Recognition and exequatur in France of the foreign decisions of adoption

 

Conditions of the recognition and exequatur in France of the foreign decision of adoption

 

The judgments given by a foreign court, relative with the state and the capacity of the people, have effect in France, independently of any declaration of exequatur, except if one prevails oneself about it for acts of material execution on the goods or coercion on the people.

 

It is a constant case law of the Cour de cassation.

 

A decision of adoption pronounced abroad has in theory full effect in France and can be transcribed directly on the registers of civil statute, at the time of which the officer of civil statute will check the international regularity of the decision of adoption.

 

The Cour de cassation thus decided in a July 11th, 1991 case that the plenary adoption of a child of foreign nationality by a judgment emanating from the legal authorities of the country of origin is automatically recognized in France without the exequatur.

 

The exequatur is however necessary for a simple adoptee in the event of a declaration in order to acquire French nationality (article 21-2 of the Civil code and article 16 of the decree n° 93-1362 of December 30th, 1993 relating to the declarations of nationality, with the decisions of naturalization, rehabilitation, loss, forfeiture and withdrawal of French nationality).

 

The conditions of the exequatur are then either resulting from a bilateral convention, or French case law, lastly in the Cornelissen case of February 20th, 2007.

 

The applicant with the exequatur of the judgment of adoption shall in this last case establish that the three following conditions are satisfied:

 

-      The indirect jurisdiction of the foreign judge founded on the fastening of the litigation to the seized judge.

 

-      Conformity with the legal and procedural international public order.

 

-      The absence of fraud to the law.

 

In any event, a decision of adoption pronounced abroad can have effect in France only if it is not contrary with the French public order.

 

Thus the Cour de cassation decided in a July 18th, 2000 case that a Polish judgment pronouncing an adoption, without any reference to the assent with the adoption of the father of the child, is contrary with the French public order and does not have a full effect in France.

 

Contrary, the Cour de cassation decided in a July 8th, 2010 case that the refusal of the exequatur founded on contrariety with the French international public order of the foreign decision supposes that this one comprises provisions which run up against essential principles of the French law. It is not the case of the decision which divides the parental authority between the mother and the adoptant of a child (convention of common life, known as domestic partnership : exequatur of a judgment of adoption pronounced by the Superior court of the County of Dekalb, State of Georgia, United States).

 

 

The Hague Convention

 

The exequatur is not necessary anymore for the decisions coming from the States having ratified the Hague Convention of May 29th, 1993 on the protection of the children and the cooperation as regards international adoption, under the only reserve of the public order.

 

The number of States having contracted this Convention is of 83 since the signature by Vietnam on December 7th, 2010.

 

The competent authority of the State where the adoption took place issues a certificate attesting the conformity of the adoption to the Convention.

 

 

Effects of the recognition of the foreign decision of adoption

 

Article 370-5 of the French Civil code, created by the law n° 2001-111 of February 6th, 2001, states concerning the effects of the adoption that " The foreign regularly pronounced adoption produces in France the effects of a plenary adoption if it breaks in a complete and irrevocable way the preexistent bond of filiations. Failing this, it produces the effects of a simple adoption. It can be converted into plenary adoption if the necessary assents were given expressly with full knowledge of the facts. "

 

 

The kafala

 

The French tribunals deliver decisions as regards recognition in France of the kafalas.

 

The Cour de cassation decided in a December 15th, 2010 case:

 

"After having raised that the rule of conflict of article 370-3, subparagraph 2, of the civil code returning to the personal law of the adoptee, was translation, in internal law, of the rules enacted by the Hague convention of May 29th, 1993 relating to the protection of the children and the cooperation in matter of international adoption which lays out, in particular in its article 4 a), that the adoption can be pronounced only if the child can be adopted, it is without ignoring its primary interest, nor to establish a difference of treatment into its family life, nor to compromise its integration in one family, that the judgment, noting that article 46 of the Algerian code of the family prohibited the adoption, while article 116 of this same code defines the kafala like a voluntary engagement to deal with the maintenance, the education and the protection of the child as a father for his son would do it, rejected the request in adoption, since the kafala, expressly recognized by article 20, subparagraph 3, of the New York convention of January 26th, 1990 relative with the rights of the child, preserves his superior interest. "