The right of access and accommodation is defined as the right of the parent who has not been granted custody of the common child, respectively the parent with whom the child does not have his or her habitual residence, to meet and receive him or her at home. It is granted to the father or mother, but it can also be granted to a close relative, if the latter so requests.
The right of access and accommodation shall be exercised in accordance with arrangements to be agreed between parents. If no agreement is reached, the family court will determine the terms and conditions. This right can be exercised in different ways, which can be traditional (every other weekend as well as half of school holidays) or more extended (every other weekend, one or two days during the week, half of school holidays, for example).
The right of access and accommodation must be strictly respected.
The parent who has been granted access and accommodation may not be prevented by the other parent from exercising it for any reason whatsoever, except for duly established serious reasons. In this case, it will then be up to the parent who invokes these serious grounds to bring the matter before the competent courts in order to take the necessary measures in the child’s interest.
Failure to comply with the procedures for exercising access and accommodation rights, laid down by a court decision, constitutes the offence of non-presentation of a child. The offence of non-representation is punishable by a prison sentence ranging from 8 days to two years and a fine of €251.00 to €2,000.00, in accordance with Article 371-1 of the Criminal Code, according to which “shall be punished by imprisonment from eight days to two years and a fine of €251 to 2.000 euros or only one of these penalties, parents and other persons who will exempt or attempt to exempt a minor from the measures which must be taken in his respect by application of the provisions of the Youth Protection Act, or by virtue of a decision, even a provisional one, of a judicial authority, who will exempt him or attempt to exempt him from the custody of those to whom he has been entrusted, who will not represent those who have the right to claim him, will remove him or have him withdrawn, even with his consent. If the offender had incurred the total or partial withdrawal of parental authority over the child, imprisonment may be increased to three years”.
Make no mistake about it, a prison sentence can actually be imposed on a parent who continuously obstructs the other parent’s right of access and accommodation, even if he believes that his refusal would be justified. For example, a mother was sentenced to a suspended sentence of 12 months’ imprisonment for repeatedly refusing to hand over the common children to their father, in violation of the latter’s right of access and accommodation. Although the Court of Appeal, by reversing the judgment, reduced the conditional sentence to 6 months, the fact remains that the prison sentence has been upheld in principle.
In a judgment rendered on 10 April 2019, the French Court of Cassation also upheld the decision of the trial judges sentencing a mother, who stubbornly and continuously refused to hand over the child to her father, to one year’s imprisonment, including six months suspended and probation, with no possibility of any adjustment of the sentence. It was considered that “only a firm prison sentence is likely to usefully sanction the offence charged, any other sanction being manifestly inadequate”. The Court of Cassation has ruled that a prison sentence imposed on one parent which prevents the other from exercising his right of access and accommodation is not contrary to the European Convention on Human Rights.
Admittedly, the parent with whom the habitual residence of the common child has been determined cannot interfere with the other parent’s right of access and accommodation, failing which he or she may be subject to criminal sanctions. But what if the child himself is an obstacle?
The offence provided for in article 371-1 of the Criminal Code, which refers to the parent who fails to hand over the child to the person who can claim it by virtue of a court decision, may consist either in the commission by the accused of positive acts or in his or her failure to commit certain specified acts. The accused must therefore not only refrain from exerting negative moral pressure on the child, but also has a positive obligation to intervene in person to ensure that the child complies with the judicial decision. If necessary, the child must be persuaded by all means of the necessity to submit to the judicial decision. In this area, however, the use of physical restraint can only be exceptionally effective (Court of Appeal Lux., 03.07.2013, No. 367/13).
If the resistance of children or their aversion to the person claiming them cannot constitute a legal excuse or justification for the person who has an obligation to represent them, it is otherwise when he has used his authority in vain and exceptional circumstances have prevented him from fulfilling his obligation. Such circumstances may exist, in particular, when a child with a personality already affirmed is present and his refusal does not reflect a mere whim or the attitude of the parent who has custody of the child, but is due to circumstances that have caused the child to feel such deep aversion that it is impossible for the parent required to represent the child to overcome his resistance (Court of Appeal Lux., 16.06.2016, No 383/2016).
It should be kept in mind that the purpose of access and accommodation is to enable the child to maintain a relationship with the parent who has been granted it. Opposing it will not only expose the refractory parent to a penalty of imprisonment and a fine in accordance with article 371-1 of the Criminal Code, but will also harm the well-being of the child who will somehow be the main victim of the persistent conflict between his or her parents.