed on April 5th, 1995 and ratified on June 30th, 1998.
- 68.
See, further, at: www.adoption.gouv.fr
- 69.
See, Concluding Observations of the Committee on the Rights of the Child, France, op cit at para. 21.
- 70.
See, Lammerant, I., and M. Hofsetter (eds.). 2007. Adoption: At what cost? Lausanne: Terre des Hommes, at p. 28.
- 71.
See, Decree n° 2006-981 of 1st August 2006 and n° 2006-1272 of 17 October 2006. The legal provisions have been integrated to art. R225-1 to R225-11 of the Social Welfare and Family Code.
- 72.
See art. L225-2 of the Social Welfare and Family Code.
- 73.
See R225-7 of the Social Welfare and Family Code.
- 74.
Loi no 2002-93 du 22 janvier 2002 relative à l’accès aux origines des personnes adoptées et pupilles de l’Etat.
- 75.
See, Lammerant, I., and M. Hofsetter (eds.). 2007. Adoption: At what cost? Lausanne: Terre des Hommes, at pp. 12–13.
- 76.
Ibid, at p. 26.
- 77.
See, Statute n° 2009-526 of 12 May 2009.
- 78.
Only those orphans without any extended family members able to undertake guardianship responsibility and therefore entrusted to Child Welfare Services.
- 79.
See art. L224-4 of Social Welfare and Family Code.
- 80.
Article 345 of the French Civil Code. This is a mandatory requirement that the District court (Tribunal de Grande Instance) have to check before ordering a plenary adoption of the child. It is not required for a simple adoption.
- 81.
Ibid.
- 82.
Article 348-5 of the French Civil Code.
- 83.
See, Art. 345 of the Civil Code.
- 84.
See Art.360 in fine of the Civil Code : L’adoption simple est permise quel que soit l’âge de l’adopté.
(…) Si l’adopté est âgé de plus de treize ans, il doit consentir personnellement à l’adoption.
- 85.
See new Art. 348-3 as amended by Statute n° 2010-1609 of 22 December 2010.
- 86.
Ibid.
- 87.
Ibid.
- 88.
Application No. 35991/04, ECHR, 10.01.08.
- 89.
Article L. 224-6, paragraph 2, of the Social Welfare and Families Code.
- 90.
Ibid.
- 91.
Article L. 224-8 of the Social Welfare and Families Code.
- 92.
Article 343 of the Civil Code.
- 93.
See new art. R225-3 of the Social Welfare and Family Code as amended by the Decree n° 2006-981 of 1st August 2006.
- 94.
Art. R225-3 of the Social Welfare and Family Code provides that this questionnaire must be given to the prospective adopter/s at the first meeting.
- 95.
Article 343 of the French Civil Code.
- 96.
Articles 344 of the French Civil Code.
- 97.
Articles 343 and 343-1 of the French Civil Code.
- 98.
Articles 346 of the French Civil Code.
- 99.
Articles 343-1, 343-2 and 343 of the French Civil Code.
- 100.
See, the ruling of the ECtHR in E.B. v. France, Application No. 43546/02, 22 January 2008.
- 101.
Article 343-2 of the French Civil Code.
- 102.
Article 344 of the French Civil Code.
- 103.
Article 344 of the French Civil Code.
- 104.
Articles 343-1 and 343-2 of the French Civil Code.
- 105.
Art. 435-1 bis of the Civil code as amended by the Statute n° 2012-404 of 17 May 2013 added a new category viz: where the child has been adopted as a single person exclusively by the said spouse.
- 106.
Article 345-1 of the French Civil Code.
- 107.
See, Article R225-4 of the Social Welfare and Family Code.
- 108.
See Article R225-7 of the Social Welfare and Family Code. Author acknowledges the advice of Laurence Francoz-Terminal on this matter.
- 109.
Articles 348-3 of the French Civil Code.
- 110.
Article 352 of the French Civil Code.
- 111.
Article 347 of the French Civil Code.
- 112.
However, note the view of Laurence Francoz-Terminal:
The 2 months period under challenge in K. v. France was not the 2 months period regarding consent to adoption according 348-3 of the Civil Code. The 2 months period under challenge was the delay that precludes an anonymous mother from claiming the child back in order to establish the filiation of the child in accordance with art. L.224-6 of the Social Welfare and Families Code. Indeed, the consent to adoption is never required from a woman that has given birth anonymously under the ‘accouchement sous X scheme. From a legal point of view she’s a woman who never gave birth, and so she’s a third party in relation to the child. Since she’s not the mother her consent is not needed to free the child for adoption (note to author).
- 113.
Statute n° 2005-744 of 4th July 2005.
- 114.
Articles 348-3 of the French Civil Code.
- 115.
Articles 348, 348-1 and 348-2 of the French Civil Code.
- 116.
See, Art 348-3 of the French Civil Code as amended by Statute n° 2010-1609 of 22 December 2010.
- 117.
Articles 345 and 360 of the French Civil Code.
- 118.
Articles 348-3 of the French Civil Code.
- 119.
Articles 348-3 of the French Civil Code. See, also, Kearns v. France, op cit.
- 120.
Article 350 of the French Civil Code.
- 121.
Articles 348-6 of the French Civil Code.
- 122.
Articles 348-5 of the French Civil Code.
- 123.
See, further, Beignier, B. Freedom to Conceive a Child. Dr. fam. 2004, chron, No 3, at p. 4 for an argument that procreation is not merely a right but a freedom.
- 124.
Concluding Observations of the Committee on the Rights of the Child, France, U.N. Doc. CRC/C/15/Add.240 (2004) at para. 5.
- 125.
Article 388-1 of the French Civil Code.
- 126.
The author gratefully acknowledges the advice of Laurence Francoz-Terminal on this matter.
- 127.
Op cit, at ‘Introduction’.
- 128.
Article 345-1 of the French Civil Code.
- 129.
Article 366 of the French Civil Code.
- 130.
Article 368 of the French Civil Code.
- 131.
See, Cour de cassation 20th February 2007 n° 06-15.647 and n° 04-15.676. The two cases concerned same-sex couples but sexual orientation was irrelevant. Adoption was considered as contradicting the best interest of the child since it would thereby deprive the birth mother of parental responsibility for her children (author acknowledges with thanks the advice of Laurence Francoz-Terminal on this matter).
- 132.
Article 359 of the French Civil Code.
- 133.
Article 345 of the French Civil Code.
- 134.
In its 2004 report (Convention on the Rights of the Child Distr. GENERAL CRC/C/15/Add.240 30 June 2004) the Committee notes that the concerns and recommendations (CRC/C/15/Add.20) it made upon consideration of the State party’s initial report (CRC/C/3/Add.15) in respect of the right to know one’s origin (para. 14), remain insufficiently addressed.
- 135.
[2003] 1 FCR 621.
- 136.
Note to author (20.12.2013).
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O’Halloran, K. (2015). France. In: The Politics of Adoption. Ius Gentium: Comparative Perspectives on Law and Justice, vol 41. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-9777-1_13
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