Unlawful removal of children: Excessive formalism due to the inadmissibility of the public prosecutor's statement of appeal not submitted electronically, rendering the father's claims inadmissible (Ruling n° 305 - 22-21.863)

FRENCH REPUBLIC

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ON BEHALF OF THE FRENCH PEOPLE

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JUDGMENT OF THE COUR DE CASSATION (COURT OF CASSATION), FIRST CIVIL CHAMBER, 5 APRIL 2023

Mr [W] [E], domiciled in Clos du Littoral, [Address 3] (Mauritius), lodged appeal No. U 22-21.863 against the judgment delivered on 3 June 2021 by the cour d'appel (Court of Appeal) of Amiens (family chamber) in the dispute between:

(1) the Prosecutor-General to the cour d'appel (Court of Appeal) of Amiens, domiciled at the office of the Prosecutor-General, [Address 1],

(2) Ms [I] [X] [P], domiciled at [Address 2], respondents in the quashing.

The plaintiff bases his appeal on the single plea for quashing.

The case file was sent to the Prosecutor-General.

On the report of Mr Fulchiron, judge, the observations of SCP Spinosi, lawyer of Mr [E], of SARL Ortscheidt, lawyer of Ms [P], and the advisory opinion of Ms Caron-Deglise, Advocate-General, after debate in the public hearing of 21 March 2023, attended by Mr Chauvin, president, Mr Fulchiron, reporting judge, Ms Auroy, elder judge, Ms Antoine, Poinseaux, Ms Dard, Ms Beauvoie and Mr Fulchiron, judges, Mr Duval and Mr Buat-Ménard, Ms Azar and Ms Daniel, judge-referees, Ms Caron-Deglise, Advocate-General, and Ms Layemar, Chamber Registrar,

the First Civil Chamber of the Cour de cassation (Court of Cassation), composed, pursuant to Article R. 431-5 of the Judicial Code, of the abovementioned President and judges, after discussion in accordance with the law, has delivered the present ruling.

Account of the dispute

Facts and procedure

1. According to the ruling under appeal (Amiens, 3 June 2021), Mr [E] and Ms [P] had three children [D] on 8 April 2010, [S] 22 April 2012 and [T] 4 May 2014.
2. The family moved to Mauritius in December 2014.
3. Following the end-of-year holidays of 2019, Ms [P], who had left with the children in France, opposed their return to Mauritius.
4. On 15 January 2020, Mr [E] applied to the Central Authority of Mauritius to obtain the immediate return of the children on the basis of the Hague Convention of 25 October 1980 on the civil aspects of international child abduction.
5. On 10 July 2020, the Public Prosecutor at the tribunal judiciaire (Tribunal of First Instance) of Amiens referred the matter to the family judge. Mr [E] intervened voluntarily in the proceedings.
6. By interim order of 10 July 2020, the family judge found that the failure to return the children to Mauritius was unlawful but rejected the return request on the grounds that there was a serious risk that it would expose them to a physical or mental danger or in any other way place them in an intolerable situation.
7. The public prosecutor appealed against said decision.

Pleas

Review of the plea

On the first part of the plea

Statement of plea

8. Mr [E] challenges the judgment that considers the declaration of appeal formalised on 7 August 2020 by the public prosecutor inadmissible and that, consequently, rejects examination of the cross-appeal, whereas "although, for it to be admissible, Article 930-1 of the Civil Procedure Code requires the declaration of appeal to be transmitted by electronic means, declaring inadmissible, in respect of the wrongful removal of a child, an appeal lodged by the public prosecutor on paper when the electronic transmission thereof has failed is a disproportionate infringement of the right of access to the judge, thus depriving one of the children's parents of their right to cross-appeal, since the public prosecutor's manifest intention to lodge an appeal was clear from the findings of the judgment; whereas, by holding, in order to declare the appeal inadmissible and deprive Mr [E] of the right to have the case re-examined, that the Public Prosecutor's Office had formalised the appeal on paper as it could not be sent electronically due to "an error by the Public Prosecutor's Office regarding the type of email address accepted by the RPVA" (judgment, p. 6, § 2), when it was clear from its findings that the Public Prosecutor's Office intended to appeal the order of 31 July 2020 rejecting the request for [D], [S] and [T] to be returned to their father in Mauritius, the cour d'appel (Court of Appeal) violated Article 6 § 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; "

Statement of reasons

Court's response

Admissibility of plea

9. Ms [P] disputes the admissibility of the plea. She maintains, firstly, that, as he did not lodge a main appeal against the interim order, Mr [E] has no interest in challenging the inadmissibility of the Public Prosecutor's statement of appeal and, secondly, that, as Mr [E] did not defend the procedural issue raised concerning the inadmissibility of the Public Prosecutor's statement of appeal, the plea is new and mixes fact and law.
10. However, on the one hand, Mr [E] has an interest in contesting the inadmissibility of the main appeal lodged by the public prosecutor's office, where the consequence of said inadmissibility was that his cross-appeal was not examined.
11. On the other hand, the plea, which does not refer to any consideration of fact that does not result from the statements made in the judgment, is purely legal in nature.
12. The plea is therefore admissible.

Merits of the plea

In view of Article 6, § 1 of the Agreement for the Protection of Human Rights and Fundamental Freedoms, Articles 6 and 7 of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction and Article 1210-4 of the Civil Procedure Code:

13. According to the first of these texts, everyone has the right to a fair and public hearing by an independent and impartial tribunal in a reasonable period of time.
14. Pursuant to the second two,  the central authorities established by the convention must cooperate with each other and promote cooperation between the competent authorities in their respective States in order to ensure the immediate return of children. In particular, they must take all appropriate measures to initiate or encourage the opening of judicial or administrative proceedings with a view to obtaining the immediate return of the child.
15. According to the third text, the central authority designated under international and European instruments relating to the international abduction a child shall forward the return request referred to it to the public prosecutor attached to the tribunal judiciaire (Tribunal of First Instance) with territorial jurisdiction. Where the application concerns a child who has been removed or retained in France, the public prosecutor may, in particular, refer the matter to the competent court for it to order the interim measures provided for by law or initiate judicial proceedings to obtain the return of the child.
16. The right of access to a court is not absolute and is subject to limitations which, however, must not restrict or reduce a person's access in such a way or to such an extent as to impair the very essence of the right.
17. Thus, in its judgment of 5 November 2015 (No. 21444/11), Henrioud v. France, the European Court of Human Rights held that, in view of the consequences entailed by the inadmissibility of the father's appeal, relating essentially to the inadmissibility of the main appeal due to the negligence of the prosecutor, who had a central and special role in the procedure for the immediate return of the children on the basis of the Hague Convention, the father had been awarded a disproportionate burden that upset the fair balance between, on the one hand, the legitimate concern to ensure compliance with the formal conditions for referral to the courts and, on the other, the right of access to the court itself. The plaintiff had not been able to have the Cour de cassation (Court of Cassation) examine the main argument raised, namely that there was no element that could constitute an exception to the immediate return of the children as defined in article 13 (a) of the Hague Convention, whereas the procedure for the return of children may have very serious and delicate consequences for the persons concerned.
18. In order to declare the public prosecutor's appeal against the interim order of 31 July 2020 inadmissible, the ruling, after stating that it follows from the provisions of article 2 of the order of 20 May 2020 relating to electronic communications in civil matters before the cour d'appel (Court of Appeal), that electronic communications with the registry is mandatory for the public prosecutor when he is the main party, where he is authorised to submit the statement of appeal in paper format only if it cannot be transmitted electronically for causes not attributable to him, held that this was not the case here, as the statement of appeal had been formalised on 7 August 2020 in paper format only, and its electronic transmission to the court registry on the same day had failed due to an "error by the public prosecutor regarding the type of address accepted by the virtual private network used by lawyers".
19. In so ruling, by giving precedence in the immediate return proceedings brought by Mr [E] on the basis of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction to the principle that the public prosecutor, who had a central and special role in the matter, was obliged to submit his statement of appeal electronically, Mr [E]'s claims for the return of the children, as cross-appellant, were rendered inadmissible and the cour d'appel (Court of Appeal) was excessively formalistic and therefore violated the above-mentioned texts.

Operative part of the ruling

ON THESE GROUNDS, and without the need for judgment on the other plea, the Court:

QUASHES AND SETS ASIDE, in all its provisions, the ruling delivered by the cour d'appel (Court of Appeal) of Amiens between the parties on 3 June 2021;

Returns the case and the parties to the status existing prior to the said ruling and refers them to the cour d'appel (Court of Appeal) of Rouen;

Orders Ms [P] to pay the costs;

Pursuant to Article 700 of the Code of Civil Procedure, dismisses the claims;

at the request of the Prosecutor-General of the Cour de cassation (Court of Cassation), orders that this ruling be transcribed in the margin or following the quashed judgment.

Thus decided by the First Civil Chamber of the Cour de cassation (Court of Cassation) and prounced by the president at the public hearing on the fifth day of the month of April of the year two thousand and twenty-three.