Decision no. 2012-268 QPC of 27 July 2012

On 6 June 2012 the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received an application for a priority preliminary ruling on the issue of constitutionality from the Cour de Cassation (first civil chamber, judgment no. 795 of 6 June 2012), raised by Ms Annie M., regarding the compatibility of Article 224-8 of the Code of Social Action and Families with the rights and freedoms guaranteed by the Constitution.

THE CONSTITUTIONAL COUNCIL,

Having regard to the Constitution;

Having regard to Ordinance no. 58-1067 of 7 November 1958 as amended, concerning the basic law on the Constitutional Council;

Having regard to the Code of Social Action and Families;

Having regard to the Civil Code;

Having regard to Law no. 84-422 of 6 June 1984 on the rights of families in their relations with the services charged with protecting families and children, and to the Statute of wards of the State;

Having regard to the Regulation of 4 February 2010 on the procedure applicable before the Constitutional Council with respect to applications for priority preliminary rulings on the issue of constitutionality;

Having regard to the observations made on behalf of the applicant by SCP Guillaume and Antoine Delvolvé, Attorneys at the Conseil d'État and the Cour de Cassation, registered on 27 June 2012;

Having regard to the observations of the Prime Minister, registered on 28 June 2012;

Having regard to the documents produced and appended to the case files;

Having heard Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing on 24 July 2012;

Having heard the Rapporteur;

1. Considering that pursuant to Article 224-8 of the Code of Social Action and Families: "The conferral of status of ward of the State may be subject to appeal within thirty days of the date of the decision by the president of the general council before the regional court by the interested party's relatives, provided that no judicial declaration of abandonment has been made and that parental authority has not been entirely revoked, by the child's immediate family or any other person who is able to establish a factual or legal connection with him, in particular on the grounds that the child has been within his custody, and provided that the appellant requests that responsibility be transferred to him.
   "If it considers that this appeal furthers the child's interests, the court shall place the child in the appellant's custody, provided that he requests that he be allowed to make arrangements for the child's protection, or transfer parental authority to him, and revoke the decision conferring the status of a ward of the State.
   "If the appeal is rejected, the court may authorise the applicant to exercise visiting rights under such conditions as it may deem fit, if this is in the interest of the child";

2. Considering that, according to the appellant, in providing that the time limit of thirty days within which a decision conferring on a child the status of a ward of the State may be contested is to commence from the date of that decision without stipulating its publication or service on the individuals with standing to act, the contested provisions violate the right to effective judicial relief;

3. Considering that the priority preliminary ruling on the issue of constitutionality concerns the first paragraph of Article L. 224-8 of the Code of Social Action and Families;

4. Considering that Article 16 of the Declaration of the Rights of Man and the Citizen of 1789 provides that: "A society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all"; that according to this provision no substantial breaches may be made of the right of interested parties to secure effective relief before a court;

5. Considering that the children taken into care by the children's social services who have been abandoned at the wishes of, or due to the lack or absence of their parents, as ascertained subject to the conditions provided for under Article L. 224-4 of the Code of Social Action and Families, shall be granted the status of wards of the State; that pursuant to Article 347 of the Civil Code, wards of the State may be adopted; that Article L. 225-1 of the Code of Social Action and Families provides that these wards "must be subject to an adoption proposal as soon as possible"; that according to Article 351 of the Civil Code, a ward of the State may be put up for adoption; that Article 352 of the Code provides that "the making available of the child for adoption shall preclude any return of the child to his family of origin";

6. Considering that a decision conferring the status of a ward of the State is taken immediately after a court order ruling that the child has been abandoned pursuant to Article 350 of the Civil Code or if the parents' parental authority has been entirely revoked pursuant to Articles 378 and 378-1 of the Civil Code; that pursuant to Article L. 224-4 of the Code of Social Action and Families, a child may only be conferred the status of a ward of the State after expiry of a time limit of two months after the date of the report conferring him the status on a provisional basis, if his parentage has not been established or is unknown, if his parentage has been established and is known and the child has been expressly referred to the children's social services with a view to being made a ward of the State by the persons with standing to consent to his adoption, or if the child is a paternal and maternal orphan and his protection has not been arranged pursuant to Chapter II of Title X of Book I of the Civil Code; that this time limit is extended to six months if the child, whose parentage has been established and is known, has been referred to the children's social service with a view to being made a ward of the State by his father or his mother and the other parent has not informed the service during that time of his or her intention to take responsibility for the child; that in this latter case, the children's social service "shall endeavour to establish the intentions of the other parent" before the expiry of this time limit of six months; that according to Article L. 224-6 of the Code of Social Action and Families, the child may be immediately taken back without any formality by the father or mother who referred him to the service until conferral of the status of a ward of the State has become definitive;

7. Considering that Article L. 224-6 of the Code of Social Action and Families provides that the child shall be declared a ward of the State on a provisional basis on the date on which the report is drawn up confirming that he has been taken into care by the children's social service; that Article L. 224-4 provides that the child may only be definitively granted the status as a ward of the State by a decision of the president of the general council upon expiry of the above time limits; that in adopting the contested provisions in the aforementioned Law of 6 June 1984, Parliament granted a right of appeal before the regional court against decisions conferring the status of a ward of the State on a definitive basis; that for this purpose, it granted standing to act to the parents, other than in cases in which a court had entirely revoked parental authority or declared that it had been abandoned, to the child's immediate family and, more broadly, to any person able to establish a connection with him, in particular on the grounds that the child has been within his custody, provided that the appellant requests that responsibility be transferred to him; that the time limit of thirty days in order to seize the court with an appeal commences from the time when the child was conferred the status of a ward of the State on a definitive basis;

8. Considering that, on the one hand, Parliament considered that it was not in the child's interests to publish the decision conferring him the status of a ward of the State, and on the other hand provided that any person able to establish a connection with the child could file an appeal within a time limit of thirty days of that decision; that the Constitutional Council does not have any power of appreciation or of decision-making of a nature similar to that of Parliament; that it is not for the Council to impose its own assessment in place of that of Parliament regarding the balance to be struck, in the interest of the child in the care of the children's social service under the aforementioned conditions, between the rights of the individuals who intend to invoke a prior relationship with him and the objective of facilitating his adoption;

9. Considering however that whilst Parliament was able to choose to give standing to act to the individuals specified in a non-closed list, and who consequently cannot all individually receive notice of the decision concerned, in failing to stipulate the circumstances and conditions under which the individuals with a close link with the child are effectively permitted to exercise this right of appeal it deprives the right to obtain effective judicial relief of legal guarantees; that accordingly, the provisions of the first paragraph of Article L. 224-8 of the Code of Social Action and Families violate the requirements of Article 16 of the 1789 Declaration and must be ruled unconstitutional;

10. Considering that the second paragraph of Article 62 of the Constitution provides: “A provision declared unconstitutional on the basis of Article 61-1 is revoked as from the publication of the decision of the Constitutional Council or at a later date stipulated in the decision. The Constitutional Council determines the conditions and the limits under which the effects produced by the provision may be questioned"; that, if, as a matter of principle, the declaration of unconstitutionality must benefit the party submitting the priority question on constitutionality and the provision ruled unconstitutional cannot be applied to proceedings in progress at the time the decision of the Constitutional Council is published, the provisions of Article 62 of the Constitution grant the Council the power both to set the date of repeal and to defer its effects as well as to provide for the review of the effects that the provision generates before this declaration takes effect;

11. Considering that the immediate repeal of the contested provisions would have the effect of removing the right to challenge decisions conferring the status of ward of the State and would have manifestly excessive consequences; that in order to enable the legislature to remedy the unconstitutional situation ascertained, it is appropriate to defer the date of this repeal until 1 January 2014; that it shall only apply to challenges to decisions conferring the status of ward of the State taken after this date,

HELD :

Article 1.- The first paragraph of Article L. 224-8 of the Code of Social Action and Families is unconstitutional.

Article 2.- The declaration of unconstitutionality contained in Article 1 shall take effect on 1 January 2014 in the conditions specified in recital 11.
Article 3.- This decision shall be published in the Journal Officiel of the French Republic and notified in the conditions provided for under Article 23-11 of the Ordinance of 7 November 1958 referred to hereinabove.

Deliberated by the Constitutional Council in its session of 26 July 2012, sat on by: Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Mrs Claire BAZY MALAURIE, Mr Guy CANIVET, Mr Michel CHARASSE, Mr Renaud DENOIX de SAINT MARC, Mr Hubert HAENEL and Mr Pierre STEINMETZ.

Announced on 27 July 2012.