What is Parental Authority?

Although minors have legal personality, they do not have the capacity to exercise their rights. Thus, they must not only be protected but also represented.

The LAW No. 2002-305 of March 4, 2002, regarding parental authority establishes the framework for the principle of exercising parental authority by parents.

The concept of parental authority is defined in Article 371-1 of the Civil Code:

Parental authority is a set of rights and duties aimed at the child’s best interests.

It belongs to the parents until the child’s majority or emancipation to protect them in their safety, health, and morality, to ensure their education and allow their development, with due respect for their person.

Parental authority is exercised without physical or psychological violence.

Parents involve the child in decisions concerning them, according to their age and degree of maturity.

This definition of parental authority stems from concepts developed in the International Convention on the Rights of the Child (CRC) of November 20, 1989, which refers to the best interests of the child: The responsibility for raising the child and ensuring their development lies primarily with the parents or, where applicable, their legal representatives. They should be guided above all by the best interests of the child » (art. 18).

Thus, parental authority is a set of rights and obligations that parents have towards their minor children, until their majority or emancipation.

Depending on the parents’ marital status, the exercise of parental authority will not be attributed in the same way:

• In the context of marriage, the principle is that both parents jointly exercise their rights and duties towards their child, known as co-parenting.
• In the case of a civil partnership or cohabitation, the mother automatically benefits from the exercise of parental authority as long as her name appears on the child’s birth certificate, since the maternal link is established.

The father, on the other hand, has rights regarding the child only if he has recognized them. If the recognition took place before the age of one year, he jointly exercises parental authority with the mother. If the recognition of the child took place after the age of one year, the father may be granted the exercise of parental authority only under certain conditions and with the judge’s agreement.

Parental authority is therefore defined as a function consisting mainly of three things: protecting the child, maintaining them, and ensuring their education.

1. Parents have the duty to protect the child in their safety, health, and morality:

They must attend to the material and moral needs of the child: feed them; house them; make medical decisions; monitor their relationships, they can therefore prohibit any relationship with a third party; monitor their comings and goings, as minors cannot in principle leave the home without parental consent. Each parent must contribute to the child’s maintenance according to their resources and those of the other parent, and according to the child’s needs, with the maintenance obligation potentially continuing after the child’s majority.

2. Education of the child:

Parents must assume the intellectual, professional, and civic education of their child, to enable their development. It is up to the parents to choose the public or private institution in which their child will attend school or to provide homeschooling under certain conditions. They have the ability to decide on their orientation and educational paths.

Parents who do not provide compulsory education for their child (from 3 to 16 years old) are subject to criminal sanctions (art. 227-17-1 of the Penal Code). Moreover, between 16 and 18 years old, young people who are not in school have the obligation to undergo training (art. L114-1 of the Education Code).

This right to education is protected by numerous European and international instruments, with certain specific provisions that protect the freedom of both the child and the parents in this choice.

Thus, Article 14 of the International Convention on the Rights of the Child (CRC) of November 20, 1989, states that:

1. “States Parties shall respect the right of the child to freedom of thought, conscience and religion.“
2. States Parties shall respect the right and duty of the parents or, where applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.
3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others“.

Article 29 of the CRC states:

“1. States Parties agree that the education of the child shall be directed to:

The development of the child’s personality, talents and mental and physical abilities to their fullest potential;

The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations;

The development of respect for the child’s parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own;

The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin;
The development of respect for the natural environment. (…) “.

Finally, according to Article 30 of the CRC:

“In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practice his or her own religion, or to use his or her own language“.

Also, Article 2 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms states that:

“No person shall be denied the right to education. The State, in the exercise of any functions which it assumes in relation to education and to teaching, shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”

Article 18 of the United Nations International Covenant on Civil and Political Rights of 1966 states in its point 4.:

“The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions“.

Similarly, Article 26.3 of the Universal Declaration of Human Rights of 1948 states that: “Parents have a prior right to choose the kind of education that shall be given to their children.”

Thus, parents are recognized as having the right to educate their children in the values to which they adhere.

Furthermore, we can mention Article 8 (right to respect for private and family life) of the Convention for the Protection of Human Rights and Fundamental Freedoms, which states:

1. “Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.“

To determine if state authorities’ interference in individuals’ private and family life is necessary in a democratic society, the European Court of Human Rights examines whether it was provided for by law, pursued a legitimate aim, and was proportionate to that aim.

The Court has thus repeatedly emphasized that for a parent and child, being together represents a fundamental element of family life (Buscemi v. Italy, September 16, 1999, No. 29569/95), and that ‘the best interests of children must take precedence in all decisions concerning them’ (Vavřička and Others v. Czech Republic, April 8, 2021, No. 47621/13).

Article 7 of the Charter of Fundamental Rights of the European Union also states that ‘Everyone has the right to respect for his or her private and family life, home and communications‘.

3. Management of the child’s property:

Parents with parental authority must also manage their child’s property. They have what is called a right of administration and enjoyment. They must administer the child’s property and may use it, but when an act modifies the child’s assets, systematic authorization from the judge of litigation and protection is required.

How is parental authority exercised?

Within the framework of parental authority granted to both parents, a distinction must be made between usual acts and non-usual acts.

• Usual acts are those that do not commit the child’s future and can be carried out by a single parent, with the other’s consent being presumed. This may include, for example, obtaining a passport, re-enrolling in school, authorizing a school trip, etc. In case of disagreement between parents on a decision to be made in the child’s interest, one of them may approach the family court judge.
• Non-usual acts are ‘important, unusual, serious’ acts, and they require the express agreement of both holders of parental authority.

Courts thus consider that for the most important decisions guiding the child’s life, both parents, even if separated, must be in agreement.

Religious education is one of these important decisions and therefore falls under the joint exercise of parental authority (Court of Appeal of Versailles, February 10, 2011, No. 10/00243). Parents can decide that they will not educate their child in any religion, or choose the faith in which the child will be raised.

What happens in case of parental separation?

The separation of parents has no impact on the rules governing the exercise of parental authority. Each parent must maintain personal relations with the child and respect the child’s ties with the other parent (Article 373-2 of the Civil Code).

Legal intervention in matters of parental authority

Intervention of the family court judge (JAF)

In accordance with Article 373-2-6 of the Civil Code, the judge of the judicial court delegated to family affairs settles questions submitted to them in the context of exercising parental authority, ensuring the safeguarding of the child’s interests.

The judge may also be called upon to rule on the modalities of exercising parental authority and on the contribution to the child’s maintenance and education, as well as on measures relating to the determination of the child’s habitual residence, the granting or not of visitation and accommodation rights and their modalities, or the attribution of child support.

Similarly, regarding religious education, the Paris Court of Appeal considers that: ‘while the choice of religious practice falls under each party’s freedom of conscience, the options taken during the common life should guide the judge in assessing the merits of a request regarding a child’s religious education’ in case of divorce (Paris Court of Appeal, November 14, 2013, No. 13/07758).

Intervention of the juvenile judge

Under Article 375 of the Civil Code:

“If the health, safety or morality of an unemancipated minor are in danger, or if the conditions of their education or physical, emotional, intellectual and social development are seriously compromised, educational assistance measures may be ordered by the court at the request of both parents jointly, or one of them, the person or service to whom the child has been entrusted, the guardian, the minor themselves or the public prosecutor.”

In case of non-compliance with the rules arising from parental authority, parents are subject to sanctions and educational assistance measures that may be pronounced by the juvenile judge (Article 375-1 of the Civil Code). The latter may order the placement of the child in a foster family, for example, or the assistance of parents by a specialized educator.

The parents of a child benefiting from an educational assistance measure continue to exercise all the attributes of parental authority that are not incompatible with this measure.

How does parental authority end?

Parental authority ends:

• Either at the child’s majority;
• Or through the child’s emancipation;
• Or when it is delegated to a third party. Indeed, the exercise of parental authority can be delegated to a third party or a specialized organization (family member, child welfare service…), voluntarily or forcibly if it is essential to the child’s interest;
• Or when parental authority is withdrawn for serious reasons: mistreatment, habitual and excessive consumption of alcoholic beverages or use of narcotics, notorious misconduct or criminal behavior, especially when the child witnesses pressure or violence, physical or psychological, exerted by one of the parents on the other, lack of care or direction that clearly endangers the safety, health or morality of the child, etc. Disinterest or abandonment of the child is established when the parents have not maintained the relationships necessary for the child’s education or development, in the absence of impediment, during the year preceding the request (Article 381-1 of the Civil Code).

Who can request the withdrawal of parental authority?

The withdrawal of parental authority can be requested by the following persons (Article 378-1 of the Civil Code):

• the public prosecutor;
• a family member;
• the child’s guardian;
• the departmental child welfare service (Ase).

This request is made to the court of the place of residence of the parent against whom the action is taken; the procedure is detailed in the Code of Civil Procedure (Articles 1202 to 1210).

The withdrawal, pronounced for a limited duration, can be total or partial, and concern both parents or only one of them (Civil Code: Articles 378 to 381).