Jurisdiction and Applicable Law Issues Surrounding Boarding School: A French Perspective

By Frances Goldsmith, Libra Avocats

The topic of boarding school in France presents a whole trove of litigious issues, as many things in a family do. In addition to debating whether child support is due to the less wealthy parent when a child is in boarding school, it also creates interesting questions of jurisdiction and can possibly offer an escape for children caught between acute parental conflict.

1. Determining habitual residence when a child is in boarding school

 Even though a child lives at boarding school, the French court will still set what is known as the child’s “residence” with one of the parents (the US equivalent of physical custody) or even in certain situations provide for an alternating residence between the parents if they are sharing weekends and vacation periods.

An exception can occur when a child has been placed with a boarding school or educational institution to protect them from parental conflict. This type of decision can be ordered by the children’s judge (the equivalent of a civil juvenile court for minors in danger), a court separate from the family court and which orders measures to be taken to keep a child out of danger; for instance when there is acute parental conflict that is prohibiting the child from developing in a beneficial manner. When a child has been placed with a boarding school or educational institution, with the parents having visitation on weekends, the habitual residence of the child is transferred from the parents to the boarding school. This option has been adopted by the courts for more affluent families, but in practice few institutions accept such responsibility and are accredited for accepting such measures.

The family courts could also eventually rule on a child attending boarding school to keep him or her at a safe distance from parental conflict[1], but would consider the child’s preference and the habitual residence would remain with the parents.

2. Jurisdiction

EU Regulation Brussels II ter[2] provides in Article 7 that: “The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised.”

If the child does not have his or her habitual residence in France, but is attending boarding school in France, the French courts cannot accept jurisdiction on the basis of Article 11 – Jurisdiction based on the presence of the child: “Where the habitual residence of a child cannot be established and jurisdiction cannot be determined on the basis of Article 10, the courts of the Member State where the child is present shall have jurisdiction.” The habitual residence of a child in boarding school would be identifiable as it would either be with one or both parents.

The court would have to use either the Residual jurisdiction rules under Article 14 of the Regulation or the urgent measures under Article 15.

For the French courts to accept residual jurisdiction under Article 14 (“Where no court of a Member State has jurisdiction pursuant to Articles 7 to 11, jurisdiction shall be determined, in each Member State, by the laws of that Member State”), no other Member State could have jurisdiction, which would be the case if the children had their habitual residence in the US. The children or one of the parents would also have to be French to be able to invoke the French jurisdiction privilege rules for French nationals.

When neither the children nor the parents are French, jurisdiction could be based on Article 15 – Provisional, including protective, measures in urgent cases[3] if the child is located in France.

The French courts will therefore accept jurisdiction on an emergency basis to rule on issues related to parental authority. Although what is considered as an emergency varies greatly among courts and cases, the following can in general be considered as valid reasons for seizing a court on an urgent basis:

• A medical emergency where one parent is refusing to give consent to a needed operation;
• The need for the child to change schools due to either a family move or bullying at the current school;
• The child’s psychological welfare is at stake and measures need to be taken in terms of visitation, physical custody or more generally how the parental authority is exercised;
• Passport renewal;
• Payment of school fees if one parent is not paying their portion.

Petitioning to the French courts especially makes sense in certain emergencies to avoid having to domesticate a foreign judgement in France, which can sometimes take up to two years to obtain.

3. Applicable Law

It is interesting to note that the French courts would apply Articles 15 to 22 of the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children to determine the law applicable to the parents’ parental authority.

While the French courts typically apply Article 15.1 [4] to apply French law, Article 15.2 allows for the French courts to apply the laws of the State that has a closer connection with the child if the French courts are ruling on an emergency basis.

Furthermore, Article 16 provides that “The attribution or extinction of parental responsibility by operation of law, without the intervention of a judicial or administrative authority, is governed by the law of the State of the habitual residence of the child”.

Article 17 foresees as follows: “The exercise of parental responsibility is governed by the law of the State of the child’s habitual residence. If the child’s habitual residence changes, it is governed by the law of the State of the new habitual residence”.

Consequently, determining who has parental authority (legal custody) and how it is exercised is defined by the law of the child’s habitual residence. These articles are often forgotten by practitioners and the French courts but can have a substantial impact on who has decision making power for various circumstances.

[1] A case from the Court of appeal of Versailles is very instructive on this topic. The mother was refusing contact with the father and the children were suffering greatly from a what is called here “a conflict of loyalty” between the parents. The Versailles Court of appeal ordered the sixteen-year-old to be enrolled in boarding school to help her develop in a more beneficial manner and away from the parental conflict – Cour d’appel de de Versailles – ch. 02 sect. 01 10 janvier 2013 / n° 12/00327. The court however still set the residence (physical custody) at both parents’ house.

[2] Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast).

[3] “In urgent cases, even if the court of another Member State has jurisdiction as to the substance of the matter, the courts of a Member State shall have jurisdiction to take provisional, including protective, measures which may be available under the law of that Member State in respect of : (a) a child who is present in that Member State.”

[4] “In exercising their jurisdiction under the provisions of Chapter II, the authorities of the Contracting States shall apply their own law.”

Frances Goldsmith has robust experience in resolving complex matrimonial cases, both financial or child related, whether in the context of litigation, negotiations or in establishing pre and post-nuptial agreements that present an international element. In addition to pleading before French courts, Frances has been personally appointed an expert before foreign courts to opine on child related matters in France and French matrimonial regimes.