Non-representation of child

Child non-representation occurs when a parent refuses to hand over one's child to the other during a rights of access and accommodation or period of alternate custody.

That refusal infringes on parental authority, because it does not comply with the conditions laid down in court decision, a divorce agreement or a registered parental agreement.

For the offense of non-representation of a child to be constituted, 3 conditions shall be combined with:

• The existence of an applicable decision : this is a court decision laying down the arrangements for the custody, residence or rights of access and accommodation of the child. This can be a decision of the Family Court Judge (Jaf), a divorce agreement enforceable or a registered parental agreement.

• A refusal to hand over the child : the parent does not hand over the child to the other parent who is entitled to receive the child. Failure to observe the date, time or place of surrender of the child may be sufficient to constitute such refusal.

• A willingness not to respect the decision : the parent acts voluntarily in breach of the legal obligations concerning the mode of custody of the child, regardless of the reason given.

The parent who refuses to hand over the child to the other must be able to demonstrate that there is a real and immediate danger for the child. That is to say, a danger based on objective, verifiable and serious elements.

The parent must provide evidence.

This refusal may be invoked only in exceptional situations, i.e. when the child is exposed to a risk severe for its security, his health or its morality. For example, in the case of physical, sexual or psychological violence, abuse, severe alcoholism, drug addiction or psychiatric disorders endangering the child.

One conflict between the parents or a concern are not sufficient to justify such a refusal.

If a parent believes that their child is in danger, they must lodge a complaint, then seize urgently the Jaf: titleContent to request the modification of the residence, the right of access and/or accommodation.

The simple refusal of the child to see one of his parents does not allow the other parent not to entrust it.

Parents may consider a family mediation.

If the situation does not improve, the Jaf: titleContent can be entered.

The judge decides whether to change the residence of the child or the right of access and accommodation. It takes into account, in particular, the age and maturity of the child.

The first step is to go to the police station or to the gendarme to report the situation and lodge a complaint for child no-show.

The filing of a complaint may be accompanied by any evidence to demonstrate the non-representation of the child. For example: exchanges between the parents (sms, emails, etc.), finding of the commissioner of justice attesting to the absence of the child, all attempts to exercise the right of access and accommodation, testimonies.

The parent who is the victim of child non-representation may also grab the Jaf to change the child's residence or access rights.

The offense failure to represent a child is punishable by a penalty of €15,000 of fine and1 year of imprisonment.

The criminal court may also pronounce the additional penalties following:

• Reorganization of rights of access in media environment

• Mandatory presence of a third party when passing arms between parents

• Total or partial suspension or withdrawal of parental authority

• Penalty payment the parent will have to pay for each day of delay or each breach

• Socio-judicial monitoring

• Payment of damages and interest to the victim parent as compensation for the non-material damage suffered or material damage (e.g. canceled holidays)

• Prohibition on leaving the territory of the child without the permission of the two parents.