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Separation and custody rights: does family law sufficiently protect children?



At a time when couples no longer last, where individualism and the search for personal emancipation take precedence, including within the family, has the law failed in its transformation by no longer sufficiently protecting the youngest? This is the thesis defended by the magistrate Édouard Durand, in a book of interviews which comes out this Friday, March 18 at Éditions du Seuil (1).

→ PORTRAIT. Édouard Durand, child protection for vocation

This judge for children who confesses ” activist “who is also co-president of the Independent Commission against Incest and Sexual Abuse of Children (Ciivise), notes that the law “no longer keep your word” : “Under the effect of a very liberal thought that always favors the law of the strongest, also for the sake of economy and a lack of understanding of people’s real life, we are making family law a field of ruins”, he complains.

An overly mechanical interpretation

Family law, he argues, would never have completely ceased to idealize the family. A denial of reality, harmful for the most fragile, children in mind, in that it erases in particular the problems that arise after separations. Justice “still often injunctions families to live in harmony, even at this critical moment”, emphasizes the magistrate.

It is, for example, very rare for a judge to authorize himself to suspend the parental authority of one of the parents, even though he has the right to do so. At issue: the concept “in the best interests of the child”, which serves as a compass for magistrates and is not clearly defined in the texts. Everyone therefore interprets it a little as they please, and many believe, sometimes mechanically, that it is necessarily good for a child to depend on the authority of both parents.

A two-step reform

Based on this observation, Édouard Durand proposes a reform in two stages. First of all: define the best interests of the child based on the conclusions of a consensus mission carried out in 2018: the interests of the child, the experts then concluded, under the leadership of Dr Marie- Paule Martin-Blanchais, consists in guaranteeing her needs, starting with her safety.

From there, the judges must be able to assess the real situation of each family much more finely than today, continues Édouard Durand, in terms of their ability to guarantee this need for security. For this, he proposes an analysis grid: is the family in agreement, or confronted with the absence of one of the parents, in conflict or violence? The answer to this question would result in an appropriate way of exercising parental authority: “joint when agreement is possible” at “exclusive in the event of absence of one of the parents or violence”.

“A form of throwback”

Would such a project be possible? Some jurists doubt that it is even understandable in a society where equality between parents has become a kind of ideal. “Judge Durand’s idea is magnificent”, greets Annick Batteur, professor of private law at the University of Caen. But it immediately warns of the magnitude of such a change in societal perspective and of the risk, on a legal level, of“a form of throwback”.

→ INVESTIGATION. Put an end to unpaid alimony

Affirming the primacy of the child amounts, in fact, to contesting, or at least to playing down, the equality between parents, which has slowly emerged in the law since the 1970s, and to ignoring a whole legal evolution, since abandoning the concept of “fatherly power” until today.

“At some point, this question will have to be settled: if it is easier to accept that the exercise of parental authority does not have to be joint, we will have to choose which of the two parents it will be necessary to entrust and create an inequality fact. Are we ready for this? Is it desirable? » The vast question at least has the merit of being asked.

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