Association FrançaiseTHE CHILDREN’S COURT
le tribunal pour enfants
François TOURET-DE COUCY
former children’s judge
A. The civil justice system for protecting children at risks :
In France, two institutions are responsible for protecting children at risks, that means having serious problems (sexual abuse, violence in the family, alcoholic parents, offending behaviour) :
- the county council (Conseil général) social services on one hand,
- the children’s judge on the other hand.
The action of these two institutions are meant to be complementary :
- the county social services can only act with parental agreement or request,
- only the judge can take authoritative measures imposed on parents and children. This explains why the children’s judge often acts after the social services have failed to implement a supportive action for the family.
Going back to the county level, the social services are responsible for primary prevention actions, such as financial help or free medical care for children under 6 years old.
Let’s discuss in more depth the role of the children’s judge.
A case can only be referred to a children’s judge if the health, the morality, the safety of a child is in danger or if their conditions of education are seriously compromised.
But the law does not give further guidelines or criteria.
The role of the children’s judge has to be understood as a secondary action that would be triggered only if the social services did not succeed, and if the case is serious enough to eventually justify an authoritative measure. The lack of success could be when the family refuses to accept the advice and help of the social services.
Let me highlight that though the children’s judge can be asked for directly by the child, the parents, the child’s guardian or tutor, it is more often the deputy juvenile prosecutor who refers the cases to the judge, after evaluating the consistency of the case. The deputy prosecutor receives the social services referrals. He is free to decide no further action if having assessed the case, he finds it is not serious enough.
When the case is referred to a children’s judge, a letter is systematically sent to the parents to inform them of this action. A first audience will take place in the judge’s office. Both the parents and the children must attend.
The children’s judge informs the family about the contents of the report sent by the referring bodies (e.g. school, social services) and hears the parents and the children together or separately.
According to how they admit or deny the difficulties, the judge decides further investigation, a counselling measure or the child’s placement in a foster home or family.
In most cases, an investigation takes place first, in order to help the family to have an in-depth analysis of the problems. It allows the family to think about possible or acceptable options.
In a second audience, the judge will examine the conclusions of the report and after having heard the family, will take a decision. If the judge decides to impose a supervision order, the maximum duration is 2 years, with a compulsory review at the end.
I’d like to stress that the hearing in the children’s judge office is very informal. The judge wears plain clothes. The judge sits behind his desk with the family just in front of him. An advocate can assist the parents but it is optional. Most families do not have any counsel and do not wish to have one.
The judge has to inform the family of its rights, which inevitably leads the parents to affirm that they do not need any external assistance.
Whenever the judge feels it’s appropriate, he can inform the children of the possibility for them to have their own representation. If the child agrees and doesn’t know any lawyer, the counsel will be appointed by the chief advocate.
May I put forward several key points of the French civil procedure for children in danger.
1. There is no need for evidence.
For justifying an action, it is not necessary to prove that the parents illtreat their children. No testimony is required, no evidence is needed.
The legitimacy for action depends on the disrupted behaviour of the child, which has been pointed out by the institutions (school, medical care centre). Very often, parents agree that the problem of disruptive behaviour exists and recognize they cannot cope with it any more. It is only after a first period of educational counselling that parents usually begin to admit their failures.
Of course, the more the family deny the problems, the more the judge will have to collect elements justifying his decision, but we still don’t speak about evidence, even if there is a total family denial.
2. The procedure is informal.
Everything is designed to permit a direct dialogue between the judge and the parents. It is the role of the judge to inform, to object, to stress difficult points, to ask for the parents and the children’s points of view.
3. The judge must try to get the parents to accept, or even to agree on the decided measures.
The direct dialogue between the judge and the family allows the judge to evaluate whether they feel a measure is acceptable, whether they feel a measure will be beneficial, and in extreme case, do they agree that a temporary separation is required.
4. The judge is a stable figure who will follow up and assess the measure while in operation.
He can adapt the action at any time, either to restrain, either to expand parental rights, or even to change the action to fit new needs.
5. People have access to their file and a faster access to the children’s judge in case of an emergency placement.
Since September 2002, parents and children can have a direct access to their judicial documents and file. They cannot have copies, but they can ask for a consultation of the documents in the premises of the children’s court.
Copies can be given to the advocates.
In case of an emergency placement by the prosecutor or the children’s judge without an audience, it is necessary to organize a hearing with the family 15 days at the latest, after the decision has been taken.
B. The criminal justice system for juveniles :
Though the law has been revised, modified and upated several times, the cornerstone of the criminal justice system for juveniles is still called the “ordonnance of the second February 1945".
First of all, I’d like to underline that if the priority has to be given to educational measures, a prison sentence is possible from 13 years old onwards.
Now let me draw your attention to educational measures. They can be decided before trial and the pre-trial period is used as a test period for evaluating the capacities of the child to change and amend their behaviour.
The possible measures range from psychological or psychiatric expertise, social enquiry, educational assessment, to a remand supervision order, a reparation order, a remand placement in a foster institution.
The main point is that it is very important that a a significant period of time (several months) is organized from the initial prosecution and before going to the trial, in order to assess the capacity of the child to improve their situation.
I have to underline that the children’s judge is in charge of the entire process from the investigation to the implementation of the sentence :
- He acts as an investigating judge.
- He chairs the tribunal assisted by two lay judges.
- He controls the implementation of supervision orders, suspended sentences and community work decided by the tribunal.
- He has to give a preliminary opinion for a prison sentence to be converted by the post-sentencing judge.
After the investigation period, the children’s judge chooses to orient the case to a chamber hearing or to a tribunal hearing.
In a chamber hearing, the judge sits alone, with their clerk, without the prosecutor. The judge can decide only warning or educational measures such as supervision order, reparation order, placement, judicial protection (possible after 18 years old for 5 years maximum).
In a tribunal hearing, the children’s tribunal (1 judge + 2 lay judges) can decide all the educational measures plus repressive sentences as suspended emprisonment, suspended imprisonment with obligations, imprisonment, community work, fines.
A child can only be sentenced to prison for an offence committed from 13 years old.
Remand custody is possible from 13 years old only for the most serious offences (crimes).
Until September 2002, remand custody was not possible before 16 years old for small offences (délits).
The maximum prison sentence is automatically divided by 2 from 13 to 16 years old. It is normally divided by 2 from 16 to 18 years old, although it is possible, with a specific motivation, to have the same maximum sentence as adults.
The last reform of the juvenile justice system :
The law of 9 September 2002 has deeply reformed the juvenile criminal procedure :
- educative sanctions are possible from 10 years old,
- the age of criminal responsibility is still not precisely determined, despite the commitment asked by the International Convention of Children’s Rights.
- a minor over 16 who committed a 7 year sentence offence, is automatically sentenced in a tribunal hearing, in the presence of the prosecutor.
- a child between 13 and 16 years old can be placed in a closed institution with a “no-truancy obligation”. In case this obligation is not met, it is possible to send the child in prison before trial.
- For recidivists, the prosecutor can choose a fast track procedure to a tribunal hearing.
New prisons for minors under 16 are being built. The consequence should be a higher rate of imprisonment for minors in the future.
