French Supreme Court Confirms Foreign Adoption Judgments May Not Be Denied Exequatur for Lack of Consent of Legal Representatives

This post was written by Mathilde Codazzi, who is a doctoral student at the University Paris II Panthéon-Assas.

In a judgment of 11 May 2023, the French Supreme Court For private and criminal matters (Cour de cassation) ruled that the requirement in the French civil code that the legal representatives of a child give their consent to his/her adoption, and which applies irrespective of the law governing otherwise adoption, is no ground for denying exequatur to a foreign adoption judgment.

Background

Two decisions rendered by the Nottingham Family Court on 17 March 2009 and two other decisions rendered by the London Family Court on 22 November  2012 granted the adoption of four children to an English national and a French and English national who entered into a civil partnership in 2003 and married in 2017. By a judgment of 17 December 2020, the French first instance court (Tribunal judiciaire de Nantes) granted exequatur to the four English decisions.

Court of Appeal

By a judgment of 25 October 2021, the Rennes Court of Appeal overturned the first instance decision on the ground that the legal representatives of the children, namely their biological parents, had not given their consent to the adoption.

Article 370-3 of the French Civil Code reads

The requirements for an adoption are governed by the national law of the adoptive parent or, in case of adoption by two spouses, by the law which governs the effects of their union. An adoption however may not be declared when it is prohibited by the national laws of both spouses.
Adoption of a foreign minor may not be declared when his personal law prohibits such an institution, unless the minor was born and resides usually in France.
Whatever the applicable law may be, adoption requires the consent of the legal representative of the child. The consent must be free, obtained without any compensation, subsequent to the birth of the child and informed as to the consequences of adoption, especially when it is given for the purpose of a plenary adoption, as to the full and irrevocable character of the breaking off of the pre-existing kinship bond.

According to the Court of Appeal, the requirement contained in Article 370-3 of the French Civil Code that they give their free and informed consent, notably regarding the irrevocability of adoption since the pre-existing bond of filiation is dissolved by a full adoption (“adoption plénière”), is a substantive provision of private international law which must be applied whatever the law applicable to the adoption may be and an essential principle of the French law of adoption. Hence the court concluded that the English decisions were not in conformity with French international public policy and should not be enforced, as their enforcement would deprive the French international public policy of its substance.

Supreme Court

The issue was thus to determine whether Article 370-3 of the French Civil Code, which requires that the legal representative of the child give their free and informed consent to the adoption of the child, can be opposed to the enforcement of a foreign adoption judgment if such consent was not obtained.

By a judgment of 11 May 2023, the French Supreme Court overruled the decision of the Court of Appeal on the ground that Article 370-3 of the French Civil Code may not be invoked against a foreign adoption judgment to prevent its exequatur.

In other words, the fact that the children’s legal representatives did not give their consent to the adoption ordered by a foreign judgment cannot be invoked against the enforcement of this judgment. This judgment confirms the already established solution according to which the violation of the requirement that the free and informed consent of the child’s legal representative is necessary for the adoption to be ordered pursuant to Article 370-3 of the French Civil Code cannot amount to a ground of refusal of enforcement of the foreign adoption judgment. The French Supreme Court had indeed ruled so in a judgment of 7 December 2016 about an Ivorian judgment. Article 370-3 only applies in French adoption proceedings.