This is the second and final part of a post contributed by Estelle Gallant, regarding the provisions on parentage in the proposed codification of French PIL. The first part can be found here.
As explained in the first part of this post, the French draft code of private international law devotes an entire sub-section to parentage. After the presentation of the general choice of law rule related to biological parentage (Article 59), it is proposed to shed light on the two special rules in the same matter (Articles 60 and 61).
As regard the general rule codified in Article 59, the substitution of the national law of the child for the national law of the mother is the most positive contribution of the draft. By contrast, the two special rules of the draft, namely Articles 60 and 61, fall short of expectations, not always providing the expected simplifications or clarifications.
Special Rule on Voluntary Acknowledgement of Children (Article 60)
While innovative in certain respects, Article 60 of the draft Code is – for the most part – a reworking of positive law, resulting from a combination of Article 311-17 of the Civil Code and its interpretation by the courts. Although some of the difficulties pointed out in the literature and not necessarily resolved in the case law have been resolved by the draft, not all have been.
Specifically devoted to the voluntary acknowledgement of a child (i.e. declaration of a person that s/he is the parent of the relevant child), whether paternal or maternal, Article 60 distinguishes between substantive validity and formal validity of the acknowledgement, which is a novelty compared with the current system.
Substantive Validity of Voluntary Acknowledgement
Article 60(1) is innovative since it presents itself as an exception to the general provisions.
The solution of the derogation closes a doctrinal controversy that concerned both the methodological nature of the rule in Article 311-17 of the Civil Code and its scope of application. By making the rule on voluntary acknowledgement a derogation from the general rule, it follows that the general rule is purely and simply put aside as soon as an acknowledgement of a child is concerned. This solution is problematic under the current regime because it contributes to putting aside the law of the mother which may validate voluntary acknowledgement, but it is no longer problematic in the context of the draft: even by derogating from the general rule, the special rule merely offers an additional alternative connecting factor to that contained in the general rule. The derogation thus no longer seems to be contrary to the spirit of favouring the establishment of parentage out of marriage which is the overarching principle of the provisions on voluntary acknowledgement.
The conflict-of-laws rule (Article 60(1)) contains an alternative connecting factor to validate the acknowledgement of a child: the national law of the person making the acknowledgement or the national law of the child on the day of the acknowledgement. This is the same rule as the one currently found in the civil code (Article 311-17). The methodological nature of this rule is unclear: is it a “substance-oriented” choice of law rule, a rule of necessary application, a substantive domestic rule ordering the taking into consideration of foreign laws or perhaps even a rule of recognition of a situation? The drafters of the draft Code have remained deaf to these questions and have reproduced the provision almost identically. This being said, the methodological nature of the text is less important once its scope is clearly established and its implementation clarified.
The draft Code contains (in Article 60(4)) what may again be analysed as a special public policy clause, allowing recourse to French law in cases where neither of the two national laws referred to in Art 60(1) allows the validation of the acknowledgement. The purpose of the provision is to further strengthen the principle of favouring the establishment of parentage by voluntary acknowledgement. The provision is similar to the one that is proposed under Article 59, but the triggering factor is different. In the case of acknowledgement, French law will displace the foreign law that does not allow acknowledgement only in the event that the child is domiciled in France.
Lastly, it is regrettable that the draft code has not cared to define the notion of voluntary acknowledgement of children. Case law has revealed a difficulty of characterisation in situations that would have deserved particular attention, such as the case where the child has a birth certificate mentioning the mother’s name or the father’s name (Civ. 1ère, 28 May 2015, no. 14-18.100). Such cases have been dealt with under Article 311-17 of the Civil Code, whereas such a solution would certainly be worth discussing.
Challenges to Voluntary Acknowledgement
Following on from Article 60(1), Article 60(2) codifies judge made rules accepted since 1999 (Civ. 1ère, 6 July 1999, no. 97-19.453). Disputes as to the truthfulness of the acknowledgement or to its validity, are subject cumulatively to the national law of the author and the national law of the child on the day of the acknowledgement. While acknowledgement is favoured by alternative connecting factors and the requirement that only one of these laws validates the acknowledgement, challenges to acknowledgements are disfavoured by the requirement that the requirements of two laws are applied cumulatively. Since the solution is not without criticism (in particular, why should preventing a child from destroying a parentage be more protective than the reverse?), it is regrettable that it has not been rethought.
Formal Validity of the Act of Voluntary Acknowledgement.
Article 60(3) provides a rule concerning the conditions of form for validly registering of voluntary acknowledgement of a child. It adds to the two alternative connecting factors already provided for the substantive conditions of acknowledgement, a third connecting factor involving the law of the State in whose territory the act of acknowledgement is drawn up. This is a traditional solution as regards the form of documents and makes it possible not to penalise excessively for reasons of form a document which would otherwise be valid in substance.
Substantive Rule
As indicated earlier in the commentary on Article 59, Article 60(5) contains a substantive rule specific to conflicts of filiation/parentage and, more specifically, to conflicts of acknowledgements. Based on a chronological principle, the text indicates that “an acknowledgement, as long as it is not annulled, deprives of effect any subsequent acknowledgement of the child in the same line”. It is thus understood that in the presence of two voluntary acknowledgements established in two different States, the first should first be contested in order to be able to rely on the second. The solution is to be approved; it might have deserved to be generalised to all modes of establishment of filiation.
Special Rule on Enjoyment of a Status (Article 61)
Article 61 of the draft code of private international law more or less reproduces the current Article 311-15 of the Civil Code by giving effect to the substantive provisions of domestic law relating to “enjoyment on a status” (possession d’état) a concept specific to French law which draw consequences from the fact that a person raises a child as if s/he was his own. However, two clarifications are made by the draft text.
On the one hand, it limits the scope by referring only to provisions concerning the establishment of filiation (for example, Article 314 of the Civil Code, which allows the restoration of the presumption of paternity of the husband).
On the other hand, it indicates that the provision applies only by way of derogation from the preceding provisions, i.e. both with regard to the general rule and with regard to the special rule on voluntary acknowledgement. The clarification regarding the scope of the exception is interesting, as the solution contradicts that adopted very recently by the Court of Cassation. In a judgment of 23 March 2022, the Court of Cassation ruled that Article 311-15 of the Civil Code constituted a derogation only from Article 311-14 and not from the rule in Article 311-17. In other words, according to this judgment, as soon as Article 311-17 is applicable, it excludes Article 311-15 of the Civil Code.
Even if it has been cleaned up in this way, it is surprising that this provision relating to the French rules on enjoyment of a status has been retained in the draft Code: the complexity of the rule has been denounced many times, its application is extremely rare and its usefulness is unconvincing.
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This is the second and final part of a post contributed by Estelle Gallant, regarding the provisions on parentage in the proposed codification of French PIL. The first part can be found here.
As explained in the first part of this post, the French draft code of private international law devotes an entire sub-section to parentage. After the presentation of the general choice of law rule related to biological parentage (Article 59), it is proposed to shed light on the two special rules in the same matter (Articles 60 and 61).
As regard the general rule codified in Article 59, the substitution of the national law of the child for the national law of the mother is the most positive contribution of the draft. By contrast, the two special rules of the draft, namely Articles 60 and 61, fall short of expectations, not always providing the expected simplifications or clarifications.
Special Rule on Voluntary Acknowledgement of Children (Article 60)
While innovative in certain respects, Article 60 of the draft Code is – for the most part – a reworking of positive law, resulting from a combination of Article 311-17 of the Civil Code and its interpretation by the courts. Although some of the difficulties pointed out in the literature and not necessarily resolved in the case law have been resolved by the draft, not all have been.
Specifically devoted to the voluntary acknowledgement of a child (i.e. declaration of a person that s/he is the parent of the relevant child), whether paternal or maternal, Article 60 distinguishes between substantive validity and formal validity of the acknowledgement, which is a novelty compared with the current system.
Substantive Validity of Voluntary Acknowledgement
Article 60(1) is innovative since it presents itself as an exception to the general provisions.
The solution of the derogation closes a doctrinal controversy that concerned both the methodological nature of the rule in Article 311-17 of the Civil Code and its scope of application. By making the rule on voluntary acknowledgement a derogation from the general rule, it follows that the general rule is purely and simply put aside as soon as an acknowledgement of a child is concerned. This solution is problematic under the current regime because it contributes to putting aside the law of the mother which may validate voluntary acknowledgement, but it is no longer problematic in the context of the draft: even by derogating from the general rule, the special rule merely offers an additional alternative connecting factor to that contained in the general rule. The derogation thus no longer seems to be contrary to the spirit of favouring the establishment of parentage out of marriage which is the overarching principle of the provisions on voluntary acknowledgement.
The conflict-of-laws rule (Article 60(1)) contains an alternative connecting factor to validate the acknowledgement of a child: the national law of the person making the acknowledgement or the national law of the child on the day of the acknowledgement. This is the same rule as the one currently found in the civil code (Article 311-17). The methodological nature of this rule is unclear: is it a “substance-oriented” choice of law rule, a rule of necessary application, a substantive domestic rule ordering the taking into consideration of foreign laws or perhaps even a rule of recognition of a situation? The drafters of the draft Code have remained deaf to these questions and have reproduced the provision almost identically. This being said, the methodological nature of the text is less important once its scope is clearly established and its implementation clarified.
The draft Code contains (in Article 60(4)) what may again be analysed as a special public policy clause, allowing recourse to French law in cases where neither of the two national laws referred to in Art 60(1) allows the validation of the acknowledgement. The purpose of the provision is to further strengthen the principle of favouring the establishment of parentage by voluntary acknowledgement. The provision is similar to the one that is proposed under Article 59, but the triggering factor is different. In the case of acknowledgement, French law will displace the foreign law that does not allow acknowledgement only in the event that the child is domiciled in France.
Lastly, it is regrettable that the draft code has not cared to define the notion of voluntary acknowledgement of children. Case law has revealed a difficulty of characterisation in situations that would have deserved particular attention, such as the case where the child has a birth certificate mentioning the mother’s name or the father’s name (Civ. 1ère, 28 May 2015, no. 14-18.100). Such cases have been dealt with under Article 311-17 of the Civil Code, whereas such a solution would certainly be worth discussing.
Challenges to Voluntary Acknowledgement
Following on from Article 60(1), Article 60(2) codifies judge made rules accepted since 1999 (Civ. 1ère, 6 July 1999, no. 97-19.453). Disputes as to the truthfulness of the acknowledgement or to its validity, are subject cumulatively to the national law of the author and the national law of the child on the day of the acknowledgement. While acknowledgement is favoured by alternative connecting factors and the requirement that only one of these laws validates the acknowledgement, challenges to acknowledgements are disfavoured by the requirement that the requirements of two laws are applied cumulatively. Since the solution is not without criticism (in particular, why should preventing a child from destroying a parentage be more protective than the reverse?), it is regrettable that it has not been rethought.
Formal Validity of the Act of Voluntary Acknowledgement.
Article 60(3) provides a rule concerning the conditions of form for validly registering of voluntary acknowledgement of a child. It adds to the two alternative connecting factors already provided for the substantive conditions of acknowledgement, a third connecting factor involving the law of the State in whose territory the act of acknowledgement is drawn up. This is a traditional solution as regards the form of documents and makes it possible not to penalise excessively for reasons of form a document which would otherwise be valid in substance.
Substantive Rule
As indicated earlier in the commentary on Article 59, Article 60(5) contains a substantive rule specific to conflicts of filiation/parentage and, more specifically, to conflicts of acknowledgements. Based on a chronological principle, the text indicates that “an acknowledgement, as long as it is not annulled, deprives of effect any subsequent acknowledgement of the child in the same line”. It is thus understood that in the presence of two voluntary acknowledgements established in two different States, the first should first be contested in order to be able to rely on the second. The solution is to be approved; it might have deserved to be generalised to all modes of establishment of filiation.
Special Rule on Enjoyment of a Status (Article 61)
Article 61 of the draft code of private international law more or less reproduces the current Article 311-15 of the Civil Code by giving effect to the substantive provisions of domestic law relating to “enjoyment on a status” (possession d’état) a concept specific to French law which draw consequences from the fact that a person raises a child as if s/he was his own. However, two clarifications are made by the draft text.
On the one hand, it limits the scope by referring only to provisions concerning the establishment of filiation (for example, Article 314 of the Civil Code, which allows the restoration of the presumption of paternity of the husband).
On the other hand, it indicates that the provision applies only by way of derogation from the preceding provisions, i.e. both with regard to the general rule and with regard to the special rule on voluntary acknowledgement. The clarification regarding the scope of the exception is interesting, as the solution contradicts that adopted very recently by the Court of Cassation. In a judgment of 23 March 2022, the Court of Cassation ruled that Article 311-15 of the Civil Code constituted a derogation only from Article 311-14 and not from the rule in Article 311-17. In other words, according to this judgment, as soon as Article 311-17 is applicable, it excludes Article 311-15 of the Civil Code.
Even if it has been cleaned up in this way, it is surprising that this provision relating to the French rules on enjoyment of a status has been retained in the draft Code: the complexity of the rule has been denounced many times, its application is extremely rare and its usefulness is unconvincing.
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