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France - Consideration of reports submitted by States parties under Article 44 of the Convention: Third and fourth periodic reports of States parties due in 2007 [2008] UNCRCSPR 5; CRC/C/FRA/4 (21 February 2008)
UNITED NATIONS
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CRC
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Convention on the Rights of the Child
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Distr. GENERAL
CRC/C/FRA/4 21 February
2008
ENGLISH Original: FRENCH
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COMMITTEE ON THE RIGHTS OF THE CHILD
CONSIDERATION
OF REPORTS SUBMITTED BY STATES PARTIES
UNDER ARTICLE 44 OF THE
CONVENTION
Third and fourth periodic reports of States Parties due in
2007
FRANCE *, **
[11
September 2007]
* In accordance with the information given to States Parties on
the preparation of their reports, this document has not been reviewed
by the
Editing Section before transmission to the translation services of the United
Nations.
** For the initial report submitted by the French Government, see
document CRC/C/3/Add.15 and Corr.1; for the Committee’s consideration
of
the report, see documents CRC/C/SR.139 to 141; and for its final observations,
see document CRC/C/15/Add.20; for the second periodic
report, see document
CRC/C/65/Add.2; for the Committee’s consideration of the report, see
documents CRC/C/SR.967 and 968; and
for its final observations, see document
CRC/C/15/Add.240.
GE.08-40766 (EXT)
CONTENTS
Paragraphs Page
I. GENERAL MEASURES OF IMPLEMENTATION 5 -
123 5
II. DEFINITION OF THE CHILD AND PROCEDURAL RIGHTS 124 - 143 25
III. GENERAL PRINCIPLES 144 - 197 28
IV. FREEDOMS AND CIVIL RIGHTS 198 - 271 36
V. FAMILY ENVIRONMENT AND ALTERNATIVE CARE 272 - 374 48
Paragraphs Page
VI. HEALTH AND WELFARE 375 - 509 63
VII. EDUCATION, LEISURE AND CULTURAL ACTIVITIES 510 - 538 85
VIII. SPECIFIC MEASURES FOR THE CARE OF MINORS 539 - 664 90
ANNEXES
I. The rights of the child in overseas France 112
II. The French approach to the issue of minorities 189
IV. Integrating young people into society and working life 201
V. Inter-country adoption 204
VI. Combating forced marriages 206
VII. Female sexual mutilation 208
VIII. The enforceable right to housing 211
IX. The function of adolescent centres 214
X. Minors who offend
217
- France
signed the Convention on the Rights of the Child (the Convention), adopted by
the General Assembly of the United Nations on
20 November 1989, on 26 January
1990 and ratified it without delay on 7 August 1990. In 1993, it submitted a
very detailed initial
report on follow-up to the Convention, which was
considered by the Committee on the Rights of the Child (the Committee) a year
later,
on 25 April 1994. A second periodic report, prepared in 2002, was
considered on 2 June 2004. On conclusion of this consideration,
the Committee
invited France, exceptionally, to present its third and fourth periodic reports
jointly in a single document not exceeding
120 pages by 5 September 2007.
- In
accordance with the general instructions on periodic reports, the object of this
new report is not to reiterate in its entirety
information already given, but to
set out developments in domestic law and practice since the second periodic
report and to bring
up to date the data previously submitted. This report also
contains information about action taken in respect of the Committee’s
final observations of 30 June 2004.
- In
this connection, the French Government draws the Committee’s attention to
the section of this report devoted, for the first
time, exclusively to measures
relating to the implementation of the Convention in the Overseas
Départements and
Territories.[1] In order to
respond to the Committee’s expectations as well as possible, and in the
interests of precision and coherence,
it seemed preferable to include this
information in a separate section, rather than to disperse it throughout the
body of the report.
Presenting it in this way has made it possible to adapt the
form of the report to cover the particular issues that arise in relation
to the
overseas populations and the information that it has been relevant and practical
to provide about them.
- This
report brings together contributions from the ministries concerned with the
application of the Convention. The Government has
also taken account of
observations from the Children’s Ombudsman, from the National Consultative
Commission for Human Rights
(CNCDH), which includes representatives of
non-governmental organizations and organizations and associations concerned with
general medical
practice and the defence of the rights of the child, and from
the High Authority to Combat Discrimination and Promote Equality (HALDE).
I. GENERAL MEASURES OF IMPLEMENTATION
A. IMPLEMENTATION OF THE CONVENTION
- When
it considered the second periodic report, the Committee repeated its invitation
to France to withdraw its reservation and its
two declarations
(paragraph 5).
- On
this point, the French Government can do no more than reiterate the explanations
given in its earlier reports. The lifting of the
reservation relating to article
30 (on minorities) and of the two declarations relating to articles 6 (right to
life) and 40 (right
to review in penal matters) is still not on the agenda, as
the legal reasons for them continue to apply.
- Turning
to the reservation relating to article 30, it should be remembered that the
French legal framework does not permit recognition
of collective rights
attaching to any group, defined by common origin, culture, language or belief.
The first article of the Constitution (formerly art. 2) provides that the
French Republic shall be indivisible and that it shall guarantee the equality
before the law
of all its citizens without distinction of origin, race or
religion.
- The
French Government also reminds the Committee that, at the time of its
consideration of France’s second periodic report,
the Children’s
Ombudsman had indicated that the maintenance of this reservation appeared
logical to her in the absence of recognition
of the concept of minorities by the
French Constitution, adding that “the risk of distractions driven by
the interests of particular communities that, in the present context, official
recognition of minorities
would create, justifies the maintenance of the
French authorities’
position”[2].
- This
legal framework does not by any means lead to denial of the cultural diversity
of France. In practice, everyone, whether or not
they recognize themselves as
belonging to a particular group or groups, is able to exercise their rights and
liberties free of discrimination
relating to his or her identity, relying on the
principle of equality before the law. The Committee will find annexed a note
illustrating
the French approach to the question of
minorities[3] and will find it
useful to be able to refer back to relevant developments which figured in
France’s last report on follow-up
to the International Covenant on Civil
and Political Rights. Another annex illustrates the willingness of public
authorities to take
account of specific cultural and social factors linked to
residence in an overseas
collectivity[4].
- The
two declarations on interpretation do not call into question the application of
the Convention in France. One is intended to deal
with an ambiguity in the
drafting of article 6: the declaration of an inherent right to life cannot be
interpreted as forbidding
recourse to voluntary interruption of pregnancy in the
circumstances provided for by the law. The other, relating to article 40,
is
very narrow in scope and no longer concerns anything more than a number of minor
offences within the competence of the Police
Court which can still not be
subject to appeal, and which are not subject, whatever the circumstances of the
case, to a penalty involving
loss of liberty.
- The
Committee asked the French Government to provide in its next report information
on the direct applicability of the Convention
(para. 7).
- For
a defendant to be able to claim to rely on a provision of a treaty, the rule
concerned must be recognized by national courts as
being directly applicable.
The Court of Cassation, which traditionally refused to recognize that the
Convention on the Rights of
the Child was directly applicable in domestic law,
has recently clearly altered its position. In two preliminary judgements of 18
May 2005, the interpretation of which has since been confirmed, (see, among
others, judgements of the First Civil Chamber of 14 June
2005, 13 July 2005 and
22 November 2005), the Court recognized the direct applicability of
articles 3, paragraph 1, and 12, paragraph
2, of the Convention,
thus marking a significant advance. For its part, the Conseil
d’État had already declared certain articles directly
applicable, according to whether the provisions of the Convention are or are not
self-implementing.
Abundant case-law exists on this point. To date, the
Conseil d’État has accepted the direct effect in relation to
individuals of articles 3, paragraph 1, 10, paragraph 2, 16 and 37(b)
and (c) of the
Convention. The Committee will find it useful to refer to the
Table attached as an Annex giving particulars of the body of case-law
handed
down by the Conseil d’État and the Court of Cassation on the
direct applicability of the
Convention[5].
- Finally,
the French Government reminds the Committee that the two optional protocols to
the Convention, one on the Sale of Children,
Child Prostitution and Child
Pornography, and the other the Involvement of Children in Armed Conflict, came
into force in France
on 5 March 2003. At the time of its ratification of this
second protocol, France made a binding declaration making it clear that
recruitment was confined to volunteers aged at least 17, with knowledge of the
rights and duties attaching to membership of the armed
forces, and that the
enlistment of candidates aged under 18 years was not valid except with the
consent of parents or legal guardians.
Initial monitoring reports on the
application of these protocols were put to the Committee in August
2006.
B. THE MECHANISMS IN PLACE TO SUPERVISE THE IMPLEMENTATION OF
THE CONVENTION
AND TO COORDINATE ACTION IN SUPPORT OF CHILDREN
1. Monitoring the implementation of the
Convention
1.1 Monitoring by the Government
- Monitoring
the coordination of ministerial measures for the implementation of the
Convention is still entrusted to the ministers responsible
for the family and
for the overseas territories as regards domestic measures, and to the minister
responsible for foreign affairs
as regards international
aspects[6]. These ministers act
in concert in order to give the necessary consistency, under the authority of
the Prime Minister, to the Government’s
actions.
1.2 Monitoring by Parliament
- Parliament
regularly intervenes on questions concerning the rights of the child, via
information reports or reports of inquiries,
and in this way helps to nurture a
wide national debate. Examples are:
- – the
report of the working group responsible for drawing lessons from the judicial
handling of the “d’Outreau affair”
(chaired by Mr Viout),
National Assembly, February 2005;
- – the
report of the working group on the Improvement of Procedures for the
Identification of Children in Danger (chaired by
Mr Nogrix), Senate, April
2005;
- – the
report of the working group on the Improvement of Provision for Minors in Care
(chaired by Mr de Broissia), Senate, July
2005;
- – a
report on behalf of the steering committee on the Family and the Rights of the
Child (chaired by Mr Bloche), National Assembly,
25 January 2006;
- – a
report on behalf of the Legal Affairs Committee on new forms of parenthood and
the law (chaired by Mr Hyest), Senate, 14
June 2006; and
- – a
report on behalf of the committee of inquiry into the Influence of Movements
Having the Character of a Sect and the Consequences
of their Practices for the
Physical and Mental Health of Minors (Mr Fenech and Mr Vuilque),
National Assembly, 12 December 2006.
- The
legislature further enhanced Parliament’s arrangements for monitoring the
implementation of the Convention by including
in Law No. 2007-293 of 5
March 2007 for the reform of child protection an obligation on the Government to
present the report provided
for in article 44(b) of the
Convention[7] to Parliament at
three-yearly intervals.
1.3 Monitoring by the Children’s Ombudsman
- The
Government reminds the Committee that this independent authority was created by
Law No. 2000-196 of 6 March 2000. It is responsible
for protecting and
promoting the rights of the child established by law or by an
“international commitment duly ratified or
approved by France”, such
as the Convention[8].
- In
2006, Mr s Dominique Versini, a member of the Conseil
d’État and former Minister of State for Combating Instability
and Exclusion, succeeded Mr s Claire Brisset, who had come to the end of
the
non-renewable appointment for six years as Children’s Ombudsman
provided for by the Law (Decree of 29 June 2006). Her nomination
provided an
opportunity to issue a reminder of the Ombudsman’s role (circular of 30
November 2006 on relations between the
Children’s Ombudsman and the
judiciary).
- Applications
to the Children’s Ombudsman concerned 2,400 minors in 2005. The reasons
for these references are very varied:
26% have to do with the consequences of
separations between parents and children, 15% with difficulties encountered by
foreign minors,
while 12% relate to minors in dispute with an educational
establishment.
- In
addition to an annual report on her activities, the Children’s Ombudsman
publishes thematic reports and opinions, which can
be accessed on her Internet
site (www.defenseurdesenfants.fr), proposing improvements in domestic
legislation and promoting the better
application of the Convention, for
example:
- – her
report on the child in new forms of parenting (2006);
- – the
assessment made by Mr s Claire Brisset on conclusion of her term of office
(Six Years of Service to Children and Adolescents,
April 2006);
- – opinions
on draft laws for the prevention of delinquency (September 2006) and for the
reform of child protection (October
2006);
- – her
opinion on the treatment of re-offenders: the adaptation to children’s
circumstances of the arrangements proposed
(October 2005);
- – her
opinion on the response of the criminal justice system to sexual acts committed
on children (June 2005); and
- – the
Ombudsman’s report to the Committee’s Geneva meeting (February 2004)
and her views on the meeting’s
recommendations to France (June
2004).
- It
should be mentioned here that the Law for the reform of child protection
referred to above has significantly widened the circumstances
in which cases can
be put to the Children’s Ombudsman. For the future, the Ombudsman can be
invoked equally by the family of
the minor, by the medical and social services
and by members of the
Parliament[9].
1.4 Role of the National Consultative Commission for Human
Rights (CNCDH)
- The
position of the CNCDH has been strengthened. Since the passing of Law
No. 2007-292 of 5 March 2007, it enjoys a statutory status which allows it
to follow
the Paris Principles, adopted on 20 December 1993 by a resolution of
the General Assembly of the United Nations, and to consolidate
its independence
as a national consultative body on human rights.
- This
Law specifies the composition of the CNCDH, and confirms the complete
independence of the Commission and of its members, whose appointment is
irrevocable. Among its members
are representatives of non-governmental
organizations active in the field of human rights, and suitably qualified
individuals, as
well as a member of the National Assembly, a Senator, the
Ombudsman of the Republic and a member of the Social and Economic Council.
All
members have voting rights.
- The
Commission frequently proposes reforms or gives its opinion on questions
concerning the rights of the child, either of its own
initiative or on matters
referred to it.
- For
example, it has pronounced on:
- – the
draft Law on the prevention of delinquency (opinion of 21 September 2006);
- – conditions
for the exercise of the right to asylum in France
(opinion of 29 June
2006);
- – the
draft Law for the reform of child protection (opinion of 29 June 2006);
- – health
protection, access to treatment and human rights
(study dated 19 January
2006);
- – the
draft law on equality of opportunity (note dated 4 January 2006);
- – arrangements
for taking evidence from child victims of abuse and/or sexual violence (opinion
of 22 September 2005);
- – child
protection on the Internet (opinion of 21 April 2005);
- – minors
in custody (study dated 16 December 2004);
- – violence
to children from the mass media and images (opinion of 30 April 2004);
- – the
draft decree on arrangements for selecting and remunerating ad-hoc
representatives of unaccompanied foreign minors (opinion
of 24 April 2003);
and
- – the
draft of the present report (note of 30 July 2007).
- The
Commission’s opinions and studies, and its annual report, can be accessed
on its Internet site (www.cncdh.fr).
2. Co-ordination of action in support of the
child
- The
cross-cutting nature of activities in support of the child calls for a large
number of players to take part in their implementation.
Within France’s
national territory as a whole, around 6,000 activities can be
identified affecting 200,000 children and young
people.
- Since
legislation in 1982 providing for decentralisation, the
départements have become more and more involved in family issues;
they have responsibility for childcare. Because of their proximity to the
children
they serve, their engagement has allowed the development of improved
arrangements for child welfare which are the first call on their
annual budget
– something in excess of €5 billion. The State, as the guarantor
both of consistency in provision and of
the fulfilment of France’s
international commitments, also makes a contribution to child welfare, notably
through its activities
in the fields of justice, health and national education.
- The
French child welfare system is based on tried and tested principles, but must
face up to new difficulties. These are partly linked
to changing family
behaviour and to developments in society, including social instability, but they
are linked also to the increased
responsibilities that the
départements have taken on and to the large number of players
involved. In this connection, when considering France’s second periodic
report,
the Committee showed particular concern about a lack of overall
co-ordination between the various players in the implementation of
the
Convention.
- Reinforcing
the co-ordination of public activities, operating at different levels, remains a
strong Government priority.
2.1 Interministerial co-ordination
- While
policies for promoting the interests of children revolve around the General
Councils of the départements, the Interministerial Taskforce on
the Family[10] remains the
most important point of contact at national level for players with a role in
relation to the family and children.
- This
interministerial body is responsible for preparing and monitoring policies on
the family, for leadership towards the ministries
responsible for
implementation, and for co-ordinating their activities. In this connection, it
makes the preparations each year for
the work of the Conference on the Family, a
forum for exchange between the Government and the whole range of other players,
allowing
major topical themes to be debated and the objects of family policy to
be determined. In addition, it plays a part in the preparation
of papers,
organizes the collection of information, and carries out, or arranges for others
to carry out, all of the studies necessary
for the achievement of the tasks
entrusted to it.
- The
Conference on the Family is an annual opportunity for listening, for analysis,
and for seeking consensus and overall consistency
in policy on the family, and
particularly in children’s policy. The Conference has given rise to many
specific measures, including
the foundation of an investment fund for the
under-sixes and of centres for adolescents, the provision of paternity leave and
of
entitlement to leave if a child is seriously ill, and for introducing
parent’s attendance allowance and a payment for childcare
for the
under-sixes.
- The
theme chosen for 2007 is the time spent by children, adolescents and their
families before and after school and outside school
(Wednesday, the weekend and
holidays). It has become evident that there is a need to strengthen the
effectiveness of the services
on offer in these areas. The two working groups
responsible for studying the needs and aspirations of families, identifying the
best
initiatives to take and drawing up proposals for achieving the right
interconnections between the worlds of school and leisure submitted
their
reports to the Minister for Health and Solidarity on 10 April 2007. These
proposals, which have been the subject of extensive
consultation, will form the
basis for the measures which will be presented at the next Conference.
- One
of the working groups has worked especially on the time that children and young
people spend “around school”. It has
concluded, among other things,
that the response of the public authorities to this question has been
insufficient in both quantitative
and qualitative terms in relation to needs,
and that better co-ordination is called for. Various proposals have been drawn
up to
respond to administrative difficulties, to show solidarity with
associations and provide them with better support, and to improve
monitoring of
the quality of service provided in the private sector.
- The
Interministerial Taskforce on the Family maintains many contacts with similar
groups from overseas, especially from Europe and
Asia. For example, Japan and
Korea, which are both very concerned with falling birth rates, have sought
exchanges on the themes of
the desire to have children and childcare for the
under-sixes, as well as on demographic questions. France had the opportunity to
present its policies on these matters at the “International Symposium on
New Policies to Combat Declining Birth Rates”
which took place in March
2007 in Tokyo. The representatives of the Bulgarian, Congolese and Uruguayan
Governments showed particular
interest in the organization of the annual
Conferences on the Family and in their themes. The Interministerial Taskforce on
the Family
also maintains a close collaboration with Quebec which has resulted
in the tabling of a joint project within the framework of the
61st Permanent
Commission for Cooperation between France and Quebec on the reconciliation of
work and the family, and a visit by
representatives of the Delegation to
Montréal and Québec at the end of January 2007 for meetings and
exchanges with
their partners. Another visit on this theme is in immediate
prospect for the spring of 2008.
2.2 Co-ordination at the level of the
département
- Several
arrangements have been put in place for co-ordinating the actions of public
authorities at the level of the département. This has become all
the more important as, with decentralization, the General Councils of the
départements have taken on an extensive role in the area of
children and the family.
- One
example is the networks put in place from March 1999 for gathering
parents’ views and providing them with support and assistance.
These
allow, when the need arises, the networking of activities designed to strengthen
parents’ competences and to restore
their confidence in their capacity to
fulfil their role in bringing up their children. These networks rely on a
partnership between
the various local institutions (public service
administrations, social security bodies, local authorities etc) and associations
active
in the field of parenting. In addition, activities aimed at maintaining
parent-child links in the event of the imprisonment of a
parent or parents are
co-financed with the Ministry of
Justice[11].
- Local
contracts for support with schooling supplement these arrangements by offering
families the option of having others ensure that
their children’s progress
in schoolwork is being individually monitored.
- The
contracts are a joint ministerial
responsibility[12] and are
supported by major partners which are public sector bodies or which are
responsible for delivering public
services,[13] as well as by
local authorities. These contracts comprise a co-financing arrangement for
activities which are principally carried
out by associations. These activities
allow assistance (support, help with homework and learning methods, cultural
facilities and
information for families) to be given to children (from the age
of six) and to young people (including lycée students) with their
schooling, either free of charge or in return for a token payment.
- To
guarantee a degree of consistency in these activities at the national level,
these associations are underpinned by a National Charter
for Educational Support
and by related guidance, both produced in 2001. Since 2006, those delivering the
arrangements also have family
dossiers available to support them in their
activities with families. The local contracts for support with schooling have a
national
steering committee, with input from the Interministerial Taskforce on
the Family, as well as committees for each département. An annual
circular sets out funding arrangements and themes for priority action.
- But
above all, it is the Law of 5 March 2007 for the reform of child protection,
referred to above, which has responded to the deep-seated
expectations of all
those involved in child protection by addressing difficulties in aligning the
work of the judicial authorities
and the General Councils and the quantitative
and qualitative differences that have been identified between
départements.
- For
the future, the Law clearly designates the President of the General Council,
acting with the representative of the State and the
judicial authorities, as the
central point for the implementation of child protection procedures. The Law
reorganizes relations between
the General Council and the judicial authorities.
In particular, the President of the General Council is to ensure the
co-ordination
of all the measures taken in the interests of a minor, including
those decided on by the Children’s Judge, and the criteria
for reference
to the State Prosecutor are redefined.
- Law
No. 2002-2 of 2 January 2002 for the renewal of social and socio-medical
action has allowed the creation of Departmental Childcare
Committees for the
Under-Sixes[14]. To date, two
thirds of départements have such Committees. Chaired by the
President of the General Council, the Committees include, in particular,
representatives of
the local authorities, of central government services, of the
Family Allowances Funds, of associations, and of managers and professionals
concerned with modes of childcare for young children, as well as representatives
of users and of specialist employers. The Committee
considers each
year:
- – a
report on needs for childcare for children under six and the state of supply,
prepared by the services of the General Council
and the Family Allowances
Fund;
- – a
report by the Prefect on the multi-annual schemes adopted by the municipalities
of the département for the development
of childcare for children under
six; and
- – experimental
programmes, on which the Committee receives information from the President of
the General Council and which it
ensures are monitored.
- In
addition, the Law of 5 March 2007 puts in place central arrangements for
collecting, handling and evaluating information giving
rise to concern for
minors in order both to ensure that data collection is effective and operates
identically over French territory
as a whole, and to reduce disparities between
départements. Also, each département is required to
put in place an Alerts and References Unit, providing a central point for
handling all information giving rise to concern
in relation to minors in danger
or at risk, and a Departmental Monitoring Service for Child Protection. This
service is responsible
for following children through, from the receipt of
information giving rise to concern and its evaluation, to the implementation
of
measures for the support of parents or the protection of their children; and for
keeping statistics on a consistent basis. The
work of the Departmental
Monitoring Services is aligned with that of the National Monitoring Service for
Children in Danger already
created by Law No. 2004-1 of 2 January 2004 on
childcare and child protection and which, with the national telephone hotline,
forms
part of the public interest grouping for “Children in Danger”
(previously called “Abused Children”).
- Supporting
guidance and technical documentation have been distributed to the General
Councils to support and accelerate the implementation
of the Law, and to ensure
that it is harmonized across the country as a whole. Five practice guides are
online at www.famille.gouv.fr
dealing with:
- – preventive
action in the interests of children and adolescents;
- – departmental
units for receiving, handling and evaluating information;
- – taking
action in the home for the protection of the child;
- – care
for minors and young adults; and
- – the
Departmental Monitoring Service for Child Protection.
- The
guides set out and explain the main provisions of the Law, the innovations it
introduces and their legal context, and set a number
of principles for action.
They are intended for those involved in the delivery of policies for children,
who contribute to the practical,
day-to-day implementation of arrangements for
child protection. In the first rank of these are professionals in social,
medico-social
and educational disciplines from the
départements’ services and establishments, professionals
from associations and those concerned with child protection within the legal
system. They
are addressed also to the services of the State, the
municipalities, the Family Allowances Funds, members of the liberal professions,
and, more widely, to anyone making a contribution to child protection, whether
on an individual or collective basis, or in a professional
or philanthropic
context.
- In
her opinion of 16 October 2006, the Children’s Ombudsman had commented
that this Law “has a place in the effective implementation of the
International Convention on the Rights of the Child and provides a satisfactory
response to several of the recommendations already made to France in June 2004
by the United Nations Committee on the Rights of the
Child”.
- The
CNCDH had commented, in its opinion of 29 June 2006, that this draft Law
“ contains significant improvements and to a large extent provides
the hoped-for response to the need for clarification”,
while at
the same time expressing its concerns, in particular, about the existence of
disparities in resources between different départements and
proposing the creation of a structure for the representation and defence of
children that would be independent of the General
Council (an ad hoc
administrator).
C. THE FRENCH CONTEXT
1. Changes in family models
1.1 Population growth
- Since
the last periodic report, the French population (in metropolitan France and the
Overseas Départements) has continued to grow. It grew from 59.6
million in 1995 to 63.4 million on 1 January 2007, an average rate of
growth of 5.3% per
year. It represents 13.6% of the population of the 25
countries of the European Union.
Migration[15] contributed no
more than a quarter to this demographic growth, whereas it accounts for more
than 80% of the growth in the European
Union as a whole. Thus France is still
one of those rare European countries where natural change accounts for the bulk
of the increase
in population.
- In
2006, France was the European country with the highest fecundity
index[16] : it is
estimated at 2 (compared with 1.943 in 2005), while average fecundity in Europe
was 1.52 children per woman in 2005. The
age of maternity has grown later
over recent decades, from 26.5 years in 1977 to 29.8 years in 2006. About
one woman in ten is childless.
The estimated proportion of women with four or
more children is similar.
- From
a sociological point of view, childless women are the category of women with the
highest number of professional and educational
qualifications, whether or not
they live in a couple. By contrast, men working in management and the
professions are, most usually,
parents. In addition, the later the first union
was formed, the greater the likelihood of childlessness, especially for women.
This
likelihood is also increased by the break-up of unions; with the scale of
the increase varying according to the length of time spent
living separately and
to gender: men who have entered quickly into another union are fathers as often
as those who have not experienced
break-up, which is not the case for women.
Finally, the likelihood of remaining childless varies according to number of
siblings:
women from large families more often have children of their own.
- The
French population is continuing to age: on 1 January 2007, 10.3 million people,
or 16.2% of the population, were aged 65 or over.
They represented less than 15%
in 1994. Conversely, 15.8 million inhabitants, or 25% of the population, were
under 20. In spite of
six consecutive years of high numbers of births, the
proportion of people in the youngest age groups continues to fall: in 1994,
26.7% of the population was aged under 20.
- Children
are being born more and more often to parents who are not married: this was the
case with 48.4% of births in 2005, compared
with 42.7% in 1999.
1.2 The Number of working women
- In
2005, women represented almost half of the working population in the 15-64 age
group (46.4%). Of women of working age, 63.8% are
working, compared with 74.5%
of men. In the opinion of many experts, the fact that two parents are in
employment is not contrary
to the interests of children :
- – working
by both parents, and mothers in particular, satisfies an economic need and adds
to the security of family income,
especially in cases where couples have
separated: it therefore contributes to the material well-being of the
children;
- – in
addition, professional activity satisfies a personal need on the part of the
parents for involvement and for social relations:
it therefore indirectly
favours the interests of children in terms of relationships, as they stand to
gain more from being raised
by parents who feel that they are living a full life
than by those who are confined, regardless of their own wishes, to the role
of
parent alone; and
- – the
recourse to a mode of childcare outside the nuclear family that is necessary
when both parents work satisfies the family’s
need for opening-out or
broadening its circle: it therefore promotes aptitudes in children for
socialization on a model which is
chosen and steered by their parents, and
which, within the constraints of what is practical, is adapted to the needs of
the individual.
- Today,
the majority of women do not stop work when they have children. It is between
the ages of 25 and 49, when they are assuming
the heaviest family
responsibilities, that the proportion of women who work has increased the most:
81.1% of women in this group
work, an increase of 22.5 percentage points since
1975.
1.3 The formation of unions
- Three
forms of family union exist alongside one another: marriage, cohabitation and
civil partnership (pacte civil de solidarité – PACS).
- 274,400
marriages were celebrated in 2006. This was the lowest number since 1995. The
drop occurs exclusively in marriages of men
and/or women who were previously
unmarried, whilst, since 2002, marriages of divorced men and women have started
to increase. Average
age at first marriage has gone up by 2.2 years over a
period of ten years. At present it is 31.1 years for men and 29.1 years for
women.
- In
2006, 18% of marriages involved at least one partner with foreign
nationality.
- The
rate of marriage among the previously unmarried is progressively declining in
direct proportion to the drop in the number of marriages
since 2000. It can be
estimated that 30% of men and 25% of women born in 1965 will still be unmarried
at age 50 and that numbers
remaining unmarried is likely to increase still
further in subsequent generations.
- 152,020
divorces were granted in 2005. The marked growth noted in 2003 (+8%) and 2004
(+5%), with 131,300 divorces granted that year,
is confirmed. The divorce rate
is now very nearly 45 divorces per 100 marriages, whereas, in 2000, it was still
40 divorces per 100
marriages.
- In
the summer of 2005, 263,000 civil partnerships have been entered into since
their creation by Law No. 99-944 of 15 November 1999,
while 33,600 have
been dissolved. During 2005, 60,500 new partnerships have been entered into. At
present no statistics are available
on the sex or age of partners and on the
year in which partnerships were entered into (as the competent authorities have
only recently
been authorized to collect this information).
- The
number of unmarried couples has increased from 1.5 million in 1990 to 2.4
million on 1 January 2006. Today they represent one
couple in six.
- Three-quarters
of single-parent homes – defined as households where a sole parent lives
without a partner but with his or her
child or children aged 25 or less –
have been formed as the result of a separation after a marriage or an informal
union. The
parents concerned are most often women (86%) with a slightly older
age profile than that of mothers living in a couple.
- The
number of so-called “re-constituted” families has continued to grow,
with large families disproportionately represented:
twice as many have four
children or more, compared with the norm, and 88% of them bring together the
children of more than one union.
- In
the re-constituted family, the additional elements include not only children,
but also the step-parent or “co-parent”.
Step-parents and
“co-parents” do not have a distinct legal status under current
French law, and they attract a priori
the status of a third party.
- On
average, taking together all ages and all procedural backgrounds –
divorce, post-divorce and children born outside marriage
– the residence
of the children is established with the mother in 78% of cases. This average
proportion varies according to
age, diminishing at a constant rate as the age of
the child increases. The proportion ranges from 95.1% of children aged less than
one year to 72% for adolescents of 15 or more.
- In
2005, the proportion of children alternating their place of residence is about
11%: it was about 10% at the end of 2003.
- The
Government draws the attention of the Committee to the parliamentary reports of
2006 referred to above, which explore these questions
at length. A day of public
hearings for the evaluation of Law No. 2002-305 of 4 March 2002 on parental
authority, concentrating especially
on alternating residence, took place in the
Senate on 23 May 2003. A report was drawn up by the Legal Affairs Committee and
the Social
Affairs Committee.
2. The consequences of progress in the life
sciences
- France
reminds the Committee that it has had legislation in the field of bioethics
since 1994, which has allowed it to play a path-finding
role at the
international level. In accordance with the amending clause adopted by the
legislature in 1994, France has maintained
its efforts to adapt the legislation
to the major scientific and technical development which have taken place since
then, thus responding to the recommendations of the Committee (para. 7).
- The
law was definitively adopted in July 2004 after long debate, resulting, after
constitutional validation, in Law No. 2004-800 of
6 August 2004 on
bioethics. This Law contains major alterations to the Civil Code, sometimes in
combination with alterations to the
Criminal Code.
- Among
the major innovations that this reform makes, the first to mention is the
introduction into French law of an express ban, backed
by criminal sanctions, on
the cloning of human beings. The basic prohibition, which bears on cloning for
reproductive purposes, is
located in the Civil
Code[17]. The effectiveness
of this prohibition is ensured by the introduction in the Criminal Code of a new
category of serious crime which
brings together crimes of reproductive cloning
and of eugenics (“crimes against the human
species”[18]),
punishable by thirty years’ imprisonment and a fine of €7.5 million.
What is known as therapeutic cloning is similarly
prohibited. This prohibition
does not, however, have the same basis or carry the same penalties, as it is
punishable as a major offence
(délit) and not as a serious crime
(crime). It is punishable by seven years’ imprisonment and a fine
of €100,000[19].
- Secondly,
research on the embryo and embryonic stem cells, conducted using surplus
embryos, has been made possible, but subject to
a strictly defined framework. In
fact, it is not envisaged that such research will be authorized unless it is
capable of allowing
“major therapeutic advances” which could
not be achieved through alternative methods of comparable effectiveness. An
Agency for Biomedicine[20]
has been created, the role of which is, in particular, to consider proposals for
embryo research from the point of view both of their
scientific relevance and of
their acceptability at the ethical level, and to decide whether or not to
authorize them.
- Thirdly,
the new Law has extended the scope for diagnosis prior to the implantation of
the embryo in order to make possible, under
certain rigorously defined
conditions, the birth of babies who are not only free of the genetic illness
which justified pre-implantation
diagnosis, but also have an HLA (human
histopathology) status which allows stem-cells to be collected from the
umbilical cord at
the time of birth for the treatment of a brother or sister who
suffers from the genetic disorder concerned.
- Fourthly,
significant changes have been made in the regime applying to the removal of
material from the bodies of living persons with
a view to organ donation. New
categories of donors related to the recipient are
permitted[21]. In the absence
of any alternative therapy, this means that minors have the possibility of
donating their bone marrow, with authorization
from those exercising parental
authority, to certain close relations other than their brothers and
sisters.
- Finally,
it should be mentioned that the carrying out of a paternity test, in the context
of legal proceedings, using material taken
from the body of a deceased person,
is subject to the express consent of the person concerned, given during his
lifetime.
- A
further revision of this legislation is planned for 2009.
3. Difficulties relating to the social integration and
employment of young people
- The
integration of young
people[22] into working life,
and in urban life more generally, has for several years been one of the most
important strands of employment policy
in France, pursued by putting in place
the 2004 Plan for Social Cohesion, reinforced in June 2005 by the Emergency Plan
for Employment.
France has also involved itself at the European level, as it
figures among the countries which took the initiative for the European
Youth
Pact, signed in 2005.
- The
presence in the labour market of young people aged between 15 and 29 has been
increasing slightly over the past ten years, following
a sharp drop in
connection with an extension of compulsory education. In 2005, half of 15 to 29
year-olds were in the labour market,
42% of them in employment and 9%
unemployed. The other half were engaged in study and not in work. Nearly a third
of wage-earners
aged 15 to 29 are in temporary employment, in fixed-term
contracts or in subsidized contracts. About 150,000 young people leave the
educational system each year without qualifications or with the occupational
diploma only, 60,000 of them without education beyond
secondary school level, or
the first year of the Certificate of Professional Aptitude (CAP) or of
the Diploma of Occupational Studies (BEP).
- Action
by the public authorities is aimed principally at strengthening arrangements for
getting young people into business employment,
improving the alignment between
training and employment and taking special action for young people in
difficulty. Details of these
measures are in Annex 4.
D. NEW MEASURES TO STRENGTHEN THE APPLICATION OF THE
CONVENTION
1. Domestic measures
1.1 Family law
- Family
law has undergone a profound change during the last five years. This vast
project of renewal, which has changed virtually the
whole of the first volume of
the Civil Code dealing with individuals, has allowed legal rules to be aligned
with developments in
the family unit. The principal aspects of family law have
been reformed in successive stages.
- The
object of Law No. 2004-439 of 26 May 2004 on divorce reform is to simplify
and accelerate procedures while adapting them to the
reality of the
circumstances of married people, reducing the length and intensity of the
child’s exposure to procedures for
the separation of his or her parents
and reinforcing the incentives, already provided for and given definitive form
by the Law of
4 March 2002 on parental authority, for parents to have recourse
to an Instrument of Family Mediation. This Law gives the Judge a
variety of tool
to help the couple to resolve conflicts, notably by allowing him or her, with
the agreement of the parents, to make
an order for family mediation measures. In
addition, in the event of violence which places the partner or the children in
danger,
the partner who is the victim may refer the issue to the Judge before
beginning divorce proceedings. In the interests of better protection
for the
partner and children, the expulsion of the perpetrator of the violence may then
be ordered.
- Order
No. 2005-759 of 4 July 2005 on the reform of filiation creates complete
equality of birth status by abolishing the concepts
of legitimate and natural
birth. It also simplifies arrangements for establishing filiation and harmonizes
legal procedures for making
it secure.
- Law
No. 2006-728 of 23 June 2006 on the reform of gifts and inheritance, which
came into force on 1 January 2007, allows estates to
be settled more quickly and
simply. In particular, it extends the scope for inter-vivos donations to
descendants of different degrees
(for example, making it possible to skip a
generation by making such donations for the benefit of grandchildren).
- Law
No. 2007-308 of 5 March 2007 on Legal Protection for Adults undertakes a
vast renewal of protection for the vulnerable. It also
makes a number of
modifications in arrangements for the guardianship of minors, notably by
abolishing the automatic devolution of
guardianship on the minor’s
antecedent relatives when there is no testamentary provision for guardianship,
thus allowing the
Family Council to give its opinion on the choice of guardian,
taking account of the interests of the child.
- The
Law of 5 March 2007 for the reform of child protection strengthens the right of
children to be heard in court proceedings.
- Law
No. 2007-297 of 5 March 2007 on the prevention of delinquency consolidates
the role of mayors in this area by introducing a new
institution[23], the Council
for the Rights and Duties of Families. Chaired by the mayor, its principal task
is to enter into dialogue with families,
to make recommendations to them and to
propose measures of assistance or support for parents in order to prevent
behaviour likely
to place the child in danger or to be disruptive to third
parties. The first Council for the Rights and Duties of Families was created
at
Castres (Tarn) on 22 May 2007.
1.2 The reform of arrangements for child protection
- The
Law of 5 March 2007 for the reform of child protection makes major improvements
to arrangements for the protection of children,
in part responding to the
recommendations of the Committee.
- The
adoption of the Law was prompted by the conclusions of a number of reports
since 2000 about the limitations of the French system,
as well as by the
“Appeal of the 100 for the Renewal of Child Protection”,
launched on 8 September 2005 by a number of well-known personalities with
the aim of provoking a great national debate on child protection.
- The
preparation of the Law by central government officials led to a wide
consultation involving, at national level, the organization
of 12 thematic
one-day events bringing together professionals, the General Councils of the
départements and experts; and, at the local level, the
organization, by the Presidents of the General Councils, of debates on local
arrangements,
on proposals for improvement and on good practice.
- The
Law puts the concept of child protection onto a legal
footing[24].
- The
Law contains a fundamental component on prevention. In this connection, it
places services for the protection of mothers and children
at the heart of
arrangements for child protection, provides for action to make it easier to
detect distress on the part of parents-to-be
in order to provide them with
support as quickly as possible, and strengthens the monitoring of
children’s health.
- The
Law includes a second component, the details of which are given above at
paragraph 42 et seq, which aims to clarify the roles and
responsibilities of the various parties involved and to improve pathways for the
circulation
of information, the visibility of child protection policy and the
quality of arrangements for its implementation.
- Arrangements
for children in care are also improved by the Law. In the case of children in
the care of the Children’s Social
Services, this is achieved especially
through help for the managers of child allowances, diversification of modes of
care, support
for care arrangements for children suffering from grave
behavioural disturbances and better care arrangements for children separated
from their parents. In addition, a number of measures aim to improve the
response of the judicial system to these situations, for
example by introducing
new types of care for minors (“day care” and “periodic
care”) which offer intermediate
facilities between open and custodial
arrangements.
- The
implementation of the Law is underpinned by practical texts dealing with the
fund for financing the reform, the content of medical
examinations, the nature
of the information to be exchanged between the Departmental Monitoring Services
and the National Monitoring
Service for Children at Risk, along with the
practical arrangements for these exchanges, training and the annual evaluation
report
on the child’s circumstances.
1.3 The reform of inter-country adoption
- In
accordance with its international undertakings, France has set a strict
framework for activity by intermediaries in the adoption
of children under the
age of fifteen. Law No. 2002-93 of 22 January 2002 on access to personal
origins has ended the ability of individuals
to act as intermediaries in
adoption and strengthened the regulation of organizations involved in this
activity. Any organization
wishing to act in relation to inter-country adoption
must previously have obtained permission to take part in such activity from
the
President of the General Council of the département in which it
envisages placing the minors concerned, as well as an authorisation issued by
the Minister for Foreign and European Affairs
on advice from the central
authority on inter-country adoption. Their task is to provide support for the
adoptive parents throughout
the adoption process and after the arrival of the
child. In this connection, these organizations are compulsorily required to
train
persons involved in providing support to families.
- The
reforms of 2005 were intended to strengthen further the framework for
inter-country adoption and for the intermediaries which
may be involved in the
process, by creating the French Adoption
Agency[25]
(www.agence-adoption.fr) and by clarifying the respective roles of public
sector authorities and participants in this field. In this connection
the
government refers the Committee to its initial report on follow-up to the
optional protocol to the Convention on the Sale of
Children, Child Prostitution
and Child Pornography (paragraph 42 et seq).
- Law
No. 2005-744 of 4 July 2005 has also strengthened provisions for support
after the arrival of the child in his or her new family.
- More
generally, the child and family can benefit from all the measures available for
support and assistance relating to child protection
-- and, since the Law of 5
March 2007, these expressly include a component on the prevention of
difficulties for parents in the exercise
of their responsibilities for their
children’s upbringing -- and from the measures put in place by voluntary
sector associations.
2. French action beyond France
- The
application of the Convention remains one of the major thrusts of French policy
in the fields of maternal and infant health, risk-free
maternity, nutrition and
social development.
- In
keeping with this, France has increased its share of contributions to the budget
of UNICEF: it has gone from 14th to 12th place among
donors between 2003 and 2005/2006. In two years, its contribution has increased
by almost 35%, to €14 million in
2006. These sums allow in particular the
funding of a bi-multilateral [sic] programme costing €700,000 for AIDS
orphans in
Africa, action to combat forced marriages of young girls (€2
million), and programmes on contraception and reproductive health,
as well as
measures directed at child soldiers (€200,000).
- France
supports several development co-operation projects directed to child protection.
- Project
2000-149, “Child Protection” (2003-2006), already mentioned
in the initial reports on follow-up to the two additional protocols to the
Convention, amounts to
€2.3 million and has allowed awareness-raising
activities in four areas in partnership with UNICEF: urban health, the sexual
exploitation of children, children in armed conflicts and female genital
mutilation.
- With
UNESCO and the French National Committee for UNESCO, France organized in Paris
on 23 November 2006 a “Roundtable to discuss Violence against Girls in
School[26]”. More
than two hundred participants, experts, teachers’ organizations,
representatives of non-governmental organizations and
delegations attended this
event. Mr Paulo Sérgio Pinheiro, the independent expert responsible
for the United Nations study
on violence to children, introduced the Roundtable
by presenting his report.
- The
growth of the AIDS pandemic is also a cause for concern, because it is
increasing the number of children who are orphans, or affected
by the virus, or
both. To address this, France and UNICEF decided, in the context of a
bi-multilateral Convention signed in 2004
involving a total of €2.1
million, on a three-year project supporting the strengthening of community care
arrangements for
AIDS orphans and other vulnerable children in the Republic of
South Africa, Cameroon and the Democratic Republic of the Congo. The
French
National Committee of UNICEF provides complementary finance of €420,000.
This bi-multilateral project reflects the thrust
of the new action plan
“A World Fit for Children”, adopted at New York in 2002 at
the last world summit for children. The project is structured around four
components:
- – support
for combating discrimination and promoting recognition of the rights of orphans;
- – strengthening
the capacity of those variously involved to take on the protection of orphans
and vulnerable children;
- – improving
access for orphans and vulnerable children to basic social services; and
- – the
monitoring, evaluation, documentation and making best use of the
results.
- The
French Government also supported the organization by the French committee of
UNICEF and the French Development Agency of a colloquy
on children and AIDS on
15 and 16 June 2006 in Paris. The programme particularly concerned children
aged under five, who are often
neglected in the implementation of programmes to
combat AIDS. At the colloquy, the Minister for Foreign Affairs referred to
France’s
innovatory action on this question. France is the second largest
contributor to the Global Fund to Fight AIDS, tuberculosis and malaria
(€300 million in 2006), and was the first country, in July 2006 to
put in place a solidarity tax on airline tickets for the
benefit of the
international drug purchase facility – UNITAID. More than forty countries
have joined France in this initiative,
which allows permanent programmes to be
financed for treatment of the pandemics of poverty, of which children are often
the first
victims.
- In
October 2006, UNITAID entered into partnership with the Clinton
Foundation’s Initiative against HIV/AIDS with the aim of
placing more than
100,000 new children under anti-retroviral treatment before the end of 2007 in
34 African and Asian countries.
This partnership envisages that UNITAID will
provide $34.8 million in 2006-2007 for treatments and diagnosis, in addition to
$12.8
million for paediatric anti-retroviral treatments through the Global
Fund’s sixth project bidding round. This determined policy
made it
possible for substantial reductions in the prices of drugs to be announced on 30
November 2006.
- The
major finance devoted by UNITAID since 2007 to paediatric treatments for
tuberculosis (in 20 countries to begin with) will contribute
to incentives for
manufacturers to develop anti-tubercular drugs suitable for children, especially
the under-fives. The Global Drug
Facility of the Stop TB Partnership, hosted by
the World Health Organization, will provide these treatments on UNITAID’s
account:
the objective is to finance the purchase of at least
600,000 treatments between now and 2010.
- France
also maintains a strong presence in the field of humanitarian emergencies,
through both its bilateral activities and its participation
in international
organizations. Following the earthquake in Pakistan in October 2005, it provided
assistance of €2.5 million
to UNICEF for its emergency vaccination
campaign for Pakistani children, sending 1.5 million doses of measles and
anti-tetanus vaccine.
A French enterprise came forward to supplement this
contribution by a gift of two million doses of vaccine. Similarly, €17.6
million were allocated to various international organizations to help the South
Asian countries ravaged by the tsunami of December
2004. Bilateral aid and aid
for reconstruction, each amounting to €24 million, were also allocated, as
well as loans at preferential
rates amounting to €300 million.
- Finally,
France engages in extremely active diplomacy on the question of child soldiers
at the United Nations Security Council, chairing
the UNSC working group
responsible for the monitoring of relevant resolutions. At the end of the
meeting held on 24 July 2006, France
decided to organize a conference in Paris
on 5 and 6 February 2007 in collaboration with UNICEF entitled “Free
Children from War". On this occasion, the 58 States attending adopted the
“Paris Commitments”. This declaration of policy sets out the
measures and the means that member states commit themselves to putting in place
to
give effective protection to children involved in armed conflicts and to help
them to reintegrate with their families and communities.
The States,
non-governmental organizations and international organizations present also
adopted a technical document, “The Paris Commitments”, which
bring up to date the “Cape Town Principles” produced
in 1997. This text updates best practice for preventing new recruitment,
and for preventing minors, and girls in particular, from joining armed
groups
and forces, and aims to get the States concerned to put an end to the impunity
often enjoyed by the perpetrators of violence
against children.
- In
addition, a young French expert has been attached since 1 June 2007 to work with
Mr s Coomaraswamy, the Special Representative
of the Secretary-General
of the United Nations for children in armed conflict. A second young French
expert will shortly be attached
to UNICEF’s Uganda office. Two posts of
Regional Attachés for Cooperation have also been created. The first post
will
be located at the French Embassy in Kinshasa and will cover the Great Lakes
area (the DRC, Burundi, Rwanda and Uganda). The second
is under discussion.
These two Attachés for Cooperation will be responsible for preparing and
implementing a project for the
beginning of 2008 for cooperation with a budget
of the order of two million Euros on the question of children in armed conflict.
- Within
the European Union, France adopted in December 2003, alongside other Member
States, an agreed position on children in armed
conflicts and an Action Plan
finalized in 2004.
E. MEASURES BY FRANCE TO IMPROVE AWARENESS OF THE RIGHTS OF
THE CHILD
- Several
measures taken by France address recommendations by the Committee (including
paragraphs 7, 15 and 62). Thanks to major work on information, education and
awareness-raising, the principles and provisions of the Convention are
increasingly
better known in France. The Government also regards it as important
to give a wide distribution to the Committee’s recommendations.
- This
report and France’s previous report, along with the Committee’s
recommendations, are available online on the website
of the Ministry for the
Family (www.famille.gouv.fr), so that they are accessible to any citizen wishing
to know about them. As mentioned
above, the Children’s Ombudsman’s
website also gives access to similar information (the Committee’s
recommendations
and the report of the Children’s Ombudsman on the
application of the Convention by France).
- Various
Government activities also contribute to disseminating the text of the
Convention to the public at large. In 2003, the Ministry
for the Family
published a poster presenting, in language that can be understood by the very
young, extracts from the rights of the
child that bear on situations encountered
in daily life in France. This poster was very successful, and a second poster,
entitled
“Our Children Have Rights” was designed in the same spirit.
It has been issued since 2006 to partner institutions and
associations who have
requested it and is on the Ministry’s website, with each
caption[27] accompanied by an
illustration. It explains that the complete text of the Convention can be
accessed on the websites of the Ministry
for the Family, the Ministry of Justice
and the Children’s Ombudsman.
- Finally,
and generally, the French Government is seeking to strengthen the training on
the rights of the child available to professionals
working with and for
children.
- For
example, the training and professional development of investigators dealing with
sexual offences involving minors have been further
developed and improved. Since
1989, 60 investigators a year in the National Police have been receiving
training on “Interviewing Children”. Since 2001, the National
Gendarmerie has also put specific training in place: a course on
“Interviewing Minors” has provided training for about 800
investigators to date.
- Similarly,
whilst there is no training on the rights of the child as such, these rights are
an integral part of the initial training
of students at the National College of
the Judiciary[28]. The main
articles of the Convention which have implications for procedure and
professional practice are covered in the teaching
material on professional
practice which is prepared by the law officers on the teaching staff and passed
to the trainees. The intranet
includes a piece on how the child protection
system and the Convention relate to one another.
- Each
year’s course also concentrates on a particular theme. In 2005, the course
members prepared a guide on professional practice
for dealing with sects and
child protection. During 2007, a conference on the emergence of a
distinctive legal status for children
will allow the Convention’s
beneficial effects to be explored as part of the College’s module on
“The Family”. The creation, within the College, of a
Department of Languages and Cultural Traditions will help to raise the 2008
course’s
awareness of comparative professional practice, and will help to
bring out overarching themes for which the Convention will be an
essential
support, including arrangements for the giving of evidence by children.
- The
National College of the Judiciary also offers judges an extensive prospectus of
in-service courses and continued training. Although
as yet there is no course
devoted exclusively to the theme of children’s rights, the subject is
addressed in a significant
number of the sessions and courses that the College
organizes. It is also thoroughly embedded in the training delivered by external
partners which is available to judges.
- Over
a number of years, these training activities have raised awareness and refined
skills relating to the giving of evidence by children
and to children’s
rights on the part, not only of large numbers of judges, but of others
also.
- Other
initiatives have given an opportunity to reconsider the training of staff
involved with the judicial protection of the young
in which not only State and
Departmental services, but also associations and researchers have been involved.
A seminar was held on
4 and 5 April 2006 at the National Centre for Training and
Study on the Judicial Protection of the Young on issues regarding educational
care for unaccompanied foreign minors. The seminar gave the opportunity for
in-depth work with an international dimension with professionals
on all aspects
of care arrangements for this
group.[29] It should lead to
initial and in-service training modules for educators and future Directors of
Service for the Judicial Protection
of the Young.
- Finally,
the Law of 5 March 2007 for the reform of child protection envisages the
development of training, both initial and in-service,
on the protection of
children at risk for all professionals working with and for children (doctors,
medical and paramedical personnel,
social workers, judges, teachers, members of
the National Police, Municipal Police Forces and the National Gendarmerie and
youth
welfare service[30]
managers).
II. DEFINITION OF THE CHILD AND PROCEDURAL RIGHTS
A. MINIMUM LEGAL AGE OF MARRIAGE
- The
Government draws the Committee’s attention to the reform introduced by Law
No. 2006-239 of 4 April 2006 on acts of violence
within the couple or
against minors, which gives effect to one of its recommendations
(paragraph 17).
- The
minimum legal age for marriage for women is now aligned with that for men,
rising from 15 to 18 years and ending a difference
that has existed since
1804[31]. Dispensations for
serious reasons may, however, be granted by the Public Prosecutor.
- This
Law contributes to strengthening the struggle against forced marriages. In
addition, it extends the time limit for applications
for the annulment of a
marriage on grounds of a defect in consent, bringing it into line with the
general law on actions for annulment
(five years). However, application for
annulment of a marriage is no longer possible if more than six months have
elapsed since one
or both spouses reached the age of majority, or if the wife is
a minor and has conceived before six months have
elapsed[32]. It is also
possible for the Prosecutor to bring an action for an annulment in the absence
of free consent by one or both
spouses[33].
- In
addition, France has just ratified the Convention on Consent to Marriage,
Minimum Age for Marriage and Registration of Marriages
(Law No. 2007-1163
of 1 August 2007).
B. MINIMUM AGE OF CRIMINAL RESPONSIBILITY
- In
2004, the Committee recommended to France the establishment of a minimum age of
criminal responsibility which was at the internationally
acceptable level and
below which the child was considered not to have the capacity to infringe the
criminal law (para. 17).
- The
French Government reminds the Committee that, whilst no age threshold is
explicitly fixed by French law for the criminal responsibility
of a minor, as
the judge assesses the minor’s capacity for understanding case by case,
minors under the age of 13 are liable
only to protective or cautionary measures.
- French
law imposes a strict framework of control on the nature of judicial responses
that courts for minors may apply. These responses
are adapted to the ages of the
minors concerned: tutelary measures for all ages, tutelary sanctions from the
age of ten and criminal
penalties from the age of 13. The aim set by the
legislature is to make, as a priority, a response of a tutelary
nature[34].
C. LEGAL AID
- The
present arrangements for legal aid, which follow from Law No. 91-647 of 10
July 1991 on legal aid, provide complete assurance
that minors will be defended
in civil or criminal proceedings. Since France’s last periodic report,
several improvements have
been made to these arrangements to allow minors wide
access to legal aid. Details of most of these were given in the initial report
sent to the Committee in
2006[35] on monitoring of the
additional protocol to the Convention dealing with the sale of children, child
prostitution and child pornography.
- When
legal aid is sought to secure assistance for a minor, article 5 of Law 91-647
provides that no account shall be taken of the
resources of the child’s
parents or of persons living in the home, once a divergence of interest exists
between them, having
regard to the subject of the legal proceedings. This is
very particularly relevant in the case of minors who are the victims of a
criminal offence committed by one of the members of the family unit. In these
circumstances, the Legal Aid Bureau may not take account
of parents’
resources which would exceed the upper limits provided by the Law.
- A
circular from the Ministry of Justice of 6 June 2003 invited Legal Aid Bureaux
to make an assessment of “conflict of interest” and
“divergence of interest” when dealing with the defence of
minors in criminal cases. In fact, in such instances, it is obligatory
that the minor must have the assistance of a lawyer, in accordance with the
provisions
of the Order of 2 February 1945 on young offenders. To give a legal
basis to the solution envisaged in the circular and ensure its
uniform
application across the whole of French territory, Order No. 2005-1526 of 8
December 2005 amended article 5 of the Law of
10 July 1991 providing that, when
a request is made for legal aid concerning assistance for a minor who is being
prosecuted for a
criminal offence, no further account shall be taken of the
resources of the parents or persons living in the minor’s home,
if they
demonstrate lack of interest in him or her.
- In
addition, the Law now guarantees better access to legal aid for asylum-seekers
who have entered French territory
unlawfully[36].
- Finally,
Decree No. 2007-1151 of 30 July 2007 on various legal aid provisions
extends the scope of legal aid to the appointment of
lawyers to assist minors
prosecuted before the Police Court or the Justice of the
Peace[37] for an offence
within the four lowest categories of summary offences. This reform, which is due
to enter into force in the second
half of 2007, will allow offenders who are
minors to be assured of the assistance of a lawyer, paid for by legal aid,
whatever the
gravity of the offence for which they are being prosecuted (minor
offence, major offence or serious crime).
- These
reforms constitute a response to recommendations by the Committee in 2004
(paragraph 59).
D. ACCESS TO RIGHTS
- A
new national helpline for victims was put in place in April 2005 to improve
information and give victims, including minors, better
access to their rights.
Simple to contact and easy to remember, “08VICTIMES” (08 842 846 37)
can be dialled at the cost
of a local call and has extended its opening hours (7
days, 0900 to 2100). It allows all victims to receive a hearing while having
their anonymity respected, to be given information about their rights, to be
directed to sources of psychological assistance on the
basis of a personal
assessment, and to be offered support with further steps that they need to take.
Like the national victim’s
assistance number from which it has taken over,
this telephone service is managed by the National Institute for Victim Support
and
Mediation, along with two other services, “Abduction Alert” and
“SOS Missing
Children[38]”.
- “119”,
the national telephone hotline for abused
children[39], remains by far
the most extensively used. This free and anonymous public service, which
operates 365 days a year and 24 hours a
day, takes on average 5,000 calls a
day. Its basic mission is to take calls from children who are victims of abuse
and from anyone
faced with situations of risk or danger concerning minors and to
pass information received to the appropriate services of the General
Councils of
the départements or, if necessary, directly to the Public
Prosecutor.
- A
number of measures have additionally been taken to give young people, and
especially young people in difficulty, the ability to
gain a better
understanding of their rights and to put them into effect.
- The
Ministry of Justice has devised an exhibition entitled “13-18:
Questions of Justice” aimed primarily at young secondary school
students and, more widely, at all minors aged over 13. Led by educators, the
exhibition
is held, not only in educational establishments, but also in Town
Halls and social centres. Various professionals (police, gendarmes,
lawyers,
judges, local authority youth services, family planning and mediators) can also
get involved, in the context of class projects
or when problems are encountered
by establishments and/or the public.
- By
bringing basic texts dealing with the rights of minors within the reach of
adolescents, the exhibition forms a part of a practical
policy for providing
information and preventing and combating violence. Its objectives, using a
variety of very realistic situations
from daily life, are to allow its target
audience to register that the law gives them rights and obligations, to
understand how judicial
institutions work, in the civil as well as the criminal
arena, and to be capable of taking advantage of legal means for gaining access
to justice.
- The
Departmental councils for access to rights for young people have doubled their
level of activity. It has been possible to network
the Councils’
operations, thanks to detailed research by local working groups to identify
partner organizations. The 85 Departmental
councils for access to rights that
currently exist have been provided with a methodology for action to promote
young people’s
access to their rights. The momentum has also been kept up
by the support, especially of a financial kind, that the State has provided
to
the National Network for Children’s and Young People’s Access to
Rights, which brings together associations and public
arrangements which promote
effective access by young people to their rights.
- The
actions undertaken may be either general in their scope or more targeted
(combating discrimination and violence, and the promotion
of equality between
boys and girls). They employ a variety of means: debates, forums, exhibitions,
conferences, screenings of documentaries
etc. Provision is also made for action
for the benefit of the individual (free, anonymous and confidential legal
consultations provided
by lawyers, psychologists or representatives of
associations). Finally, training sessions are organized for professionals in
contact
with young people.
III. GENERAL PRINCIPLES
A. NON-DISCRIMINATION (ARTICLE 2)
-
In accordance with the recommendations of the Committee (paragraphs 19 and 20),
the French Government has taken new measures to combat
all forms of
discrimination more effectively and to bring its legislation more closely into
line with the Convention.
1. The High Authority to Combat Discrimination and Promote
Equality (HALDE)
- HALDE,
created by Law No. 2004-1486 of 30 December 2004, was officially
inaugurated by the President of the Republic on 23 June 2005.
- In
2007, its budget is €11.6 million, of which €6.2 million are for
staff costs and €5.4 million for operations.
It has 73 staff, mainly
lawyers. Four regional taskforces (Nord-Pas de Calais,
Provence-Alpes-Côte-d’Azur, Martinique
and Réunion) have been
put in place. Its decision-making structure consists of a college of 11 members
appointed for an
irrevocable[40] and
non-renewable term of five years by the President of the Republic, the Prime
Minister, the Presidents of the Assemblies and the
Social and Economic Council,
as well as by the Vice-President of the Conseil d’État and
the President of the Court of Cassation. This college is assisted by a
consultative committee of 18, which allows it to involve
suitably qualified
individuals in its work.
- Apart
from its public information role (it has a Freephone information line, 08 1000
5000), the main tasks of this independent administrative
authority are dealing
with cases of discrimination, and promoting equality. It accounts for its
activities in an annual report, addressed
to the President of the Republic, the
Prime Minister and the Parliament. Its annual reports for 2005 and 2006 are
available on its
website (www.halde.fr).
- It
has competence in relation to discrimination of any kind, direct or indirect,
which is forbidden by the law or by an international
undertaking ratified by
France. It can be invoked directly by the victim, through a member of the
Parliament or a member of the European
Parliament or jointly by the victim and
an association. The authority may also take up a case of its own initiative, if
a victim
has been identified and does not object. Its ability to do this is
particularly important in relation to indirect discrimination.
- Without
encroaching on the prerogatives of the courts, HALDE can spotlight
discriminatory practices by helping victims to assemble material for their
cases, thanks to an extensive power of investigation
(to call for explanations,
to take evidence from individuals, to have access to documents, in certain cases
to carry out on-the-spot
verification and make requests to public authorities to
investigate, powers of mediation etc).
- Law
No. 2006-396 of 31 March 2006 on equality of opportunity broadened the
powers of HALDE, which is now able to call for the person responsible for
the actions concerned – provided that no prosecution has been instituted
– to make a payment in settlement of a dispute involving a fine which may
not exceed €3,000 for an individual and €15,000
for a legal entity,
over and above compensation for the victim. It also has the discretion to decide
to publish its adjudication
in the press.
- Alongside
this function, HALDE identifies and disseminates good practice and
lessons from experience in combating discrimination in all sectors and issues
opinions
and recommendations addressed to the Government, to the Parliament and
to the public authorities in order to combat discrimination,
to improve the
drafting of the law and to progress the principle of equality and the state of
French law in this area.
- HALDE
received 4,058 complaints in 2006 compared with 1,410 in 2005. Of these, 35%
concern origin, 19% health and disability and 5% gender.
The main areas of
discrimination in which it has been invoked are employment (43%), the regulation
and operation of public services
(22%) and access to private goods and services
(9%).
- The
general scope of its work protects minors from these various forms of
discrimination, on the same basis as adults. It has had
to address
discrimination of kinds that deprive minors of certain rights, such as the right
to protection and to the care necessary
for the minor’s well-being, dealt
with in Article 3(2) of the Convention, or the right to education, dealt with in
Article
28(1) of the Convention.
- When
a case concerning the refusal by a Family Allowances Fund to make family
allowance payments to a foreign national whose children
had entered French
territory otherwise than in accordance with the procedure for the entry of
family members was referred to it,
HALDE concluded that “the
requirement that foreign children must be legally resident in order for there to
be an entitlement to family benefits can
be described as
discriminatory” and asked the Minister for Social Security to bring
forward amendments to French legislation on this point (Decision
No. 2006-288
of 11 December
2006[41]). In addition, it
intervened in the case between the person concerned and the Family Allowances
Fund. In a judgement of 15 February
2007, the Social Security Tribunal of
Bobigny ruled that this intervention was valid, and fully endorsed the arguments
put forward
by HALDE, setting aside the application of the statutory
provisions concerned. The Family Allowances Fund gave effect to this judgement
and
made the appropriate payments to the person concerned.
- HALDE
has also had occasion to issue findings in the field of education, on matters
regarding differences of treatment in school canteens,
refusals to enrol
children in schools for reasons connected with the personal circumstances of
parents or refusals to enrol disabled
children.
- More
generally, HALDE has recently recommended to the Government that
“in conformity with Article 2(2) of the Convention on the Rights of the
Child,
it should introduce, as an integral part of the domestic legal system,
the provisions necessary for the child, in the sense of Article
2(2) of the
Convention, to be effectively protected against all forms of discrimination or
sanction prompted by the legal circumstances,
activities, beliefs or declared
opinions of his or her parents, legal representatives or family members”.
(Decision No. 2007-157
of 11 June 2007).
2. Ending discrimination in the law of filiation
- As
it committed itself to doing, the Government has eliminated the last elements of
discrimination from the French law of filiation.
- The
Law of 4 March 2002 on Parental Authority marked a new milestone in equality
between children, by writing the principle of the
equality of birth status into
the heading of Part VII of the first volume of the Civil Code
(“Filiation”): “All children whose filiation is
legally established shall have the same rights and the same duties in their
relations with
their father and mother. They shall be members of the family of
both parents.” (Article 310(1).)
- The
Order of 4 July 2005, referred to above, on reform of filiation, which was
adopted on the basis of Law No. 2004-21343 of 9 December
2004 for the
simplification of the law and came into force on 1 July 2006, put the finishing
touches to these developments by making
changes consequential on the
establishment by the legislature of complete equality between children, whatever
the circumstances of
their birth. The Order reorganizes Part VII of the first
Volume of the Civil Code, which ceases to be built around the distinction
between legitimate and natural filiation. Abandonment of these concepts gives
rise to a new conception of the law of filiation which
now distinguishes between
the non-contentious establishment of filiation and its establishment through
legal proceedings. This Order
has also harmonized methods for establishing
filiation, simplified the regime for legal proceedings and made filiation more
secure
by reducing the time limit set under the general law for challenge,
previously fixed at 30 years, to ten years.
3. Combating racism, anti-Semitism and
xenophobia
- Combating
racism, anti-Semitism and xenophobia has been an integral part of all areas of
French policy for many years. At the institutional
level, the public authorities
have supported the creation and development of organizations such as
HALDE and CNCDH, mentioned above, and the Interministerial
Committee for Combating Racism and
Anti-Semitism[42]. In
addition, French law protects liberty of expression and opinion (Law of 29 July
1881) and punishes offences more severely if
they have a racist or xenophobic
character. Specific measures have also been taken to promote equality of
opportunity in the labour
market and to combat violence at sporting events. Work
to counter racism, anti-Semitism and xenophobia is also being taken forward
with
the support of associations who are active in the field and by the promotion of
cultural events providing a vehicle for messages
promoting tolerance and respect
for difference.
- Since
action through education is the first defence against discriminatory practices,
the French Government gives particular attention
to activities in schools. This
is done through the distribution of teaching materials, publications and events
to promote prevention,
and through assistance in responding to acts of violence
at school.
- Decree
No. 2006-830 of 11 July 2006 sets out the knowledge and competences that
all pupils should have acquired by the end of compulsory
education. This
“common base” is structured around seven pillars, each defining
knowledge, capabilities and attitudes
linked with a particular subject area.
Combating racism and discrimination is specifically taught within two different
pillars.
- The
sixth pillar, devoted to social and civic competences, is organized around two
poles: “Living in Society” and “Preparing
for Life as a
Citizen”. This involves a programme on civic issues, comprising values,
knowledge, practices and behaviours.
The fifth pillar, entitled “Humanist
Culture”, has as its objective the acquisition by pupils of “the
sense of
continuity and rupture, of identity and otherness”. It includes
an approach, from a non-religious viewpoint, to human rights,
to the diversity
of civilizations, to societies and to religious practice in France, Europe and
the world.
- Beyond
the curriculum itself, there is a great deal of activity on prevention:
participation in classes by associations for combating
racism, publications and
the distribution of information on paper or via the Internet. For example, the
National Week for Education
against Racism in 2005 prompted 354,000 hits on the
website “Civic Programmes” (www.cidem.org) run by the association
Civics and Democracy. Demand for teaching materials has been particularly
intensive and is constantly growing: posters, leaflets,
booklets, magazines on
particular themes etc.
- Action
is also taken to raise the awareness of teaching staff and head teachers. A
suite of documents, among them the booklet “Acting against Racism and
Anti-Semitism” was sent in January 2006 to all general, technical and
professional lycées. This mailing was accompanied by a letter to
Principals from the Minister for Education reminding them of the need to combat
racism,
anti-Semitism and xenophobia and of the importance of educational work
in this area.
- Help
is also provided to enable those working on the ground to react rapidly to
racist incidents. In September 2006 an interministerial
circular, drafted
jointly with the Ministries of Justice and the Interior, was sent to schools,
accompanied by a note on “action to be taken in the event of breaches
at school”, and a practical guide. The note, which is addressed
particularly to Heads and management teams, carries a reminder that racism
is as
much an aggravating circumstance in the case of verbal as of physical acts of
violence.
- A
national unit, in place at the Ministry of Education since 2003, is responsible
for co-ordinating these actions. It collects information
on incidents,
particularly of a racist or anti-Semitic character, and provides assistance to
its network of contacts in the teaching
world. Its tasks also include training
and information for these contacts, especially through publications such as
“Taking Action against Racism and Anti-Semitism”,
“Citizenship through Education” and “Teaching Sensitive
Issues”. In addition, it remains the primary contact for associations:
in particular, it evaluates the teaching projects submitted by associations
wishing to become involved in schools on questions of racism and
discrimination
- The
thrust of these measures, taken as a whole, responds to the recommendations of
the Committee (paragraphs 19 and 20).
B. THE BEST INTERESTS OF THE CHILD (ARTICLE 40)
- Although
the concept of the best interests of the child has long been integral to French
family law, it has also been at the heart
of reforms in recent years modernizing
it, particularly in respect of parental authority, divorce and filiation. The
French legislature
has taken inspiration from both the letter and the spirit of
the Convention. Its legislation is also consistent with the case-law
of the
European Court of Human Rights on this point.
- Building
the concept into the Civil Code, the Law of 4 March 2002, quoted above, defined
parental authority as “a set of rights and duties having as its
objective the interests of the child” (article 371(1). The Law places
the child clearly at the centre of decisions which affect his or her conditions
of life, whether
they concern the exercise of parental authority, place of
residence or relations with third parties. It gives the Family Judge the
task of
ruling on issues submitted to the court “paying special attention to
safeguarding the interests of children who are minors”
(article 373(2)(6).
- Law
No. 2004-1 of 2 January 2004 on childcare and child protection added this
concept to the criteria which guide the Judge’s
decision when considering
measures of tutelary support. Article 375(1) of the Civil Code provides that
from now on, for minors in
danger, the Judge must “rule strictly on
consideration of the interests of the child”. Since Law
No. 2004-439 of 26 May 2004 on divorce, the same applies when an issue
arises about who should have possession of the family
home (article 285(1) of
the Civil Code[43]).
- The
Order of 4 July 2005 on the reform of filiation, quoted above, is guided by the
interests of the child, since it reaffirms the
principle of the equality of
birth status by abolishing the distinction between natural and legitimate birth,
and strengthens filiation
by simplifying and harmonizing the law on the subject.
- The
reform of child protection has provided a further opportunity to reaffirm that
the interests of the child constitute a fundamental
principle. In conformity
with the Convention, the above-mentioned Law of 5 March 2007 places the
interests of the child and respect
for his or her rights at the centre of French
arrangements.
- It
follows that the public authorities are justified in intervening only when the
interests of the child demand it. Article 112(4)
of the Code for Social Action
and the Family expressly provides that from now on not only “the
interests of the child” but also “account taken of his or her
fundamental, physical, intellectual and emotional needs, as well as respect for
his or her rights,
must guide all decisions concerning him or her.”
- A
number of provisions of the Civil Code have been amended in the same direction.
For example, “only the interests of the child”, and no longer
“serious considerations”, can from now on constitute an
obstacle to his or her right to personal relations with his or her antecedent
relatives (art. 371(4)
of the Civil Code). Similarly, the criterion under
Article 388(1) on the giving of evidence by children is now to be the
child’s
interest in being heard in any proceedings that affect him or
her[44].
- Similarly,
the concept of the interests of the child is left to the absolute discretion of
judges deciding cases on their merits and
is central to judicial decisions, for
example concerning ways in which parental authority is exercised, when the
question arises
of the place of residence of a child whose parents are
separated[45] or in cases
where parental authority is
delegated[46].
- Finally,
as mentioned above, the Court of Cassation, like the Conseil
d’Etat, now acknowledges the direct applicability of article 3(1) of
the Convention dealing with the primacy of the best interests of the
child.
C. RESPECT FOR THE OPINIONS OF THE CHILD (ARTICLE 12)
- In
principle, as the Government explained in its second periodic report, minors
lack legal capacity and may not exercise their rights
themselves before their
eighteenth birthday, when they acquire full civil capacity. The law does,
however, allow minors to act on
their own account for the purposes of daily life
and provides exceptions in particular circumstances, especially in health
matters,
when no communication is possible between minors and their parents.
- On
this point, there are two measures that respond to the Committee’s concern
that the confidentiality of healthcare should
be ensured when the best interests
of young people require it (paragraph 45).
- Law
No. 2002-303 of 4 March 2002 on patients’ rights and the quality of
the health system allows recourse to a medical procedure
or treatment without
the consent of the person or persons who hold parental authority when the minor
expressly and persistently opposes
the consultation of his or her parents in
order to maintain confidentiality in relation to his or her state of health. In
these circumstances,
the minor must nevertheless arrange to be assisted by an
adult of his or her choice.
- Similarly,
if a minor persistently opposes any consultation of her parents over a request
for voluntary termination of pregnancy,
the procedure can be carried out by the
doctor purely on the basis of the consent of the minor concerned, again provided
that she
arranges to be assisted when making her request by an adult of her
choice.
- More
generally, the Committee invited France to re-examine its legislation, promote
respect for the opinions of the child, and to
facilitate his or her
participation in all matters affecting his or her interests (paragraph 22).
- Several
measures tend in the direction of better account being taken of the views of
children in legal proceedings.
-
Taking account of the views of the child is naturally at the centre of
procedures for dealing with measures of tutelary assistance.
In fact, the child
is considered to be a party to the proceedings, which means that they fall to be
heard by the Children’s
Judge. This legitimate concern for the
child’s views has underpinned the whole of the reform of child protection
by the Law
of 5 March 2007 (see above).
- The
Law of 2 January 2002 for the renewal of social and socio-medical action created
seven tools whose essential purpose is to ensure
respect for the fundamental
rights, contained in the Charter of Rights and Liberties, that users of medical
and socio-medical establishments
are recognized as having. This Law expressly
requires stronger participation by calling for the views of children and parents
to
be heard when measures for tutelary care are being taken.
- France
has developed a body of rights for children that ensures that their opinion is
taken into consideration in contacts with non-judicial
bodies (Departmental
child protection services and establishments or families in which they are
placed).
- Various
provisions of the Code for Social Action and the Family are evidence of this,
especially those in Chapter III of Part 2 (“Children”) of
Volume II “Different Forms of Social Action and Assistance”),
which define the rights of families in their dealings with the
children’s social services.
- Article
L. 223(1) provides that anyone who benefits from a children’s social
welfare payment (including the child) shall be
informed by the family and child
protection services of the conditions on which the payment is made and of the
consequences of the
payment for the rights and obligations of the child and his
or her legal representative. It specifies that the child may be assisted
by the
person of his or her choice, whether or not they are a representative of an
association, in his or her dealings with the service.
The service may
nevertheless propose a one-to-one meeting in the interests of the
applicant.
- The
Article further provides that the Departmental services and those in parental
authority are to draw up a “Project Plan for
the Child”, which is to
specify the measures to be taken in relation to the child and his or her parents
and environment, along
with the role of the parents, targets and time-limits for
their achievement, and which is to designate the institution and the individual
responsible for ensuring the coherence and continuity of actions taken. This
document, signed jointly by the President of the General
Council of the
département, the legal representatives of the minor and a
representative from each of the organizations responsible for actions under the
Plan,
is brought to the minor’s attention.
- The
content and conclusions of the annual report made, after a multidisciplinary
assessment, on each child in care or subject to tutelary
measures, are also
brought to the attention of the minor, in a manner proportionate to his or her
age and maturity (art. L. 223(5)).
- The
children’s social services are to examine with the minor all decisions
concerning him or her without restriction and obtain
his or her views
(art. L. 223(4)). If the minor has been “declared to be of full
age” (formally declared to enjoy adult
legal standing), no decisions may
be made either in principle as to whether he or she should be taken into care by
the children’s
social services, or on practical arrangements for this,
without his or her agreement (art. L. 223(2)).
- Finally,
article L. 226(2)(2), which sets a framework for information-sharing by
professionals, subject to a confidentiality requirement,
explicitly states an
obligation to give the child prior notice of information to be exchanged,
depending on his or her age and maturity
and except where the information is
contrary to his or her interests.
- In
criminal cases, arrangements for hearing children have been improved. It has
been established, notably in one case which was the
subject of widespread media
attention, that the possibility that children may be manipulated calls for
arrangements for hearing them
that are more carefully designed than ever, and
for great care in the use of their evidence.
- In
this connection, CNCDH has reported positive results from units or
services in hospitals for interviewing minors who are victims of
crime[47]. A circular from
the Ministry of Justice dated 2 May 2005 recommended the development and the
general adoption of such facilities
for accommodating and interviewing minors.
The Taskforce for Victims[48]
also recognizes the usefulness of these arrangements.
- More
recently, Law No. 2007-291 of 5 March 2007 for strengthening the balance of
criminal procedure (which came into force on 1 July
2007) has strengthened the
arrangements under which interviews with minors who have been victims of sexual
offences[49] take place.
Subject to overriding practical difficulties which render recording impossible,
this Law removes the exceptions to the
principle of obligatory audiovisual
recording of interviews of such victims: this recording is compulsory for the
Public Prosecutor
and the Investigating Judge. Recording may be sound-only, if
the Public Prosecutor and the Investigating Judge so decide and the
interests of
the minor justify this[50].
The Law also provides that any minor who is the victim of an offence of this
kind must be assisted by a lawyer when he or she is
heard by the Investigating
Judge[51].
- In
civil proceedings, minors’ right to expression before the courts has been
strengthened by the Law of 5 March 2007 on Child
Protection (see above).
Inspired by the terms of Article 12 of the Convention, it amends Article 388(1)
(see above) of the Civil
Code on the hearing of children, under the terms of
which a minor capable of discernment may be heard in any proceedings which
concern
him or her, by the Judge or, where his or her interests require it, by
the person whom the Judge designates for this purpose. This
hearing is from now
on a right when the minor requests it, with no discretion on the part of the
Judge to set aside the
request[52].
- This
provision is aimed in particular at proceedings between parents over the manner
in which parental authority is exercised, proceedings
for the withdrawal of
parental authority in which a third party is involved, filiation actions,
proceedings concerning the guardianship
of minors and proceedings for adoption
and change of first name when the minor concerned is under 13 years of age (his
or her consent
being required beyond this age threshold).
IV. FREEDOMS AND CIVIL RIGHTS
A. NAME, NATIONALITY AND THE RIGHT TO KNOW ONE’S PARENTS
(ARTICLE 7)
-
On this subject, the French Government wishes to make the points below,
following the same sequence as in its second periodic report.
1. The establishment of filiation
- As
stated above, the Order of 4 July 2005 completes the reform of filiation begun
by the Law of 3 January 1972. The Law abolishes
the distinction between
legitimate and natural filiation, introducing a new conception of the law of
filiation based on the distinction
between maternal and paternal filiation,
simplifies the ways in which filiation may be established and harmonizes the
regime for
legal proceedings.
- Pursuant
to article 20, the Order of 4 July 2005 applies to children born before, as well
as after, its entry into force. Certain
exceptions are provided for, however,
modifying the principle of immediate application to accommodate situations where
cases are
already in
progress[53].
- Article
310(1) of the Civil Code is an introductory provision giving a generic list of
ways in which filiation can be established,
no longer distinguishing between
children born within and outside marriage: filiation can be established by the
authoritative effect
of the law, by voluntary recognition of maternity or
paternity, by a legal judgement or by the de facto possession of filiated status
confirmed in an affidavit.
1.1 The non-contentious establishment of filiation
- Filiation
is legally established by the effect of the law, voluntary recognition or de
facto possession of filiated status confirmed
by an affidavit.
- Filiation
is said to be established by the effect of the law when information in the birth
certificate is sufficient to prove the
connection without the need for further
steps by the parent or parents. Filiation is fully established legally in two
cases.
- For
the mother, it is established, applying new Article 311(25) of the Civil Code,
by her designation in the birth certificate. Thus
an unmarried mother no longer
needs to recognize the child to which she has given birth in order for its
filiation to be established.
This provision applies equally to children born
before the order came into force, subject to rulings by the court in decided
cases.
They may not, however, rely on it in relation to estates which have
already been settled, nor as regards nationality if they were
adults on the date
when the Order came into force. The application of this provision to children
born before 1 July 2006 has no effect
on their names.
- As
before, giving the mother’s name remains optional, and mothers and fathers
may ask not to be named in the child’s birth
certificate.
- Filiation
is established in relation to the mother’s husband by applying the
presumption of paternity of the husband, which
is preserved at article 312 of
the Civil Code: a child conceived or born during marriage has the husband for
its father. The extent
of this presumption and the legal exceptions to it are
unchanged (arts. 313 para. 1 and 314 of the Civil Code).
- When
filiation is not established by the effect of the law, it may be established by
an act of recognition of paternity or maternity,
before or after birth, before a
registrar or notary (Article 316 of the Civil Code). This is the principal
means of establishing
paternity outside marriage.
- Finally,
if an act of recognition is impossible (particularly in the event of the death
of a supposed parent), filiation can be established
on the basis of de facto
possession. The Order stipulates, by analogy with the law on rights of
established use, that filiation on
this basis must be certified in an affidavit
for its consequences to be relied on (this results from article 310(1), first
paragraph
and from article 310(3), first paragraph and article 317,
first paragraph). In future, the parents or the child must request a District
Court Judge to certify de facto possession of filiated status. The affidavit
that he or she delivers is sufficient evidence of filiation in the absence
of proof to the contrary (article 317 of the Civil Code).
- This
affidavit can also certify the prenatal possession of filiated status, in the
event of the death of the father during the pregnancy,
by proving the existence
of a sufficient body of facts showing that the deceased had behaved as the
child’s father-to-be.
- The
main innovation that the Order makes on this point is to set a time-limit for
requests for an affidavit. In order to avoid difficulties
associated with the
late establishment of de facto possession of filiated status (in relation to
evidence, or rights of inheritance),
an affidavit must from now on be applied
for within five years from the time when it is alleged that possession of
filiated status
ceased or from the death of the supposed father.
- In
addition, it is open to any interested party to take proceedings to establish
the de facto possession of filiated status within
the time limits set by new
article 321 of the Civil Code, namely ten years from the birth of the child,
although this time limit
is suspended for the benefit of the child during his or
her minority.
1.2 The judicial establishment of filiation
- When
filiation is not established in one of the ways already explained, it may be
established by a judgement given in proceedings
of one of the types provided for
in the third Chapter of the Civil Code.
- A
maternity suit (article 325 of the Civil Code) allows for a judicial declaration
of maternity when the child has neither the established
right to filiation nor
de facto possession of filiated status in relation to the mother, provided that
she did not request at the
time that the fact that she had given birth should
remain confidential. Where that is the case, the action must be brought by the
child, who is required to prove that he or she is the child to whom the alleged
mother gave birth (article 326 of the Civil Code).
In future, this action is the
same for children born in or outside marriage. It replaces actions for the
establishment of filiated
status (former article 323) and natural maternity
actions (former article 341), while remaining faithful to their spirit.
- Proceedings
of two kinds are available for establishing paternal filiation: paternity
suits, and suits to re-instate the effect of
the presumption of paternity.
- New
Article 327 of the Civil Code preserves the paternity suit, which was provided
for by former Article 340: this suit must be brought
by the child, who must
prove the paternity of the supposed father. Acceptance of proof is however no
longer subject to the existence
of grave presumptions and evidence (former
Article 310(1) paragraph 2).
- Maternity
and paternity suits must be brought by the child, represented during his or her
minority by his or her other parent or by
his or her guardian, as the case may
be. The suit is subject to the ten-year time limit under the ordinary law
(article 321 of the
Civil Code). The time limit is, however, suspended during
the minority of the child and permits him or her to bring proceedings up
to the
age of 28.
- The
scope for paternity suits has thus been widened considerably, as the time limit
has increased from two to ten years and evidential
requirements have been
liberalized.
- Suits
to re-instate the effect of the presumption of paternity (article 329 of the
Civil Code) provide for the paternity of the husband
to be re-instated by a
court judgement when it has been set aside by virtue of article 313,
para. 1, or of article 314. This suit
may be brought by the spouses,
separately or jointly, during the minority of the child. After majority, the
child alone may bring
a suit, within ten years.
- Finally,
the Order preserves actions for legitimation (article 330), but for the future
reduces the time limit under ordinary law
(provided for in article 321) to ten
years, starting from the alleged loss of status (this time limit being suspended
for the child
during his or her minority). The circumstances in which this
action may be brought include: when the time limit of five years for
applying
for an affidavit has expired, if the judge refuses to make such an affidavit or
if the applicant is not legally capable
of applying for an affidavit.
2. Change of name
- Law
No. 2002-304 of 4 March 2002 on surnames, applicable since 1 January 2005
to children born since that date, provides that in future:
“when the
filiation of a child is established in relation to both parents[...], the latter
shall choose the surname which applies
to him: either the father’s name,
or the mother’s name, or their two names together in the order chosen by
them within
the limit of one surname for each of them. In the absence of a joint
declaration, the child shall take the name of the father if
filiation has been
established jointly in relation to his parents (the case of parents who are
married or who have jointly recognized
the child before birth) or the name of
the parent in relation to whom filiation has first been established.”
- In
addition, the child may, as a matter of custom and practice, be known by the
double name of his or her parents, if they so decide.
Customary names are used
only in administrative and private documents, and not in the civil register.
They are not transmissible.
- After
receiving a surname at the time of birth, a child may change it in certain
restricted circumstances:
- – when
the filiation of a child born after 1 January 2005 has been established in
relation to the father after the birth has
been registered, the parents may by
joint declaration give to him or her either the name of the other parent, or a
name composed
of the names of each parent in an order of their choosing;
- – in case
of a change in his or her filiation (adoption or a judicial decision
establishing or modifying filiation); and
- – by an
administrative decision, at the request of the parents and if justified by a
legitimate reason (to put a name into a
French form, for example).
3. The right to know one’s parents
- In
2004 the Committee, taking note of the above-mentioned Law of 22 January 2002 on
access for adoptees and wards of the State to
their origins, recommended that
the French State take all necessary measures to ensure that the provisions of
Article 7 be fully
enforced, especially the right to know, as far as possible,
one’s parents (paragraph 24).
- French
law appears to be consistent with article 7 of the Convention on this point.
Without introducing an absolute right to know
the identity of birth parents (and
the mother in particular), the Law of 22 January 2002 provides a structure
within which confidentiality
over their identity can be reversed. Women who wish
to give birth anonymously are invited to leave their identity under seal along
with information for the child about their health and that of the father, the
child’s origins and the circumstances of his
or her birth. These items are
collected by the Departmental representatives of the National Council for Access
to Personal Origins
(CNAOP), who are specially trained and inform the
woman concerned about the importance for every person of knowing his or her
origins and
history. They also inform her that she is able at any time to
declare her identity or add to the information she has left.
- Many
women have taken these opportunities, thanks to this process of information and
support. In 2005 and 2006, more than half of
the 500 women who gave birth
anonymously agreed to leave their identity, either openly in the dossier of the
child – who will
thus have direct access to it – or under seal
– in which case, in the event of a request by the child for access, the
mediation of the National Council for Access to Personal Origins will be
necessary to obtain the mother’s consent to the lifting
of
confidentiality.
- The
National Council for Access to Personal Origins is composed of representatives
of the public services concerned, and of associations
of wards of the State,
women and adoptive parents, as well as qualified individuals. It has extensive
powers of investigation, when
formally requested, to seek birth parents who have
asked for their identity to be kept confidential. It must then, while respecting
their privacy, contact them to ask their agreement to disclose their identity to
the child. If the parent or parents refuse to reveal
their identity, only items
of information which do not identify them are passed to the child, and their
refusal is binding on the
child, after, as well as before, their decease.
- The
National Council also receives declarations by birth parents lifting
confidentiality. Since its creation in September 2002, it
has received 198
requests for the lifting of confidentiality, 195 of them from mothers and only 4
from fathers. In one case, confidentiality
was lifted jointly by the biological
parents. It has also received 70 declarations of identity made by an antecedent
relative, a
descendant or a privileged collateral relative (brother or sister or
descendant of a brother or sister) of one of the birth parents.
- At
31 March 2007, the National Council had opened 3,092 cases since its
inauguration. 1,900 cases had been closed for the following
reasons:
- – 685
after communicating the identity of the parent, 241 of them where
confidentiality did not apply, 223 after consent to
the lifting of
confidentiality and 221 where the birth parent had died;
- – 274
after a refusal to lift confidentiality; in these situations, exchanges of
correspondence, and even meetings, may still
take place with the National
Council acting as intermediary;
- – 860
where it was impossible to identify or find the parent; and
- – 81
withdrawals.
- Thus
French legislation does not appear to be in contravention of article 7 of the
Convention, which recognizes, as far as possible,
the right of the child to know
his or her parents. The European Court of Human Rights has ruled on this point,
in a judgement in
Odièvre v France dated 13 February 2003
that French law is consistent with article 8 of the European Convention on
Human Rights, which guarantees the right to private and
family life, in that it
achieves sufficient balance and proportionality between the interests at stake,
namely the protection of
the private life of the mother and the right of the
child to know his or her origins. It noted in particular that the Law of January
22 2002 arranged for confidentiality to be reversible and facilitated research
into biological origins by setting up a National Council
for Access to Personal
Origins, an independent body composed of law officers, representatives of
associations and professionals.
It took account also of the concern of the
French legislature to protect the health of the mother and child during
pregnancy and
birth and to avoid clandestine abortions and infant
“dumping”.
- One
change has been made to this legislation, by the Law referred to above of 5
March 2007 for the reform of child protection, in
order to confine the right to
refer a case to the National Council to the child itself. The original text
provided that, during the
minority of the child, a request for access to origins
could be made to the National Council by the child’s legal representative
or representatives, as well as by the child with their agreement. The adoptive
parents of the child were thus able to contact the
National Council in their own
right, without the child being informed of the approach, still less having given
consent to it. From
now on, only the child may act during his or her minority,
with the proviso that he or she has reached the age of discretion and
that his
or her legal representatives have expressed their agreement.
- At
31 March 2007, only 3% of the 3,092 requests that have been registered concern
minors.
B. ACCESS TO THE MEDIA AND THE PROTECTION OF
CHILDREN
(ARTICLES 17 AND 18)
- In
accordance with the principles stated in the Convention, and in particular
articles 13, 17 and 18, and with recommendations made
by the Committee
(paragraph 28), France is developing policies which seek the right
balance in this area. On the one hand, policies aim to encourage greater freedom
for children through wide access to the media and information. On the other
hand, they aim to provide a proper framework for children’s
access to the
tools of communication, and to hold the various participants – and parents
– duly responsible in relation
to the information disseminated via the
media.
- First,
the Government wishes to state that the commission responsible for the
supervision and control of publications for the
young[54], mentioned in its
previous periodic report, is doing important work through dialogue with
publishers that allows certain practices
which could have an impact on the
sensitivities of minors to be regulated. In 2006, it received 3,310 French
periodicals and 3,362
other French works, 364 foreign works and 383 publications
of all kinds. It recommended that 75 publications should be banned, entered
into
consensual procedures with 10 publishers and requested criminal
prosecutions in five cases.
- Further,
in applying article 9 of the Code for the Cinematic
Industry[55], the Minister of
Culture issues a certificate after receiving the advice of the Commission for
Film Classification. The plenary assembly
has 28 members divided into four
colleges: public authorities, cinema professionals, young members of the public
and experts. The
Commission seeks to protect children and adolescents from
undesirable impacts that certain films or trailers could have on their
personality or development. It gives an opinion recommending authorization for
“all audiences” or prohibition in respect of an age category
(under 12, under 16 or under 18.) It may add a warning to the viewer on the
content or on particular characteristics of the work.
- 1,087
films and trailers were classified during 2006-2007. Of these, 87.3% were
classified “all audiences”, 5.3% “all
audiences” with a warning, 43% “under 12”, 1%
“under 12” with a warning 1.8% “under 16”,
0.2% “under 16” with a warning and 0.1% “under
18”.
- In
recent years the rapid development of information and communication technologies
has led to marked progress in the applications
available in daily and
professional life. They have progressively established themselves as an
indispensible tool for giving families
access to information and improving the
quality, effectiveness and accessibility of the public services on offer to
them. This burgeoning
has called, in parallel, for active policies to educate
the public, raise their awareness and alert them to their responsibilities,
in
order to prevent the abuses that could result for children and allow them to use
the Internet more safely. These measures are
set out below.
1. Information for families by Internet
- In
2006, the Interministerial Taskforce on the Family, in partnership with the
Caisse des Dépôts et Consignations and Documentation
Française, which is the provider of the French public administration
portal (www.service-public.fr), created an Internet portal
(www.point-infofamille.fr)
designed to support and guide families in their
dealings with the public services and with associations. The site also has a
wider
information function for sector professionals and the general public
through giving information about national and local arrangements
and through
links to other Internet sites (to the sites of the main partners, to each home
page for families designated “Family Info Point”, and to
networks for supporting, assisting and giving a say to parents). Nearly three
hundred local sites existed in 2006.
- The
portal and the local sites appear together on the “Local Public
Service” platform (www.servicepubliclocal.net), run by the Caisse
des Dépôts et Consignations [a State institution with functions
including the financing of certain public services], which allows the
various local participants to make all their information mutually available and
to provide for automatic linkage
between local and national information in order
to improve service to users. This allows families and professionals access to
common
information, which has been validated and is up-to-date, wherever on
French territory they may live. This platform also gives access
to the
documentation resources of Documentation Française.
2. Raising awareness and educating the general public about
the media
- Faced
with the rapid development and increasingly common use of information and
communication technologies, the Government has embarked
on a special effort to
help people to access them and to use them competently. This complements the
arrangements already in place
for other media, as set out in the
Government’s second periodic report on follow-up to the Convention.
Training for pupils and teachers
- The
Ministry of Education plays the foremost part in this effort, aiming to provide
pupils with training which, when completed, will
equip them to make sensible use
of information and communication technologies. This policy has meant, not only
more equipment in
schools and educational establishments, but also the
introduction of specific training courses.
- Applying
the principle of equality of opportunity, an occupational diploma in information
technology and the Internet has been created
for primary and secondary
schoolchildren and trainees. Its aims are to introduce them to the technical
environment of multimedia,
show them the opportunities offered by computerized
data processing and its limitations, develop their critical faculties as young
Internet users and identify the social and legal constraints which apply to the
use of these technologies. Students’ competences
are evaluated in the
following areas: understanding of information technology in the workplace,
ability to take a responsible attitude,
the ability to create, produce, process
and use data and the ability to research and document issues, as well as to
engage in exchange
and communication. This diploma, which is validated in phases
throughout school life, provides evidence that pupils have mastered
multimedia
tools and the Internet. It is currently being introduced more widely.
- In
parallel, various measures have been taken requiring teachers to integrate
information and communication technologies into the
teaching of other subjects
and into teaching practices. For example, the Information Technology and
Internet Certificate is designed
for teachers at all levels, from infants to
university, whatever their discipline. Taught by university teacher training
institutes
as part of their responsibility both for initial and continuing
training, it accredits teachers’ grasp of information technology
tools and
networks. They should be able to use these technologies as part of their
training techniques and, while respecting ethical
constraints, to teach them and
to validate the competences in them that pupils have gained.
Awareness-raising on risks from the Internet and the use of
mobile telephones
- For
several years, France has sought to make the protection of minors on the
Internet a major plank of its family policy.
- As
explained in France’s initial report submitted to the Committee last year
on follow-up to the optional Protocol to the Convention
dealing with the sale of
children, child prostitution and child pornography, three sets of measures were
taken following the 2005
Conference on the Family. These were: introducing
free, effective and systematized parental control software for families
connected
to the Internet, the creation of a “Family”
kitemark and a campaign to raise the general public’s awareness of
child protection on the Internet broadcast on TF1 and M6
in May and
June 2006. This campaign received an approval rating of 96% among parents
in homes with an Internet
connection[56].
- Various
working groups, with representation from the Interministerial Taskforce on the
Family, are also working on problems in this
area. “Child of the Net
3” (Forum on Internet Rights) is analysing questions connected with
the framework of article 227(24) of the Criminal
Code[57], the establishment
of whitelists and blacklists and quality standards for parental control
software. The purpose of “Online Video Games and Child
Protection” (Forum on Internet Rights) is to propose pathways for
improving the practice of these leisure activities by minors. At the request
of
the Minister responsible for the family, “Whitelisting”
(taskforce on Internet use) is a group which has the task of defining a
statement of detailed criteria for the production of the
whitelists used within
the parental control software offered to families by the Internet service
providers. France is also a supporter
of projects at the European level for
child safety on the Internet, in response to proposals by the European
Commission in 2007 in
the context of the “Safer Internet”
programme.
- Many
guides and awareness-raising publications have also been issued by those
concerned – associations, the industry and the
public authorities (the
Ministries for the Family, Education and Youth, Sport and the Voluntary Sector).
- The
need to be aware of risks on the Internet is one of the commonest themes. In
2007, two advisory guides to good practice were published:
“What to do
about your child and the Internet” (produced by the Federation of
Parents of Pupils in State Education in partnership with Microsoft), and The
Internet and Me”, a quiz with ten questions for adolescents produced
by the forum on rights on the Internet, the magazine Okapi and the
Interministerial
Taskforce on the Family). The new, free guide for parents,
“Your Child and the Mobile Telephone”, was fully updated at
the beginning of 2007 by the French Association of Mobile Phone Operators
(AFOM) in partnership with the Ministry for the Family. It is mailed free
to anyone who requests it on the Association’s Internet
site
(www.afom.fr). More than 160,000 copies of the previous edition published in
2005 were distributed.
- Finally,
the Interministerial Taskforce on the Family and AFOM have carried out a
radio campaign to raise awareness of the dangers involved in Internet surfing by
children using mobile phones.
This national campaign, launched on RTL and France
Info, will have been broadcast from June to November 2007.
3. Holding those involved responsible
Radio
- In
2003, the Médiamétrie institute assessed the number
of adolescents between the ages of 13 and 17 listening at 9pm to so-called
“Youth Radio”
(NRJ, Fun Radio, Skyrock or Europe 2). The audience
for these four stations remains very high until 11pm (500,000 young listeners).
To promote more responsible behaviour by radio broadcasters, the Higher Council
for the Audiovisual Sector adopted a discussion document
on 10 February 2004 on
the obligations, regulatory and otherwise, of radio programmes. The document was
intended, among other things,
to encourage broadcasters not to transmit before
10:30pm statements that could jar the sensitivities of listeners aged under 16.
The intention is not to call interactive and open-access broadcasting into
question in any general sense, but rather to avoid verbal
asides of a
pornographic character and intrusion into listeners’ private lives.
Pornographic and extremely violent programmes
are banned altogether, given the
absence of any technical means for sound radio broadcasting services to be sure
that only adults
can access them.
Internet
- Measures
concerning the Internet are as follows.
- On
16 November 200, as mentioned above, the Ministry responsible for the family and
the Internet service providers signed an agreement
to produce and distribute a
parental control software which was effective, free and offered by providers who
were signatories as
part of their
systems[58] to all
subscribers. This software is currently being distributed. Three profiles for
surfing are offered to parents: “adult”, “adolescent”
and “child”. Each profile is accompanied by an
appropriate code. The “child” profile allows navigation to a
whitelist of sites (free of content which is unsuitable for a young audience).
The “adolescent” profile allows access to the whole of the
net, with the exception of adults-only and illegal sites, listed on a blacklist.
The “adult” profile has no restrictions on navigation.
- Parental
control softwares are evaluated every three months by
“e-enfance” (an association) in accordance with an
independent protocol. The evaluation covers, not only filtering performance, but
also how
easy the software is to activate and use. Results are published in the
press and on www.famille.gouv.fr and www.e-enfance.org. A
monitoring committee
for this arrangement meets every three months, chaired by the minister with
responsibility for the family. It
brings the signatories to the agreement
together with representatives of associations for child protection.
- In
addition, the development of a “family” kitemark or
“seal of approval” is in train. The statement of criteria prepared
by the Forum on Internet rights at the
request of the minister responsible for
the family contains 78 criteria defining ethicality and responsible practice by
professionals.
A commission on standards for good practice and regulation on the
Internet should shortly be created which will be capable of administering
this
seal of approval.
- So
that all those involved, and especially parents, can be better informed, and to
increase the pressure on professionals to behave
responsibly, the Law of 5 March
2007 on the prevention of delinquency, mentioned above, reinforces labelling
requirements for the
packaging of electronic products, whether analog or
digital, identifying content of a pornographic character by labelling it
“supply to minors
prohibited”[59]
Mobile Telephones
- In
2006, 80% of 12 to 17 year-olds used a mobile phone, of whom 23% used their
mobile to consult Internet sites, compared with 3%
of 40 to 59
year-olds[60]. Faced with the
growth of mobile telephony, arrangements have been put in place analogous to
those for the Internet in order to provide
better protection for minors by
increasing pressures on the players concerned to behave responsibly. On 10
January 200, the Ministry
for the Family and the mobile phone operators, under
the aegis of the French Association of Mobile Phone
Operators,[61] signed a
charter of commitments on mobile multimedia content. An assessment of the
application of this charter one year on from its
signature is positive. The
operators have lived up to their undertakings and three new operators have
signed the charter (Auchan
Telecom, Carrefour Mobile and Ten). In addition, a
very large increase in the number of parental controls activated was recorded
in
December 2006 (a more than twenty-sixfold increase in two months).
C. FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION (ARTICLE
14)
- When
it examined France’s last report, the Committee expressed concern about
the entry into force of Law No. 2004-228 of 15
March 2004 setting a
framework, applying the principle of secularism, for the wearing in State
primary, secondary schools and lycées of symbols or dress
indicating a religious affiliation (paras. 25 et 26).
- The
Government recalls that this
Law[62] was adopted to
guarantee observance of the constitutional principle of secularism, ensure the
neutrality of teaching in public institutions
and, whilst respecting pluralism
and the liberty of others, and without prejudicing teaching activities and
programmes and the obligation
for regular school attendance, to address risks of
disorder in school establishments.
- It
does not stigmatize any particular religion, as that would be a source of
discrimination, and does not lay down a list of prohibited
religious signs. The
prohibition under the law is not a systematic prohibition. The circular applying
it merely gives examples of
signs and garments that are banned, such as
“the Islamic veil, however it is designated, the kippa or a cross that
is clearly excessive in size”. “Discreet religious
signs”, such as “accessories and garments habitually worn by
pupils without religious significance” are, however, permitted.
- By
that law, the legislature was seeking to prioritize dialogue and education. It
takes a largely pragmatic approach and assigns those
working in the field
responsibility for securing observance of the law and penalizing any
infringement of it. For example, it sets
in place a preliminary stage of
dialogue with a pupil in breach of the law, which must be arranged and held by
the head of the establishment
in conjunction with the management team and the
education teams, followed, if need be, by a disciplinary procedure. If the
decision
of the Disciplinary Council is to exclude, the educational authorities
are to examine with the pupil and his or her parents the conditions
in which he
or she will pursue his or her schooling.
- In
accordance with the provisions of the Law, an evaluation of its implementation
was undertaken a year after entry into force, in
July 2005. The assessment is
wholly positive and allegations suggesting an increase in discrimination,
especially based on religion,
have been refuted by the facts.
- In
fact, in the course of the school year 2004-2005, only 639 pupils displayed
visible indications of a religious affiliation compared
with about 1,500 cases
recorded in 2003-2004. Only 39 pupils, three of them boys, were definitively
excluded, with a solution being
found in other cases by dialogue. At the
beginning of the school year 2005-2006, the cases – fewer than ten –
which could
have led to litigation have been settled through consultation with
those concerned and their families. Out of four cases in which
Sikh
lycée students were refusing to remove their turbans, it has not
proved possible to settle only one: the pupil, who is aged 17, has ceased
to
attend the lycée, and so put an end to all discussion.
- When
appeals have been made, national judges have confirmed the interpretation placed
by the Government on the concept of a symbol
which has been conspicuously
displayed. The rare cases of annulment did not turn on the interpretation placed
on the Law of 1 March
2004, but concerned decisions to exclude which had
misinterpreted provisions on penalties in the internal rules of the school
establishment
concerned.
- Since
the entry into force of the Law on 1 September 2004, 28 pupils out of the 39 who
have been the subject of a definitive decision
to exclude have taken cases to
the administrative courts. The administrative courts of first instance have
given judgement in 27
cases, of which 13 have been the subject of an appeal. One
appeal to the Court of Cassation has been made, and is currently the subject
of
preliminary procedure to determine admissibility.
- Finally,
it should be pointed out that the pupils excluded in the application of this Law
are not, as a result, deprived of access
to education and training. Under
article 5 of Decree No. 851348 of 18 December 1985 relating to disciplinary
procedures in secondary
schools, lycées and establishments for
special education, excluded pupils who are subject to compulsory school
attendance must be referred to the
director of education or the education
authority inspector so that they can take the action necessary to provide for
their enrolment
in another establishment or a public centre for instruction by
correspondence (article L. 131(2) of the Education Code). Those who
are not
subject to compulsory school attendance can also enrol at the National Centre
for Distance Learning to pursue their school
education. In any case, pupils
always have the ability to pursue a private education, which may be religiously
denominational, and
local authorities contribute to the cost of this from public
funds.
D. FREEDOM OF ASSOCIATION AND PEACEFUL ASSEMBLY (ARTICLE
15)
- From
the viewpoint of the rules which govern the law of associations, the act of a
minor in joining an association is accepted as
an act of everyday life for which
he or she benefits from his or her parents’ authorization, whether express
or tacit and presumed.
A minor who is an active member of an association may
vote in general meetings and be elected to the board which ensures that
decisions
by general meetings and the officers of the association are carried
out. If the statutes so permit, he or she may also exercise as
agent the
functions of chairman, board member or officer of the association.
- To
mitigate these difficulties [sic] and allow young people to succeed in creating
the conditions necessary to give their experience
of the associative sector a
positive start, the Government has, as indicated in its previous report, acted
to foster the creation
of “youth associations” following the
first national congress on the voluntary sector, organized in Paris in February
1999.
- A
“youth association” is an arrangement which allows young
people aged under 18, who are undertaking a project, to get together to put that
project into
practice in a setting which offers a measure of security and with
the support of a contact person in each département. It may also
admit adults, but must be composed of a majority of minors. Procedure for
setting one up is deliberately simple, but clearly
defined: having settled on
their project, the young people involved must obtain from the departmental
contact person for “youth associations “a case file which
functions as an application for authorization, and must deposit this case file
with the national “youth association” network.
- Despite
the title, a “youth association “is not an association in the
strict sense, subject to the Law of 1901: what is involved is a kitemark, which
is recognized
for one year, renewable, and gives a number of advantages.
Obtaining the kitemark gives access to free insurance designed to cover
the
minors’ activities and their civil liability and allows them to open a
bank account and have the use of a cheque book,
and to have access to a number
of tools designed to help with designing the organization and with training
activities. Routes to
finance are available via “Youth
Challenge”[63],
foundations and local authorities. Arrangements are made for support, calling on
the experience and savoir-faire of “resource persons” who
give the young people guidance on the steps they need to take.
- This
national network, which brings together the ligue
d’enseignement[64]
, the association J. Presse, the public interest grouping
“Youth Challenge”, the National Federation of Social Centres
and the French confédération des maisons de jeunes et de la
culture[65], is an
association subject to the Law of 1901.
- With
670 “youth associations” on French territory as a whole,
including in overseas France, for the school year 2006-2007, this arrangement
makes an active contribution
to getting young people strongly involved. A great
deal of information is available on the Internet site
www.juniorassociation.org/ja.php,
including the list of the contact persons in
the départements, the list of “youth
associations” that have been set up and links to the some 190 web
pages posted by “youth associations”.
- In
addition, virtually all school establishments, in particular at secondary level,
have clubs for cultural, sporting and awareness
activities in which pupils gain
initial experience of the voluntary sector within a framework provided by
adults.
V. FAMILY ENVIRONMENT AND ALTERNATIVE CARE
A. PARENTAL GUIDANCE AND RESPONSIBILITIES (ARTICLES 5 AND 18,
PARAGRAPH 1)
- The
Law of 4 March 2002 referred to above has given general effect to the principle
of joint exercise of parental authority by the
father and mother, whatever their
matrimonial circumstances, once the child’s filiation to them is
established in the year
following birth. This provision applies equally to
children born before this Law’s entry into force.
- Where
parental authority is being exercised unilaterally, the parents are able to make
a joint declaration before the Chief Registrar
of the Regional Court with a view
to exercising parental authority over their child jointly. Where there is
disagreement, the parent
who is the main provider of care may apply to the
Family Judge to rule on arrangements for the exercise of parental authority.
- In
all cases, the father, the mother or the ministry with general responsibility
for the protection of those lacking legal capacity,
including children, may ask
the Judge to rule on arrangements for the exercise of parental authority.
- In
particular, the Law of 4 March 2002 provided flexibility in the conditions for
the voluntary delegation of parental authority.
When circumstances so require,
the parents, either separately or jointly, may delegate the exercise of their
authority in whole or
in part to a third party who is either a family member or
a trustworthy close connection (art. 377 of the Civil Code). The Family
Judge authorizes this sharing of parental authority and sets a framework for its
exercise (art. 377(1)). It does not entail recognition
of any legal
relationship of filiation.
- The
Court of Cassation agreed for the first time in a judgement of 24 February 2006
to apply these provisions in the case of a same-sex
couple living in a stable
and continuous union (a mother linked with her female partner by a civil
partnership), as the delegation
requested was in the best interests of the
child. In this particular case, judges in the lower courts had remarked that
“the lack of paternal filiation created the risk that, in the event of
unforeseen events making it impossible for the mother,
who is required on a
daily basis to travel long distances for professional purposes, to express her
wishes, Mme Y might find herself
faced with the legal impossibility of
discharging the role that she had always had in the eyes of Camille and Lou in
their upbringing”.
B. CHILDREN SEPARATED FROM OR DEPRIVED OF THEIR FAMILY
ENVIRONMENT
(ARTICLES 9 AND 20)
1. Separation of the parents
- The
French Government would like to provide information to supplement the
developments covered in its second periodic report.
-
The Law of 4 March 2002 on parental authority provided for various measures
favouring the maintenance of the child’s links
with both parents by making
arrangements for effective co-parenting.
- This
means that the separation of the parents has no implications for the devolution
of the exercise of parental authority, which
continues to be exercised jointly
except where the interests of the child call for a different arrangement. In
such cases, the parent
deprived of parental authority nevertheless retains the
right and the duty of oversight over the child’s maintenance and
upbringing,
and to be informed of major choices affecting him or her. A right to
visit and to receive visits from the child cannot be refused
except for very
serious reasons and the parent plays a part in the support of the child by
making a maintenance payment.
- In
all cases, both mother and father must maintain personal relations with the
child and respect his or her tie to the other parent.
For example, where one of
the parents is planning to move home, and the move could prejudice the
arrangements in place for the exercise
of parental authority, he or she is under
an obligation to inform the other parent in advance and in good time. In the
event of disagreement,
a submission can be made to the Family Judge to make a
ruling based on the interests of the child.
- Although
in principle separation does not call the exercise of parental authority into
question, it does involve break-up of the family
unit and new arrangements for
housing the child, who may live:
- – at the
place of residence of one of the parents, with the other having a right to make
and receive visits (78%);
- – alternately
at the place of residence of each of the parents (11%); or
- – exceptionally,
and especially when one of the parents is deprived of the exercise of parental
authority, with a third party,
preferably chosen from among the child’s
relations.
- These
housing arrangements and the contribution to be made to the upkeep and
upbringing of the child may be the subject of an agreement
submitted by the
parents for the approval of the Family Judge and, in the event of disagreement,
the issue may be referred to the
Judge by one of the parents.
- The
Family Judge must take special care to safeguard the interests of children and
minors. In the event of disagreement, the judge
must make every effort to
conciliate between the parties. In this connection, in order to make the search
for a consensual solution
easier, he or she may propose family mediation
measures to the parents and, when he has the parents’ consent, designate a
mediator
to carry them out. In the absence of agreement, he or she may require
the parents to meet a family
mediator[66] who will brief
them on the aims of the process and how it works.
- The
fact that the human dimension of family conflicts is particularly sensitive
requires that in practice priority is given to finding
a solution which does not
operate exclusively in a legal setting, but rather in one which is likely to
defuse parental or conjugal
disputes, especially where the maintenance of
relations between the child and his or her two parents is concerned.
- In
ruling, the Judge takes into account the parents’ previous practice, the
opinions expressed by the child, the preparedness
of each parent to accept his
or her responsibilities and to respect the other parent’s rights, and
expert opinion given and
information received in the course of any inquiries
that may have been made by the social services.
- In
2004 the French Government created a State Diploma for family mediators in order
to raise levels of specialist skills among
practitioners[67].
- Decree
No. 2004-1158 of 29 October 2004 on family procedure allowed Family Judges
recourse to this measure in all contentious proceedings
coming before them.
Thus, family mediation can be ordered in contexts ranging from post-divorce
litigation to cases about grandparents’
visiting rights or about setting
maintenance payments.
- In
2005, the Ministry of Justice financed 153 associations carrying out family
mediation to the extent of €555,765 (out of total
financing of about
€4 million, the greater part of it coming from local authorities). To
guarantee permanent financing arrangements,
the National Family Allowances Fund
has put in place payments designed to cover 66% of the costs of family mediation
services. Committees
for mediation have been created in each
département, based on partnership, with the intention of making
family mediation services more widely known and guaranteeing their operational
and quality standards. The particular purpose of the service payment contributed
by the Family Allowances Funds is, among other things,
to work for the
well-being of the child, and to promote respect for the child and the
child’s interest during the legal dispute
in which the parents are
involved, while keeping the child outside the process and ensuring that he or
she cannot be used to further
the interests of either side.
- Other
accommodation is provided where meetings between parents and children can be
arranged, in a secure setting and suitable surroundings,
to allow the parent
with whom the child is not living to exercise the right to make and receive
visits. Since the Law of 5 March
2007, referred to above, the Family Judge may
provide for the right to visit to be exercised in a meeting place designated for
this
purpose[68] when
necessary for the continuity and effectiveness of the links between child and
parent or when required by the interests of the
child.
2. Placement of children
- As
the French Government indicated in its previous periodic report, the placement
of a child in difficulty or danger may not be ordered
by the authorities without
the agreement of the parents. Only a court decision may overturn the
parent’s wishes if they withhold
their consent. The legal provisions
relating to tutelary assistance remind the Judge that the child must be kept in
the family environment
wherever possible. In the event of a placement, exercise
of parental authority by the parents is preserved.
- Since
France’s last periodic report, the Law of 5 March 2007 referred to above
reforming child protection has made several amendments
to procedures for
tutelary assistance in order to increase the quality of the responses made by
the legal system. In particular,
the Law improves the coherence of the
arrangements for placement and allows them to deal with a number of
circumstances in which
the exercise of parental authority puts a child in
placement in grave difficulty.
- Cases
in which the Children’s Judge can take measures of tutelary assistance are
extended to circumstances in which the conditions
for his or her physical,
emotional, intellectual and social development are seriously
compromised[69]. It is
explicitly stated that, when ruling, the Children’s Judge must do so
having strict regard to the interests of the
child[70].
- When
it is necessary to take the child out of his or her normal environment, the
Judge may provide that the tutelary service which
is monitoring the minor should
place him or her in residential accommodation periodically or exceptionally in
the interests of his
or her protection while at the same time maintaining the
child’s links with his or her
family[71].
- Further,
the Judge may partially and selectively delegate parental authority to the
person, service or establishment entrusted with
the child. This exceptional
measure may be taken only if the interests of the child justify it. It is also
subject to proof by the
person applying for it of its necessity, in other words
of an abusive or unjustified refusal by those who hold parental authority,
or of
negligence on their part[72].
- In
the event of placement, the place where the child is to be kept must be chosen
in his or her interests, so as to facilitate the
practical exercise by the
parents of their visiting rights and the maintenance of relations with brothers
and sisters. In addition,
if the interests of the child require it, the Judge
may decide that the location where the child is kept should remain
confidential[73].
- The
same Law also introduces a measure providing for legal aid for the management of
the family budget[74].
- During
2005, 111,706 cases of minors at risk were referred to Children’s Judges.
They were dealing with 209,930 minors at 31
December 2005. They ordered 323,394
individual measures.
- Since
Council Regulation No 2201/2003 (EC) of 27 November 2003 concerning jurisdiction
and the recognition and enforcement of judgements
in matrimonial matters and the
matters of parental responsibility, known as “Brussels
2a”came into force, it is possible in addition to envisage
cross-frontier civil placements within the territory of the Member states of the
European
Union. This means that the European dimension of the family, in which
free flow between members plays an integral part, is taken
into account.
3. The detention of parents
- First,
the French Government reminds the Committee that, when a person has declared
that he or she is exercising sole parental authority
over a minor aged sixteen
or less who resides with him or her, the liberty and custody judge may not order
that person’s detention
on remand without first having secured acceptable
living conditions for the
minor[75].
- More
than half (54%) of those detained have one or more living children, the average
being a little more than two (2.1).
- The
Prison Service continues to deal actively with maintaining family ties and with
the right of families to meet their close relations
in the most decent possible
conditions, as this question makes an important contribution to policies for
social inclusion.
- As
specified in France’s last periodic report, the relevant passages of which
remain up-to-date, French legislation allows women
in custody to keep their
children with them until the age of
18 months[76]. This time
limit may be extended by decision of the Regional Director on the advice of a
consultative committee. Women concerned
are held in appropriate conditions.
Twenty-five prison establishments are equipped for this purpose. However, only a
small number
of children aged less than 18 months – some 50 –
live in custody with their detained mothers. The average length of residence
of
these children varies between four and five months. For the
Committee’s information, 2,326 women were in imprisonment on
1 July 2007
(some 3.8%), 918 of them on remand and 1,408 following
conviction[77], and more than
70% of women in custody are mothers.
- As
the exercise of the functions of the Prison Service applies only to the mother,
the Service counts on its partners in other services
and in associations to help
the mother in taking care of her children. The mother retains parental authority
and remains the only
person in a position to decide what is best for her child.
During the day, the child can be taken care of outside the prison in a
nearby
collective facility (a crèche or
halte-garderie[78]) or
on an individual basis (by a child-minder).
- In
view of very positive results from an experiment with family visiting units in
three penal establishments, the decision has been
taken to put this arrangement
into practice from September 2006 in four other penal
establishments[79] and to
extend it to future penal establishments for prisoners serving long sentences.
Moreover, family visiting rooms are being installed
in existing main prisons
whose configuration does not allow the creation of family visit units. Located
in smaller spaces, they will
nevertheless be similar in conception and will
allow prisoners visits of three hours’ duration free of direct
surveillance
by the Prison Service.
- The
Prison Service is also following a systematic policy for installing and
equipping children’s areas within the visiting rooms.
These areas allow
better care for children and provide space for shared play with their
parents.
- The
voluntary sector acts as a major partner for the Prison Service in helping
children to keep up their relations with a parent in
prison.
- For
example, the Federation of Child-Parent Link Associations (FREP),
officially created in March 1994, “has as its object the federation and
coordination of the various link associations, securing the training of
volunteers, ensuring
that the charter agreed between the associations is
observed and, through research and information, inculcating within each link
association a strong motivation towards the pursuit of its core
mission”[80].
- At
present, 20 regional associations and 2 foreign associations are members of this
federation. They bring together about 600 volunteers
within a framework provided
by about 50 professionals in infants’ issues, and work in 42 prisons
(about 20% of penal establishments).
More than a quarter of metropolitan France
benefits from the work of these associations.
- Among
the local activities that FREP supports is the provision of care for
children in family visiting rooms when the visits are not run by the other
parent (more than
3,000 cases of support each year) and the running of
children’s areas by professional educators, allowing children’s
visits to a detained parent to take place in a less disquieting environment than
traditional visiting facilities. Local activities
also include providing support
for imprisoned parents through workshops and discussion groups on parenting.
- Since
2001, biennial national meetings have been held: the theme of those held in
November 2007 was “looking into relationships”.
FREP also
works through the European Committee for Children of Imprisoned Parents
(EUROCHIPS), which seeks to harmonize legislation, starting
from comparative
studies based on projects and national experience. These meetings are major
occasions for exchange between children’s
professionals, judges and the
staff of the Prison Service.
- Extending
the federation’s network calls for strong support from the public
authorities, particularly through promoting and
organizing training sessions and
events to raise awareness, share information and address differences in working
practices. A multi-year
agreement with the Ministry of Justice was signed in
December 2004 and renewed in February 2007 for the period 2007-2009. The
federation
is to receive for this period, as it did for 2004-2006, a grant of
about €30,000.
C. FAMILY REUNIFICATION (ARTICLE 10)
- The
Government reminds the Committee that, in French legislation, family
reunification is a right for foreigners lawfully resident
on French territory.
- Since
France’s last report was submitted, provisions relating to family
reunification have been codified. From now on they appear
in Volume IV of the
Code on the Entry and Residence of Foreigners and the Right of Asylum (articles
L. 411(1) ff and R. 411(1) ff
with wording derived from Law No. 2006-911 of
24 July 2006 and Decree No. 2006-1561 of 8 December 2006).
- The
conditions placed on family reunification have been slightly amended. The
minimum length of residence of a foreigner around whom
family reunification
takes place has been extended and is now 18 months. In addition, a ground
for refusal has been added, when the
applicant does not conform to the
fundamental principles recognized by the laws of the Republic (third
paragraph of article 411(5)).
Finally, there is a requirement that the
partner who benefits from the application for family reunification must have
reached majority
at the date of the application (art. L. 411(1)).
- As
the Government indicated in its last report, children who are authorized as
minors to live in France can, as of right, obtain a
residence and work permit on
coming of age of the same kind as their parents. They apply for a residence
permit when they come of
age, or at 16 if they wish to work. Under article
314(9) the Prefect may issue a residence permit provided that the person
concerned
can demonstrate uninterrupted residence, in accordance with the laws
and regulations in force, of at least three years since his
or her entry into
French territory by virtue of family reunification, that he or she meets the
condition of integration into French
society in accordance with its republican
principles[81], and that the
parent who originated the procedure for family reunification holds a residence
permit. Failing this, a temporary residence
permit for “Private and Family
Life” will be issued (art. L. 313(1)1). These residence permits give
the right to engage
in any working activity, subject to legislation currently in
force.
- Family
members of groups to whom special regimes apply by virtue of origin (Algerians,
Moroccans, Tunisians and sub-Saharan Africans)
receive a residence permit valid
for the same period as that of the person they are rejoining.
- In
2004, the Committee showed particular concern over the slowness of the
procedures for family reunification in the case of recognized
refugees and
recommended that France should take steps to accelerate the handling of cases
(paragraphs 31 and 32).
- It
should be stressed that the time taken to examine these applications is closely
linked to the difficulties that families face in
establishing full and
acceptable documentation for their civil status. What is more, the service
responsible for dealing with these
applications must verify claims by applicants
about their matrimonial situation and the real composition of their family in
order
to prevent the illicit movement of children. To simplify the process and
reduce delays in examining applications, documents other
than those usually
required are sometimes accepted in corroboration of births (for example:
certificates that the mother has given
birth, certificates of baptism, evidence
of money transfers to families, family photographs, school reports, reports
related to care
during pregnancies etc.). In spite of these arrangements, the
French Government has not been able to reduce significantly the average
time
taken by the procedures. It remains alert to the situation, however, and shares
the Committee’s concern.
D. RECOVERY OF MAINTENANCE (ARTICLE 27,
PARAGRAPH 4)
- Two
French ministerial departments are responsible for the recovery of maintenance
due to be paid in or from another country.
- The
Ministry of Foreign and European Affairs, as the intermediary institution
designated by France, is responsible for the implementation
of the Convention of
New York of 20 June 1956 on the Recovery Abroad of Maintenance. The Government
would like to add to its previous
report by noting that applications for the
recovery abroad of maintenance have increased markedly. In 2006, 300
applications to open
new cases were recorded, compared with 219 in 2005. Results
continue to be modest in this area owing to insufficient cooperation
on the part
of the central authorities responsible for giving effect to such applications in
each country and to difficulties of
a practical nature. Thus, payments are
currently being made by those liable, either voluntarily or consequent on legal
judgements,
in about 150 cases.
- This
fact has led the European Commission and the Hague Conference on Private
International Law to start work towards the adoption
of new legal provisions
designed to strengthen international cooperation and simplify procedures for the
recognition and enforcement
of judgements on liability to pay maintenance.
- The
Ministry of Justice is responsible for the implementation of thirteen bilateral
conventions containing provisions in this area
(Benin, Quebec, Congo, Djibouti,
Egypt, the United States, Niger, Senegal, Chad, Congo, Togo etc.). Depending on
which particular
convention applies, the Ministry’s task may be to
facilitate the amicable settlement of cases or to take proceedings before
the
competent national court for the recognition of a foreign judgement on the
payment of maintenance. About 50 applications are
made each year, about half of
them concerned with payments abroad.
- Two
new instruments are currently being negotiated: an EU regulation on
jurisdiction, applicable law and the recognition and enforcement
of judgements,
and a Hague convention on the international recovery of maintenance for children
and other family members (which is
in the final stages of negotiation).
E. ADOPTION (ARTICLE 21)
- French
legal and administrative arrangements for adoption are based on the principles
recognized by the Convention on the Rights of
the Child and by the Hague
Convention on Protection of Children and Cooperation in respect of Inter-country
Adoption of 29 May 1993.
The aim of the arrangements is to offer to children who
have been deprived of their family environment a family which suits their
interests, and, in the case of inter-country adoption, while respecting the
principle of subsidiarity. With this end in view, the
French State seeks to
ensure that adoptive parents-to-be are suitable to take charge of a child that
has already been born and to
ensure the safety of the adoption process.
- The
legal and administrative arrangements applying in France have been amended since
France’s last periodic report by the Law
of 4 July 2006, referred to
above, on the reform of adoption, and its implementing Decrees.
1. Improvements in procedures for the approval of adoptive
parents and the monitoring of adopted children
- Obtaining
approval is an essential prior requirement for any application for adoption in
France or overseas. There is no “right to a child”. The sole
purpose of the procedure for approval for adoption is to assess whether a
proposal for adoption is sensible and viable and
to determine whether, among a
large number of possible candidates, one person offers the most favourable
conditions for taking in
a child who, in the nature of things, has been made
vulnerable by his or her situation. This approval is an administrative decision
by the President of the General Council of the département as part
of his child protection functions, having assessed arrangements for the
reception of the child from the family, educational
and psychological points of
view.
- The
reform of adoption in 2005 harmonized procedures at the national level for the
assessment of applications for
adoption[82] and strengthened
arrangements for preparing and supporting prospective adopters.
- Each
of the professionals (social worker and psychologist) responsible for assessing
applications must have at least two meetings
with those seeking approval. After
approval, prospective adopters are invited to meetings at which they are given
information aimed
at building up their awareness of the realities of adoption
and of adoptive filiation. In the course of the five years for which
their
approval is valid, the prospective adopters have a compulsory meeting, at the
latest at the end of the second year following
approval, with a professional to
assess the progress achieved in the adoption. At the request of the adopter,
follow-up may also
continue after the adoption order in France or the
registration of a foreign judgement.
2. The adoption of children born in France
- First,
the French Government notes that statistical knowledge of adoption is still
insufficient in France: the statistical data available
are sparse and often
incomplete.
- Children
who may be adopted in France are those to whose adoption the father and mother
or the Family Council of the département have validly consented,
and wards of the State.
- At
31 December 2005, there were 2,504 children with the status of wards of the
State, of whom 841 had been entrusted to families with
a view to adoption. The
lack of adoption procedures in the case of some wards of the State is
principally the result of disability
or state of health (29%), the degree of
success obtained in the integration with their receiving family (18%), their age
or the fact
that they were part of a group of brothers and sisters.
- At
the same date, 27,404 approvals were in process of validation in French
départements. 13,563 new applications were made in the course of
2005. In this period, 8,797 approvals were given, 802 were refused and 327
withdrawn.
In total, barely 8% of applications were unsuccessful (6% refused and
2% withdrawn). The number of prospective adoptions abandoned
in the same period
is much more significant: 3,204, or about
23%[83].
- In
addition, in 2005 the French judicial authorities ordered 7,720
simple[84] and 3,579 full
adoptions[85]. The effect of
simple adoption is to create a new relationship of filiation between the adopted
child and the adoptive family, while
maintaining the child’s relationship
of filiation with the original family. In contrast, full adoption breaks all
ties with
the original family. The child becomes a member of the adopter’s
family, which becomes his sole family.
- Some
départements in Lorraine and Normandy have joined forces, with
help from the State, to facilitate the identification of adoptive parents for
children
who are waiting for a proposal for adoption, especially because of
their age or a disability or health problem, to ensure that the
child is
thoroughly prepared and to provide tailor-made support for the future family.
- At
the national level, the State has put in place an information system the purpose
of which is to make it easier to bring together
children with special needs and
families with approvals for adoption that qualify them to take a child of this
kind. All approved
persons whose adoption status would allow them to take a
child with special needs may ask their département to place their
details on this information system.
- The
Law of 4 July 2005 reorganized procedures for legally establishing abandonment
where manifest lack of interest has been shown
by parents towards a child, in
the interests of allowing such children to be adopted. A child who is legally
abandoned comes within
the category of wards of the State and may thus be
adopted without the prior consent of the Family Council for the
département, in accordance with the provisions of article 347 of
the Civil Code.
- Child
welfare services, establishments and individuals exercising care of a minor must
make an application for a legal declaration
of abandonment once the parents have
shown manifest lack of interest for the period of one whole year. A legal
declaration of abandonment
is made when the judge confirms manifest lack of
interest on the part of the parents, this concept being strictly defined by the
Law of 4 July 2005. The Law has also repealed the notion in article 350 of the
Civil Code of “severe distress to parents”, which could
previously constitute grounds for rejection of an application for a legal
declaration of
abandonment[86].
- In
2004, the Committee was concerned in particular about adoption practices in
French Polynesia (paragraphs 34 and 35). Arrangements here are very
distinctive in that they include a procedure for offering children for adoption,
under which prospective
adopters enjoy delegated parental authority for a period
of two years before any judgement of adoption can be given. A Decree relating
to
wards of the State and Family Councils in the overseas territories, and in
French Polynesia in particular, is to be prepared from
the second half of 2007
to put the procedures for adoption which apply in metropolitan France into
effect there. The Committee will
find fuller information in the section of this
report dealing with the overseas
territories[87].
3. Inter-country adoption: statistics
- There
has been a very major increase in inter-country adoption: from 935 adoptions
concentrated in 10 countries in 1980 to 3,977
visas issued in 2006 relating to
69 countries. It accounts for more than two-thirds of adoptions by French
families. This increase
has nevertheless remained much lower than the growth in
approvals given by the General Councils of French départements to
French applicants for approval as adoptive parents.
- The
international context has also changed. More and more countries of origin either
require or favour the making of applications
via intermediary agencies for
adoption authorized and accredited by the receiving country, whether because
they have acceded to the
Hague Convention of 29 May 1993 or because of
developments in domestic law. This is what has, in part, motivated the reform
described
above of French legislation on inter-country adoption.
- For
2006, the total number of children adopted abroad by French families reduced
slightly (-3.8%) compared with 2005 (3,977 adoptions
compared with 4,136), while
for these same two years the number of countries of origin of adopted children
has remained virtually
the same (69 in 2006 compared with 67 in 2005). This
reduction is relative, however, as the tendency seems to be general: minus
10%
for the United States and minus 20% for Sweden; Germany and Canada had already
registered a reduction in 2005; only Italy achieved
more adoptions in 2006 than
in 2005, but fewer nevertheless than the maximum achieved in 2004.
- As
in 2005, a characteristic of adoptions in 2006 is the continuing predominance of
children from Vietnam. This is explained by the
high number of completed
individual adoptions which were filed in advance of 1 January 2006, the date
from which the Vietnamese authorities
required adopters to proceed through
authorized agencies for adoption. Vietnam is thus the leading country of origin
with 742 adoptions,
about 19% of total adoptions, followed by Haiti, Ethiopia,
Russia and Colombia, then China, which has gone from third place in 2005
to
sixth in 2006. The top four countries alone represent 53% of adoptions (51% in
2005). Adoption is showing major growth from Haiti
(from 475 to 571), is
increasing perceptibly from Russia (from 357 to 397) and continues to increase
slightly from Ethiopia (from
397 to 408) and from Colombia (from 293 to 321),
while it is falling from China (from 485 to 314).
- The
marked increase in adoptions from countries which are parties to the Hague
Convention (1,164 in 2006 compared with 1,067 in 2005)
is linked with the entry
of the Convention into force in China on 1 January 2006. In 2006, as in 2005,
the top ten countries account
for almost 80% of adoptions completed.
- Inter-country
adoptions in 2006 also have a geographical distribution virtually identical to
that for 2005: Asia remains the leading
continent with 32% of adoptions (36% in
2005); Africa is next with 25% of adoptions (26% in 2005). The proportion of
children originating
from the American continent and Europe has levelled off,
accounting respectively for 26% and 17% of adoptions (22% and 16% in 2005).
- French
agencies authorized in relation to adoption under private law, of which there
are 40, have been able to handle 36.6% of adoptions
by French families, or
virtually the same proportion as in 2005 (38%).
F. ILLICIT TRANSFER AND NON-RETURN (ARTICLE 11)
- On
this subject, the French Government refers to its previous report. Its clear
belief is that the complex nature of litigation of
this kind, and the real
difficulty of obtaining and securing the execution in foreign jurisdictions of
judgements ordering the return
of minors abducted in France, have highlighted
the importance of developing preventive measures. In this connection, almost all
services
and consular posts located in countries with which France has ties
through the Hague Convention of 25 October 1980 on the Civil Aspects
of
International Child Abduction have publicized, either locally through posters,
or through their Internet sites, or both, to a
note giving information about the
illicit transfer of children.
- In
the absence of global statistics, it is difficult to quantify this phenomenon.
In 2005, the Ministry of Justice received applications
in 302 new cases of
illicit transfer and non-return of children, and in 282 in 2006. Circumstances
vary widely between one country
or geographical zone and another. Means of
combating the phenomenon vary according to the international instrument which
applies,
which may be multilateral, bilateral or Council Regulation (EU)
No. 2201/2003 concerning jurisdiction and the recognition and enforcement
of judgements in matrimonial matters and the matters of parental responsibility,
known as “Brussels 2a”.
- The
multilateral instrument most widely applied in this area is the Hague Convention
dated 25 October 1980 on the Civil Aspects of
International Child Abduction.
This Convention links France with 61 other States, essentially in Europe and
America. The central
authority which oversees the implementation of this
Convention in France is the Ministry of
Justice[88].
- Within
the European judicial system (except for Denmark), the regulation, referred to
above, known as “Brussels 2a” has applied since 1 March 2005.
This regulation supplements and is consistent with the Hague Convention in the
field of transfers
of minors, notably in that it considerably restricts
discretion to refuse to order the return of the child to his or her habitual
place of residence.
- In
particular, subject to certain conditions, this Regulation puts in place the
principle that the child should be heard. It provides
that the jurisdictions
seised of these cases are to deal with them as a matter of urgency, and may not
refuse to return the child
to his or her State of origin on the grounds that
this would expose him or her to serious danger, if it is shown that the
authorities
where the child normally lives have taken adequate steps to assure
his or her protection, immediately on return. Similarly, return
of the child may
not be refused unless the parent applying for it has been heard.
- If
return is refused, the judgement and the dossier of evidence are passed to the
appropriate judge where the child normally lives,
who will invite the parties to
submit their observations, and then give judgement on the merits of the case: in
other words, the
judge will rule on how parental responsibility is to be
exercised, in a judgement which will be binding over that given in the State
to
which the child has been removed.
- France
also has bilateral links through a number of conventions, principally with the
countries of the Maghreb, the Middle East and
Sub-Saharan Africa. The results
obtained by implementing these conventions are largely linked to regular
meetings of joint committees,
during which case files are examined.
- France
has opted for specialisation and centralization of the judges responsible for
handling these cases, as part of the Law of 4
March 2002 referred to above. This
measure was implemented in
2004[89]. Since then, a
single tribunal for each appeal court has been competent to hear these cases,
and, within each of the courts, one
law officer is designated to prosecute such
cases and one is designated to hear them.
- To
allow for the widest possible distribution of useful information and to
facilitate the handling and resolution of cases on the
illicit international
transfers of children, the Minister of Justice launched an Internet site at the
beginning of 2005 at the following
address:
www.enlevement-parental.justice.gouv.fr.
- In
practice, the Ministry of Foreign and European Affairs can be called upon to get
involved alongside the Ministry of Justice, for
purposes including providing
help to those concerned in their contacts with the local authorities and with
families.
G. ABUSE AND NEGLECT (ARTICLE 19)
- As
already indicated in previous reports on follow-up to the Convention and its
protocols, France is a party to many international
instruments that seek to
combat ill-treatment of children, such as Convention 182 of the International
Labour Organization and the
additional Protocol to the United Nations Convention
against Transnational Organized Crime.
- The
protection of children at risk remains a public health priority. The number
benefiting from child protection arrangements grew
from 268,000 in 2004 to
272,000 in 2005.
- Measures
recently taken respond to several of the recommendations made by the Committee
in 2004, such as that France should pursue
its efforts to prevent
and combat child abuse and neglect, and to sensitize the population,
including professionals working with
and for children, on the magnitude of the
problem (paras. 36 et 37), and should establish a confidential mechanism to
receive the
complaints of all children, including those aged from 15 to 18
(para. 55e).
- Some
of these measures have already been set out in France’s periodic report
submitted in August 2006 on follow-up to the optional
Protocol to the Convention
on the sale of children, child prostitution and child pornography (see paras.
207-220 in particular).
The French Government offers as examples the creation of
a national telephone hotline for abused children (“119”), which
takes on average 4,500 calls a day, the establishment of a National Monitoring
Centre for Children in Danger, and the implementation
of the National Plan to
Limit the Impact on Health of Violence and High-Risk and Addictive Behaviour and
of the Perinatal Healthcare
Plan for 2005-2007.
- New
measures have since been taken to strengthen the protection of minors against
abuse and neglect such as the Law of 5 March 2007,
referred to above, reforming
child protection. In addition to the measures already described (a wider range
of arrangements for intervention
and improved and better-coordinated
arrangements throughout French national territory for spotting and assessing
risks of danger
for children), this Law includes a revised conception of child
protection: it substitutes the concept of the child in danger for
that of the
abused child[90] so as to
cover all situations that put children in danger or at risk of danger. Within
two years from the enactment of the Law, the
Government is to provide Parliament
with an evaluation of the implementation of the new arrangements, their impact,
effectiveness
and their cost to the départements, along with the
financial support provided by the State.
- In
parallel with these wide-ranging reforms, the Government is taking targeted
action on specific problems.
- “Shaken
Baby Syndrome” was addressed at a colloquy organized on 3 March 2006 in
Paris by the Île de France Resource
Centre for Cranial Trauma (Centre
Ressources Francilien du Traumatisme Crânien), and a preventive
information booklet aimed at the general public was prepared.
- The
French Government remains concerned to strengthen arrangements for detecting,
preventing and dealing with female sexual mutilation.
Although the incidence of
this practice on French territory has dropped considerably, because of the
combined effects of its prohibition
by the law and of associations’
sustained efforts to provide training and information, the risk to young girls
has not disappeared
completely and calls for a strong effort from the public
authorities. This has resulted, first, in more effective enforcement of
the ban,
thanks in particular to the passing of the Law of 4 April 2006 to prevent and
suppress violence within the couple or against
minors. Next, it has resulted in
stronger preventive measures, at national and local levels, through information
and awareness-raising
for the population groups who are or may be concerned and
the active involvement of health professionals and all players who work
and are
involved with these
groups[91].
- Dealing
finally with the recommendation of the Committee for the explicit prohibition of
corporal punishment (para. 39), the French Government recalls that
these practices, whether carried out on a minor by a parent, a teacher, a
schoolmaster or an educator, are against the current law. The Criminal
Code[92] in fact provides
severe penalties for “violence committed on a minor under the age of
fifteen by a legitimate, natural or adoptive ascendant relative, or by a person
with authority over the victim”. Such violence, when it leads to
temporary incapacity for work for a period of eight days or less, is punishable
by five years’
imprisonment and a fine of €75,000, and, when it
leads to temporary incapacity for work for longer than eight days, by ten
years’ imprisonment and a fine of €150,000.
H. PERIODIC REVIEW OF “PLACEMENT” (ARTICLE
25)
- The
above-mentioned Law of 5 March 2007 reforming child protection allows, in
exceptional cases, for the judicial placement of a minor
who is at risk to be
indefinite. When the parents have serious difficulties with relationships and
with bringing up their children,
of a kind that have a long-term effect on their
competence to fulfil their parental responsibilities, an order for care in an
institution
or service may be made for a period of more than two years, in order
to allow the child’s particular needs for continuity in
relationships,
geographical location and emotional circumstances to be met. A report on the
child’s circumstances must be submitted
annually to the Children’s
Judge[93].
- The
French Government wishes to bring up to date the statistics submitted in its
last report on beneficiaries of the child welfare
services[94].
- There
are on average 17 beneficiaries of child social welfare services per 1000 young
people aged from 0 to 20. Among them, the proportion
of children in care, in
other words who are subject to placement outside their family environment, is
very slightly higher than that
of children subject to tutelary measures: 51%
compared with 49%.
- In
total, the number of beneficiaries of child social welfare services is estimated
at 272,637.
|
2003
|
2004
|
2005
|
Children in care
|
134,858
|
137,085
|
138,735
|
Tutelary measures
|
127,839
|
131,727
|
133,902
|
- At
the end of 2006, 138,735 children were in the care of child social welfare
services, a roughly stable position relative to the
preceding year (an increase
of 1.2%).
- The
total number of children in the care of the child social welfare services
includes both children specifically entrusted to them
(117,046), whether the
decision to which they are subject is administrative – at the
parents’ request or with their agreement,
or where the child is a ward of
the State – or judicial, and children who are placed directly by the judge
in an establishment
(21,689).
- The
proportion of children entrusted to the child social welfare services under a
judicial measure remains much larger (84%) than
the proportion under an
administrative measure. The number of children subject to a judicial measure in
2005 was 87,436, plus 21,689
direct placements.
- The
total number of home tutelary measures includes both home tutelary measures as
such – administrative decisions by the President
of the General Council of
the département at the request of parents or in agreement with
them – and non-custodial tutelary measures applied by virtue of a judicial
order.
- The
rate of growth in beneficiaries in 2005 was, however, a little lower in 2005
than in 2004. This development is explained by the
growth in non-custodial
tutelary measures (99,567 in 2005, an increase of about 3.5%), which
account for 74% of tutelary measures,
while the number of home tutelary measures
(34,335) is down slightly (by 3.3%) after a rise of 12% between 2001 and 2004.
- Children
entrusted to the child social welfare services are mainly placed in foster
families (55%, some 64,252 children in 2005 compared
with 63,100 in 2004). This
growth needs to be seen as part of a longer-standing upward trend (+5% between
2001 and 2005). Establishments
have care of 38% of children entrusted to the
child social welfare services (or 44,010 children), while other forms of
accommodation
(housing adolescents independently in flats, for example) are in
the minority.
VI. HEALTH AND WELFARE
A. DEVELOPMENT AND STANDARD OF LIVING (ARTICLE 6, PARA 2, AND
ARTICLE 27)
-
In accordance with its obligations under the Convention and with the
recommendations of the Committee in 2004 (para. 47), the French
Government has continued its efforts to help parents and others responsible for
children, and hence to improve the standard
of living of the children who live
within its territory. The following information supplements and brings up to
date that given in
the second periodic report.
1. Fiscal aids
-
The availability of financial assistance has been increased by recent measures.
- The
tax rebate for care costs for infants has been replaced from the tax year 2005
by a tax credit which benefits families which do
not pay tax on income and which
have the lowest incomes[95].
- A
new financial instrument, the chèque emploi service universel
[a cheque which can be used to pay for personal services of various kinds
including childcare], has also been created by Law No. 2005-841 of 6
July 2005 for the extension of personal services. Its operation has been set out
in Decree No. 2005-1360 of 3 November
2005[96].
- By
means of tax incentives and tax exemptions, businesses have also been encouraged
since 2004 to give financial assistance to their
employees in paying the costs
of all kinds of childcare and home-based service (family tax
credit)[97].
- Finally,
it should be noted that only various aids provided to families by Family
Allowances Funds and grants given by the Ministry
of Education remain exempt
from tax on income.
2. Housing assistance
- Law
No. 2007-290 of 5 March 2007 establishing the enforceable right to
housing[98] and containing
various measures to foster social cohesion represents a very major development
in housing policy in France. It sets
up, for certain categories of people in
difficulty, a legal right to housing which is guaranteed by the State; failure
to observe
that right may result in attempts to reach a friendly settlement,
followed by recourse to the
courts[99].
3. Reconciling family and working life
- New
measures have been taken to promote better reconciliation of family and personal
with working life.
- Paid
parental leave arrangements have been reformed as a result of the 2005
Conference on the Family, introducing markedly greater
flexibility than
previously into previous French policy on this subject.
- While
pursuing a policy of free choice allowing parents who so wish to interrupt their
working life to look after a child during his
or her first three years, the
French Government has decided to offer parents the ability, on the birth of a
third child, to opt for
a period of parental leave limited to one year, paid at
a level of €750, that is 50% more than parental leave for three years.
- A
parent who opts for this arrangement reduces significantly the financial losses
due to cessation of work, while at the same time
increasing his or her prospects
of returning to work under favourable conditions, without being compromised by
too long an absence
from the labour market.
- During
parental leave, an employee may benefit either from “free choice”
supplement for income forgone from employment
[complément de libre
choix d’activité] or from
optional[100] “free
choice” supplement for income forgone from employment
[complément optionnel de libre choix] provided by the Family
Allowances Fund[101].
- Financial
measures have in addition been taken to encourage and help return to work by the
poorest sections of the population, and
thus remove a major brake on inclusion
in the labour market and emergence from
insecurity[102]. Since 1
February 2006, establishments providing care for infants are required to take a
number of children of those in recent of
minimum social benefits while they
return to employment, undertake training or look for work.
- Other
measures are intended to help those who wish to suspend their employment for
therapeutic reasons. Parental attendance leave
is designed for parents of
children aged under 20 who are seriously ill, or suffering from disability or
accident, when the condition
of the child requires a carer to be present. They
can then benefit from a daily parental attendance
allowance[103] paid by the
Family Allowances Fund. Family solidarity leave, which replaced the
carer’s leave introduced in 1999, meanwhile, allows people who have a
close relative suffering from a potentially
terminal illness to take leave of
absence to look after him or her for a maximum of three months, renewable
once.
- In
2005, 11% of families with a first child benefited from “free
choice” supplement for income forgone from employment and from
child’s arrival allowance, which, in contrast to the
parental upbringing
allowance which existed previously, applies to a first child as well as to
subsequent births. “Free choice”
supplement for income forgone from
employment at the lower rate for the first infant applied only in the case of 7%
of families.
Conversely, a third of families with two or more children opted for
“free choice” supplement for income forgone from employment
at the lower rate. The replacement of parental upbringing allowance
by this
supplement increased the attractiveness of part-time employment. The proportion
of women with two children, of whom one was
under three, working part-time has
risen from 38% in 2003 to 41% in 2005. Nevertheless, an eye needs to be kept on
the possible effects
of the eviction from the labour market of women who belong
to certain employment and social categories (in particular those with
few
qualifications) on the duration of part-time employment.
- Finally,
the Government draws attention to the fact that provisions relating to part-time
working in the event of the illness of a
child, to leave where a child has a
long-term illness and to parental upbringing allowance have lapsed.
4. Policy on infant care
- France
is relatively well provided with aids and services for infant childcare, thanks
to an active policy in this field. Infants
account for 1% of its gross domestic
product [sic].
4.1 Major resources serving ambitious aims
- The
main aims of policy for infant childcare can be summarized under four
headings:
- – favouring
free choice for families, by allowing parents to maintain, suspend or reduce
their work activity and by providing
a wider range of care arrangements for
their child or children;
- – guaranteeing
the safety, health and well-being of children within care arrangements of
different kinds and within their family,
valuing parental roles and supporting
parents, where necessary, out of concern that arrangements should complement one
another and
that children’s upbringing should be “a joint
effort”;
- – promoting
equality between men and women and active participation by the latter in the
world of work; and
- – promoting
equality of opportunity and contributing to early prevention of the processes of
exclusion.
- The
French State has mobilized major resources in the service of these aims.
- First
of all, it has undertaken a wholesale reform of the regulations involved in
order, in particular, to increase the capacity and
quality of care arrangements,
to make it easier for all families to access them and to improve the public
authorities’ monitoring
of the various care arrangements.
- Decree
No. 2007-230 of 20 February 2007 for the reform of care establishments and
services (local authority and family-run crèches,
haltes-garderies[104],
kindergartens) [105] should
allow the supply of care to expand while improving its quality (enhanced
qualification requirements, compulsory plans for
social upbringing, more
flexibility in the organization and management of services, the ability to
create micro-crèches of
9 places within an appropriate framework,
especially in rural areas etc.).
- The
regulation of holiday and leisure centres was amended by Law No. 2001-624
of 17 July 2001 and Decrees No. 202-883 and -884 of
3 May
2002[106], then by Order
No. 2005-1092 of 1 September 2005.
- The
status of child-minders and assistants familiaux [see below] has
been revised by Law No. 2005-706 of 27 June 2005 so as to expand capacity
for care within an improved
framework[107].
- From
now on, these two occupations will be more clearly distinguished. An
assistant familial is defined as a person who habitually and permanently
accommodates minors and young adults aged less than 21 in his or her home,
as
part of a child protection arrangement, a socio-medical arrangement or an
arrangement for family therapeutic care. With other
members living in the home,
he or she constitutes a provider of family care.
- The
principle that prior approval is needed to engage in these professions is
confirmed and arrangements for this are defined: approval
is given by the
President of the General Council of the département who considers
new criteria in giving it (such as: skills in the upbringing of children,
command of spoken French and absence of certain
types of criminal conviction on
the part of the adult or adults resident at the applicant’s home).
- Working
conditions, pay and training for assistants familiaux have been improved
in order to make the profession more attractive, increase its professionalism
and meet the needs of children who
cannot be kept in their families. In
particular, the duration of training has been significantly increased, from 120
to 300 hours,
and a State Diploma for assistants familiaux has been
created, offering career development and greater professional
recognition. This Diploma is not compulsory, but obtaining it removes the need
for approval
to be renewed. A 60-hour course has also been introduced to prepare
the assistant familial to receive the first child entrusted to him or
her[108].
- Similarly,
Law No. 2005-841 of 26 July 2005 has provided a fuller framework for
child-minding services for the under-threes delivered
in a parental home setting
by establishing a mark of approval (the “Quality” mark),
which is awarded by the Prefect after advice from the President of the General
Council of the
département[109].
It will be linked to the observance of rules to be specified in a ministerial
order which is under preparation.
- The
State has also simplified financial assistance arrangements for the operation of
these services. There is an ambitious, multi-year
programme for this assistance
within a framework provided by agreements on objectives and management which
have been signed between
the State and the National Family Allowances Fund. For
the period 2001-2004, three successive plans have been put in place to provide
help with investment in the development of local authority childcare facilities,
amounting to €228 million in 2001 and 2002,
then €200 million
in 2004. The new agreement for 2005-2008 signed in August 2005 for the
period from 2005-2008 envisages the
establishment of a fourth fund of €165
million, intended to create 15,000 places in addition to the 42,000 places
that have
been, or are being, created under the three previous funds.
- The
fifth “Plan for Infants”, launched on 7 November 2006, also
contributes to increasing and diversifying the supply
of childcare in French
territory as a whole. In particular, it envisages the creation of 40,000
childcare places in six years, the
development of training for infants’
professionals (by creating specialist platforms in each region and providing
training
free of charge to 20,000 people), an increase in the number of
child-minders (+60,000, or +5% per year), placing management functions
on a
cooperative basis in establishments or services providing care for fewer than 20
children, the development of micro-crèches
and commercial crèches
and the creation of new ones in municipalities with 3,000 to 5,000
inhabitants.
- Finally,
and more generally, the Government is continuing with its efforts to provide
information and advice and to raise the awareness
of the various participants in
childcare, especially as part of the preparations for the Conference on the
Family and through the
publication of practical guides (the Guide to Infant
Childcare, published on 15 May 2007, is available online at:
http://www.famille.gouv.fr/dossiers/accueil_petite_enfance/guide.pdf).
4.2 The different modes of childcare
Care
by the parents
- Thanks
in particular to parental leave, and/or to child allowance, replaced by the
“Free choice” supplement to the child’s
arrival allowance for
income forgone from employment (complément libre choix
d’activité de la prestation d’accueil du jeune
enfant)[110], about a
million children under the age of three are cared for by their parents (almost
half of the 2.2 million children in this
age bracket).
Care by
child-minders
-
About 560,000 under-threes are looked after in the homes of approved
child-minders. Nine-tenths of them are employed directly by
families, who
receive a financial allowance to cover part of what they
pay[111]. Only a minority
of child-minders are employed by family crèches (crèches
familiales[112]), which
are generally run by the municipalities and financed on the same system as local
authority crèches.
Local authority childcare
- Local
authority childcare offers about 326,565 places in local authority
crèches and 62,000 places in family crèches.
The number of
childcare establishments or services, currently almost 9,000, has been
growing consistently since 2001. The majority
are run by the municipalities and
by some départements (two thirds) and, less frequently, by
associations (including parental crèches (crèches
parentales)[113]).
- Finance
is provided for about a third of the costs each by the Family Allowances Funds,
the communes and families. Families pay a charge which is proportional to
their income, which guarantees fairness and access to the service for
less
well-off families.
- As
local authorities have no duty to establish crèches, the regular
expansion achieved over twenty years has been due to a
policy of providing
financial support and developing contractual relationships between the Family
Allowances Funds and those running
crèches, and to voluntary efforts on
the part of municipalities and associations.
- The
Circular of 30 June 1983 on Participation by Parents in the Daily Life of
Crèches created a push for the creation of councils
for the establishment
of infant childcare, left principally to the initiative of the local
authorities. The participation of parents
in such initiatives can only improve
mutual confidence and cooperation between parents and those professionally
involved in infant
childcare establishments as a whole, with benefit for all
children receiving care and, beyond this, even for children as a whole
in the
neighbourhood in which they live. It makes parents prepared to get similarly
involved in schools and gives children an early
example of the importance and
value of civil involvement and participation on the part of the citizen.
- Thinking
has begun towards the establishment of a public service for infants which could
take the form of an enforceable right for
families.
Childcare in kindergartens
- The
number of children cared for in kindergartens is residual (10,000) owing to the
marked growth in access for children to infant
school from the age of two to
two-and-a-half years.
Childcare in infant school
- The
2.6 million children aged between 3 and 6 all receive education in infant
school, although enrolment is optional. Some schools
also enrol children as soon
as they have reached the age of two, especially in disadvantaged areas or where
little infant childcare
is on offer. At the beginning of the school year
2005-2006, in metropolitan France and the Overseas Territories and Departments,
taking the public and private sectors together, the rate of school enrolment at
the age of two was 24.5%, after peaking in 2000 at
a rate of about
35%[114]. There are,
however, geographical disparities, especially linked to demographic changes. The
studies which have been carried out
tend to show that enrolment at the age of
two produces, on average, better results at school for children in all social
categories,
with the improvement increasing in proportion to the length of
nursery education.
Childcare at home by persons employed by
parents
- 32,000
children are looked after at their parents’ home by a nanny, whose pay is
partly covered by a financial allowance.
- The
facts show that parents often resort to more than one childcare solution for the
same child. In addition, children mainly looked
after by their parents may be
cared for occasionally or on a part-time basis in haltes-garderies [see para
303] (66,000 care places).
5. Children’s and young people’s
contracts
- To
support the strong growth in care arrangements for children and for free time,
significant financial resources have been allocated
to “the Family
Branch”[115].
Expenditure by this branch on social action grew by 15% in 2004 and 17% in
2005. In 2004, €820 million were spent on “Children’s’
and Leisure Contracts” (contrats enfance et temps libre), some 26%
of the spending of the Family Allowances Funds on social action.
- The
Family Branch, faced with a phenomenon in society which has led to more and more
families leaving the large conurbations for areas
on the urban fringe or in the
countryside, which often lack childcare infrastructure, has decided to change
the composition of its
financing activities so as to respond better to needs.
Accordingly, Childhood and Leisure Contracts have been replaced from 1 July
2006
by Children’s and Young People’s Contracts, which also apply to
children from 0 to 17 years of age, and which have
the same objectives as the
two previous contracts, but which make matters fairer by giving preferential
treatment to the most deprived
areas.
- The
system involves contracts which set objectives and which provide for joint
finance by a Family Allowances Fund and a local authority
or a grouping of
communes. The Children’s Contract was intended to develop a
balanced supply of services across French territory in the interests of
children
aged under 6 and Leisure Contracts were designed to favour collective leisure
arrangements and holidays for children and
adolescents, in cooperation with
existing local provision.
B. DISABLED CHILDREN (ARTICLE 23)
- While
welcoming the programmes for integrating children with disabilities into
mainstream education, the Committee invited France,
in 2004, to actively pursue
its efforts in this area (paras. 40, 41 and 49).
- Mainstream
education for children and adolescents with disabilities is one of the main
issues in the new policy on disablement, defined
by the Law of 11 February 2005,
referred to above, on equal rights and equality of opportunity and the inclusion
and citizenship
of disabled persons. Indeed, this new Law goes further than that
of 30 June 1975: it establishes as a principle that all children
with a
disability have the right to enrol in mainstream education, in other words in
education which is the responsibility of the
national education service.
- Only
where the necessity becomes apparent for provision which is specially adapted to
the pupil’s disability is full-time or
part-time care for him or her
provided in a different school establishment which has classes available for
primary-level integration
or special teaching units for secondary-level
integration, or otherwise in a socio-medical or healthcare establishment.
- To
decide on a course of instruction which is suited to the child’s
particular needs and potential, the law provides for an
evaluation to be carried
out by the multidisciplinary team of the Departmental Centre for Disabled
Persons[116],
established under the new legislative arrangements. This evaluation is given
formal status in a personal educational project plan
developed with the
pupil’s parents (or legal representatives) and all the professionals
involved in the pupil’s school
career (teachers, establishment heads,
psychologist, doctor, educationalist etc). A specialist teacher nominated as a
central point
of contact is at the core of this arrangement. He or she is the
principal contact for the teams involved and the child’s parents,
ensures
that his or her schooling proceeds according to plan and ensures consistency and
continuity in his or her school career.
- Instruction
is organized as close as possible to where the child
lives[117]. These new
arrangements mean that it is no longer necessary to think in terms of a
mainstream education as opposed to a special education
(a concept which has now
been abandoned), but in terms of making educational activities complementary to
one another in the interests
of the disabled child or adolescent. Thus, if the
child’s personal learning plan provides for part of his or her schooling
to take place in a healthcare or socio-medical establishment, the pupil retains
the benefit of enrolment in mainstream education,
but alongside enrolment in the
other establishment concerned. In this case, an agreement is reached between the
two establishments
and the teacher nominated as the central point of contact
ensures that the child’s enrolment is maintained in his or her principal
school, which is explicitly referred to as such in his or her personal learning
plan.
- In
2005-2006, 151,500 children and adolescents with a disability were enrolled in
school education in France within the national education
service, or 67% of the
total school population of pupils with a
disability[118] (compared
with 52% at the beginning of the school year 1999-2000). This significant
increase is evidence of the determination that
France has shown in the policy
that it has been following in this area. Between 1999 and 2005, the number of
children or adolescents
with a disability enrolled in “individual”
school education– that is, in “ordinary” classes, or in
classes especially for pupils having social difficulties or difficulty with
schoolwork – doubled. It increased to 104,000 pupils
in 2005-2006 (or 69%
of children with a disability enrolled in school education within the national
education service). The others
(31%) were enrolled in classes especially
intended for children with a disability (or “collective” schooling),
that is,
in classes for primary-level integration (39,800 children) and in
teaching units for secondary-level integration (7,800 children).
- These
children can also benefit, depending on their disability, from various forms of
assistance in mainstream education. These range
from support from specialist
teachers with subjects in which they are having difficulties to help, provided
in concert with their
teacher, from classroom auxiliaries. Since 2001, specially
adapted teaching materials have also been made available.
- It
is only when the situation of the child is not compatible with schooling on
these lines that he or she is guided towards a medical/educational
setting
(70,100 children in 3005-2006) or a hospital setting (6,200 children in
2005-2006) under the supervision of the Minister
of Health, which offers
comprehensive care[119].
- The
judiciary makes sure that the right to education of children with a disability
is respected by the State. Accordingly, in a judgement
of 11 July 2007 that
attracted particularly wide attention, the Administrative Appeal Court of
Paris[120] confirmed a
judgement against the State for the non-enrolment in school of a child with a
disability, considering that “the State has a responsibility to offer
children with a disability educational arrangements which are at least
equivalent, taking
their particular needs into account, to those made available
to children in mainstream education; that failure to fulfil this legal
obligation, the effect of which is to deprive a child of education appropriate
to his or her needs, constitutes negligence of a kind
which engages the
responsibility of the State, which the latter may not avoid by relying on the
insufficiency of budgetary provision,
on failures by other persons, whether
public or private, to offer suitable establishments or on the fact that
allowances are paid
to the parents of children with a disability to help them to
secure their education. The child concerned was one who had been receiving
a special education since the age of eight: the healthcare establishment
which was looking after him had reduced the level of care that
it provided
following deterioration in his state of health.
- At
the international level, France has taken an active part in the negotiation of
the Convention on the Rights of Persons with Disabilities.
In part, the adopted
text follows the advances made by Law No. 2005-102 of 11 February 2005 on
equal rights and equality of opportunity
and the inclusion and citizenship of
disabled people, which in some cases are the subject of specific provisions. It
recognizes the
developing nature of the concept of disability, which is not
reducible to deficiencies and incapacities, and takes account of the
social
disadvantage that results from the social, material, human and technological
environment in which persons with a disability
live. France signed this
convention immediately on 30 March 2007 and launched the procedure for
ratification. France supported the
adherence of the European Commission to the
Convention and is actively encouraging its other partners to sign and ratify the
text
quickly.
C. HEALTH AND HEALTH SERVICES (ARTICLE 24)
1. Mother and childcare
- Following
on from a number of
reports[121], the Law of 5
March 2007, referred to above, on the reform of child protection renews and
strengthens the organization and role of
the Departmental mother and child
healthcare services.
- In
the first place, the mandates of the Departmental mother and child healthcare
services are refocused on social action, strengthening
the legitimacy of their
role in the field of social action and not just in public health. From now on,
these services feature explicitly
among the services of the
départements which work together for child
protection[122].
- Secondly,
the role of the Departmental mother and child healthcare services is reinforced
in the fields of early prevention and assistance
with parenting. From now on,
these services have a duty to act both in the pre-natal and the post-natal
period, thus playing a part
in a major thrust of policy for the reform of child
protection. They may also put in place such measures of support as appear
necessary
in the light of the outcome of the psychological and social interview
which is now compulsory during the fourth month of pregnancy.
Finally, these
provisions reinforce the role of these services in the monitoring of the health
of children below the age of six and
their ability to intervene in schools on
these grounds alongside the school medical services, especially in assessing the
state of
health of children aged three and
four[123].
- Thirdly,
an annual report, which also takes account of their state of health, must be
made on children entrusted to the Children’s
Welfare Services. The
Departmental mother and child healthcare services will be asked to make these
assessments. They will also have
a part to play in arrangements for collecting
information giving grounds for concern and in passing it to the operational unit
of
the département, and will be represented within the
Departmental Monitoring Centre for Children at Risk.
- Finally,
the roles and responsibilities of the President of the General Council of the
département and of the local representative of each of the
Departmental mother and child healthcare services have been clarified. The
Public
Health Code[124] now
provides that the Departmental mother and child healthcare services shall be
headed by a doctor, but that he or she shall be
under the authority of, and
responsible to, the President of the General Council of the
département.
2. The promotion of pupils’ health
- As
explained in France’s second periodic report, children over the age of six
are monitored by the Schools Health Promotion
Service. Since, 2004, France has
strengthened its programme for health education in schools.
- The
five-year plan for prevention and education relating to health in schools
(2003-2008) sets out the main priorities for France’s
policy in this area.
- Health
education in primary and secondary schools and lycées forms a part
of the common base of knowledge and competences to be mastered by
the end of the third level. A new guide on methodology, entitled
“Health Education at School: How to Choose, Prepare and Carry Out a
Project” has been prepared in partnership with the National Institute
for Health Protection and Education to help with the delivery of health
education in schools and educational establishments. Of the 100,000 copies
printed, 75,000 were
distributed at the beginning of 2007 to the various
participants involved in school life.
- Sex
education is also given in secondary schools and lycées. There is
a requirement for AIDS prevention to be systematically dealt with in this
context. Following the distribution of a “Guide for Colleges and
Lycées” to those involved at the beginning of the school year
in 2005, of a booklet dealing with “Teaching Responsible
Behaviour at College and Lycée” and of a teaching pack on
“Love and Happiness”, more especially aimed at pupils in
classes at the fourth and third levels, recommendations are in preparation for
primary schools.
- Action
against tobacco use and to prevent addictive behaviours is also being
strengthened by the general implementation, as part of
the follow-up to a
programme of preventive work in these areas, of arrangements which have been
piloted for the fourth and third
level age-groups, and by piloting the programme
for the first and terminal level age-groups. Decree No. 2006-1386 of
15 November 2006 applies a ban on smoking in all places of common resort,
including primary
and secondary schools and lycées and
universities in their entirety. To ensure that national policy for this
prevention of addictive behaviours in schools is applied
consistently, an action
guide for practitioners in schools, prepared with the Interministerial Taskforce
on Drugs and Drug Addiction,
was distributed to all primary and secondary
schools and lycées during the first quarter of 2006.
- This
guide, designed to provide a reference tool in school settings, is an enormously
valuable document which must become an integral
part of the educational dynamic
of teaching establishments through steps taken to promote health on a
dramatically increased scale.
Drawing on expert opinion and validated scientific
information, it is designed to provide everyone involved in delivering
preventive
action to pupils, whether they work in schools or whether they are
involved from the outside, with materials and with advice on the
approach to
take.
- Emphasis
is also being placed on nutritional education. This is a part of the new focuses
defined in the second National Plan for
Nutrition and Health and will supported
by an interministerial circular containing recommendations on the food that
should be made
available at school and on how to combat obesity.
- Finally,
the intention is to extend training on first aid, which has already begun in
schools, to secondary schools and lycées.
- Because
health problems, inadequate healthcare and social difficulties can hinder or
block learning processes, it is indispensable
that the school environment should
safeguard the well-being of all pupils and should be able to meet the challenge
of achieving early
identification of health problems that could have
consequences for their schooling. To make this possible, the above-mentioned Law
of 5 March 2007 makes it compulsory for all children in the sixth, ninth,
twelfth and fifteenth years to have a medical examination
intended to take stock
of their state of physical and psychological
health[125].
- On
similar principles, a thorough interview on social issues will be carried out
with pupils identified by the school community, outside
partners or both, in
order to identify as early as possible children at risk or whose circumstances
place them in danger.
- Needs
identified on that basis will then be addressed effectively, by making
arrangements for the advice given to families to be followed
up, linked with
care networks and with support from the national educational welfare services
(for the judicial district or secondary
school) or another welfare service, and
by establishing care arrangements for pupils with a disability or long-term
illness.
- Law
No. 2005-380 of 23 April 2005 on the orientation and programming of the
future of schools takes account of the magnitude of the
tasks that this entrusts
to nursing staff within the educational community and sets time limits by when
each secondary school or
lycée will benefit from the services of a
nurse, so that, among other things, a programme of health education and
prevention can be put
in place in collaboration with the teaching staff.
- In
this respect, the Committee concluded in 2004 that the means allocated to school
medicine were insufficient (para. 45). It is worth noting here that,
since 1998, the complement of nursing staff has been strengthened by 1,404
employees and 190 full-time
equivalent posts, which has allowed an increase in
average ratio of nursing staff to pupils to be increased from one to 2,370
pupils
in 1997 to one for 1,840 pupils for the school year 2006-2007.
- A
similar effort has been made in relation to school doctors: when the Ministry
of Education assumed responsibility for the schools
health service in 1991, it
had one doctor for 8,300 pupils. Since then, increasing the doctor: pupil ratio
has been a priority aim.
Hence, for 2006-2007 the ratio for the school year
2006-2007 is one doctor per 7,481 pupils.
- The
growth of financial allocations for health in schools illustrates this
progression. In the implementation of the institutional
Law on finance
legislation, allocations for health in schools have been grouped together within
a specific action heading (action 2) in
the programme on “Life as a
Pupil”. An appropriation of €332.35 million was included under
this head in the budget for 2006:
- – €327.34
million for staff costs (doctors and nurses);
- – €3.806
million for working expenses (temporary staff costs); and
- – €1.173
for investment costs (subsidy to local authorities).
- Allocations
for the implementation of the programme of schools and pupils’ health,
included in action heading 2 in the programme
on “Life as a
Pupil” reached €344.96 for the 2007 budget:
- – €334.82
million for staff costs (doctors and nurses). At the beginning of the school
year in 2007, 300 full-time equivalent
posts for nurses were created, pursuant
to the provisions of the Law of 23 April 2005 on the orientation and programming
of the future
of schools, referred to above;
- – €2.45
million in travel costs for mobile school health staff; and
- – €7.69
million as a contribution to spending on school health by local
authorities.
- Finally,
in each secondary-level teaching establishment, a committee for education on
health and civics is proposing an educational
action plan to encourage pupils to
be aware and think in a way that is likely to promote responsible choices of
behaviour at both
individual and collective
levels[126].
3. Adolescent health policies
- In
2004, the Committee recommended that France should intensify its efforts to
promote adolescent health policies and, in particular,
to develop a mental
health programme and services for adolescents which include specialized
psychiatric services (paras. 43 and 45).
- The
plan “Psychiatry and Mental Health” responds to this concern:
it defines focuses for action on psychiatry and mental health for the period
2005-2008 and establishes an
ambitious and diverse programme of action aimed at
strengthening psychiatric care arrangements for children and adolescents. A
national
committee which is responsible for the implementation of the plan is
ensuring that these actions are carried out effectively. Over
the five years of
the plan, a total of €25.65 million will be allocated to child psychiatry.
- The
first priority is to develop hospital capacity for full child and juvenile
psychiatric in-patient care, especially in départements where it
is lacking at present, in keeping with the levels of need that have been
identified in each region. In parallel, specialized
hospital units for the
in-patient care of adolescents are being progressively set up at the level of
the département and/or region to allow for care arrangements
tailored to the types of disturbance typically encountered in this age group.
- The
plan also presses for the strengthening of geographical coverage provided
through mobile care networks so as to offer young people
suffering from
psychiatric disturbances solutions delivered close to where they live and an
alternative to hospitalisation. This
strengthening aims to help adolescents gain
access to preventive care and to treatment.
- These
provisions must also mesh with the programme for the creation of
adolescents’
centres[127], launched at
the conclusion of the Conference on the Family of 29 June 2004. This programme
is for the establishment of single locations
for the accommodation and care of
adolescents and their families and the professionals working alongside them,
based on a partnership
between the different players involved from the various
medical, social, educational and judicial services involved with adolescents.
The aims of these new structures and financial and operational arrangements for
them were established in January 2005 and a partnership
agreement has been
signed between the State and the Foundation Hôpitaux de Paris –
Hôpitaux de
France[128]. The State
has made arrangements to make substantial amounts of finance available to secure
support for the development of about 75
adolescents’ centres by the time
the programme has been in operation five years. The evaluation of the projects
and monitoring
of their implementation are carried out by a steering committee
which brings together the different partners in the administration
and financing
of the programme.
- In
2006, €1.4 million has been allocated to six regions, allowing medical and
paramedical teams for ten new bodies to be set
up. Twenty-three new projects
have been selected for 2007 and almost €3 million has been distributed to
12 regions to support
the development of new teams capable of offering
adolescents and their families a service which is tailored as closely as
possible
to their needs and expectations.
4. Other policies for the health of minors
Drugs
- In
2004, the Committee encouraged France to continue and expand its activities in
the area of prevention of substance abuse and to
support rehabilitation
programmes dealing with child victims of drug abuse (para. 57).
- The
Government’s Plan for 2004-2008 against illegal drugs, tobacco and
alcohol, which gives a major role to prevention, responds
to this concern. It
pursues the aim of creating favourable conditions for prevention of a kind which
is effective and well adapted
to school education at all levels, by mobilizing
all the forces in society who are involved (teachers, police officers, care
providers
etc.) and by drawing support from permanent professional arrangements.
- As
part of this effort, a comprehensive programme has been put in place to prevent
cannabis consumption: a campaign or information
and communication, a programme
for action in schools and socio-medical consultations tailored to young users
and their associates.
From 2007 onwards, these consultations will be made
permanent as part of the arrangements for the establishment of centres for
treatment,
support and prevention of addiction, a legal merger of specialist
arrangements to deal with alcoholism and drug addiction. Those
opened in
hospitals will be integrated with the services for the treatment of addiction
established under the plan for 2007-2011
for preventing and dealing with
addiction.
- In
addition, police anti-drug training officers are training their colleagues in
specialized techniques for combating dealing and
drug addiction, and are
delivering such training to a wide variety of recipients.
- In
general, medical and socio-medical care for minors is provided through
healthcare arrangements. The plan, “Addiction”
envisages the
allocation of €77 million per year to strengthen and co-ordinate existing
arrangements and to extend resources
to all stages of care arrangements for
people with addictions.
Alcohol
- France
has a range of legislative and regulatory weapons designed to combat the
consumption of alcohol by minors and prevent risks
of dependence.
- It
is forbidden to sell alcohol or to provide it free to minors under 16. This
prohibition is absolute for minors
under[129] and limited to
the most alcoholic
drinks[130] for minors aged
between 16 and 18[131]. The
act of making a minor drunk is also an
offence[132]. In addition,
drinks outlets are not allowed to admit unaccompanied minors under the age of
16[133], or to employ a
minor or take a minor as a
trainee[134]. Finally,
advertising of alcoholic drinks is forbidden on television, in young
people’s publications and on radio at peak listening
hours (after 7am on
Wednesdays and after 5pm on other
days)[135].
- All
these prohibitions are backed by criminal penalties: they are punishable by a
fine, or by imprisonment in the case of a second
or subsequent offence, or even,
in the case of drinks outlets, by closure. The Law referred to above of 5 March
2007 on the prevention
of delinquency has also introduced two supplementary
penalties for persons who commit the offences dealt with in Articles L.3342(1)
and L.3353(4) of the Public Health Code referred to above: withdrawal of
parental authority and compulsory completion of a training
course on parental
responsibility.
- Information
campaigns which are required to include preventive and educational messages are
also carried out as a part of measures
against risks from alcohol (article L.
3311-3 of the Public Health Code).
-
Nevertheless, the French Government remains concerned to achieve better
observance of the prohibition on the sale of alcohol to minors
and to harmonize
its legislation with its principal European partners. For example, higher
taxation of the sale of
alcopops[136], implemented
in 2005[137], has
brought about a considerable reduction in the market for these products, and,
through a knock-on effect, in that for wine-based
or cider-based drinks although
they were not subject to the measure.
- Widespread
public consultations on alcohol were held in the French regions in the autumn of
2006. Citizens who were consulted recommended
the strengthening of regulation
aimed at protecting young people against risk from alcohol (prohibition of sale
to under-18s, banning
of “open bars” and aggressive sales
promotions). Still more recently, the National Road Safety Council has proposed
that
priority should be given to measures against drink-driving. It is proposed
in particular that medical consultations on binge drinking
at celebrations
should be made available to young people in centres for the treatment,
assistance and prevention of addiction, that
more should be done to detect
at-risk levels of consumption among young people, especially at school, and also
that more effective
action should be taken to put an end to aggressive
commercial practices which target young people.
Tobacco
- France
has a number of legislative and regulatory weapons aimed at combating the
consumption of tobacco as effectively as possible,
particularly among young
people[138].
- “Self-service”
sales, sales from machines or remote sales of tobacco are prohibited in France,
as, in the metropolitan
territories, French Customs have a monopoly over retail
sales of tobacco. Customs exercise the monopoly through outlets designated
as
agents, who are liable for the payment of duty, as authorized buyers and sellers
or as authorized
sellers[139]. It is
compulsory for tobacco products to be kept behind the counter by the retailer,
who is the only person authorized to pass them
to his customers.
- The
sale of tobacco to those aged under 16 is prohibited since the enactment of
Law No. 2003-715 of 31 July 2003 aimed at restricting
the consumption
of tobacco by young
people[140]. Decree
No. 2004-949 of 6 September 2004 sets out arrangements for its
implementation. Licensees in breach of them are subject to
the fines provided
for in relation to offences in the second category (up to
€150)[141].
- Tobacconists
must put up a poster in their establishment reminding readers of this
prohibition and may ask purchasers for documentary
proof of identity or for any
other document constituting proof that they are at least 16 years of age.
- Since
2004, the resale of tobacco has also been prohibited at cultural and sporting
events (Decree and Order of 16 January 2004, restated
in Decree
No. 2007-906 of 15 May 2007).
- Other
provisions are intended to prohibit advertising or promotion, whether direct or
indirect, of tobacco[142],
along with free distribution or sale at a promotional price of any tobacco
product, contrary to the aims of public
health[143]. The packaging
of tobacco, tobacco products and cigarette papers must also include both a
general and specific health message (details
of which were set by the Order of
27 May 2004)[144].
- Breaches
of these arrangements are punishable by a fine of €100,000. In the event
of prohibited promotion or advertising, the
maximum fine may be increased to 50%
of expenditure on the illegal activity. In the case of a second or subsequent
offence, the court
may prohibit the sale of products which were the subject of
the illegal promotion or advertising for a period of from one to five
years[145].
- In
parallel, Law No. 2004-806 of 9 August 2004 on public health policy put in
place fiscal arrangements to combat the promotion of
tobacco products. Under
this provision, a reference price has been established below which cigarettes
may not be sold. This provision
contributes to preventing the spread of
addiction to tobacco through very low prices, to which young people are
particularly susceptible.
- In
addition, regulation of the sale of packets of cigarettes has been reinforced by
Law No. 2005-842 of 26 July 2005 for confidence
and the modernization of
the economy[146]. Thus, the
sale, distribution or giving of packets of less than 20 cigarettes and of
packets of more than 20 cigarettes that are
not composed of a number of
cigarettes divisible by 5, as well as of containers of less than 30 grammes of
fine cut tobacco for rolling
cigarettes, whatever their packaging, are
prohibited.
- Finally,
awareness-raising in relation to risks from tobacco use is provided for, in a
compulsory form, as part of health education
in classes in primary and secondary
schools[147]. The National
Institute for Health Protection and Education, which is responsible to the
Ministry of Health, supports two programmes
under which many local activities
for the prevention of tobacco use are carried out in each region:
- – invitations
for the submission of applications for finance for tobacco or alcohol projects,
the aim of which is to contribute
to promotional and education activities on
health and tobacco use, particularly in schools;
- – “Tobacco
and Young People at Work”, an initiative whose aims are:
- – to
reinforce health education in France, and especially to prevent tobacco
use;
- – to
increase and diversify action on tobacco use, with support from networks of
Health Insurance Funds and Health Education
Committees; and
- – to
achieve stronger alignment between action at national and local levels and to
form networks of local participants, pursuing
aims that are consistent with
those of national health programmes.
- At
the national level, three kinds of action, financed by the public authorities
among others, are being taken by associations, based
on involving children and
adolescents:
- – “Pataclope”
clubs run for children by the National Anti-Cancer League;
- – a “Non-Smoking
Classes” competition intended for adolescents aged 12-13; and
- – a
campaign and national scenario competition “My first cigarette?
Never!”, organized by the Cardiology Federation
for children aged between
8 and 15.
Adolescent pregnancies
- To
reduce the incidence of unwanted pregnancies, especially among adolescents -
which remains, as the Committee noted in 2004 (paragraph
44), a major
concern for the Government - it has been decided to permit the distribution of
emergency contraception in pharmacies
and school
establishments[148]. There
are two products for emergency contraception, one on prescription, the cost of
which is eligible for reimbursement, and the
other unprescribed and not eligible
for reimbursement. Used in emergencies, they will allow a number of unwanted
pregnancies and
voluntary terminations of pregnancy to be avoided. Girls have
free and anonymous access to them. Health professionals have been made
aware of
the special factors that arise when delivering care to adolescent girls
requesting prescription of contraceptives.
- National
campaigns of information and awareness-raising on questions of contraception are
also organized regularly. In 2000, adolescent
girls were the priority audience,
with help from the media. In 2002, the general public – men as well as
women - was the target
audience, along with professionals.
- A
new campaign will be launched in September 2007, lasting three years. Once
again, it will target adolescents, including those who
are no longer at school,
young women, and health professionals. The national objective is to get women
and couples to choose the
mode of contraception that suits them best.
Suicide
- The
prevention of suicide has been a public health priority since 1998. In 1999,
10,268 deaths by suicide were recorded in France,
a minority of which
involved young people: 30 deaths in the age-group 5-14 and 604 among 15-24
year-olds. Despite a slight reduction,
about 10,000 suicides a year are still
being recorded.
- Suicide
by young people has fallen slightly since 1993: it is down by 5.5% for 15-24
year-olds compared with 2% for all
ages[149]. It is
nevertheless the second largest cause of death among 15-24 year-olds and 7% of
suicides occur among those aged under 25. It
affects mostly boys (78% of deaths
by suicide) and increases progressively with age (more markedly for men than for
women).
- Out
of about 160,000 attempted suicides recorded each year, about 7% are by
adolescents aged between 11 and 19, most of them girls.
Hospital emergency
services, however, especially in paediatrics, have for several years observed an
increase in the number of young
children (from the age of 11) hospitalized as a
result of attempted suicides.
- The
second Strategy for Action against Suicide, which is due to be set in 2007, must
strengthen arrangements for preventive action
in this area.
D. THE RIGHT TO SOCIAL SECURITY (ARTICLE 26)
1. Health insurance
- Universal
health cover, introduced in 2000, replaced the earlier system of personal
insurance. It forms part of arrangements to combat
exclusion and seeks to
eliminate the obstacles and difficulties encountered by many people in gaining
access to treatment. Accordingly,
it provides a right of access to treatment and
to reimbursement for every person resident in France who is not already covered
by
a compulsory regime and, consequently, does not have the right to benefits
from the health insurance system. At 1 July 2006, 1.7
million people were
benefiting from universal health cover.
- People
on low incomes can also benefit from supplementary universal health cover, which
provides for them to be covered for 100% of
a large part of their spending on
healthcare with no requirement for payment in advance.
- Persons
whose status is unlawful who have been resident in France for more than
three months are able to benefit from State medical
aid.
2. Family Allowances
- Several
of the family allowances mentioned in France’s second report have been
abolished, replaced or changed in order to rationalize
them and improve their
effectiveness.
- The
Committee regretted in particular in 2004 that the payment of allowances to
families should be linked to the modalities of the
child’s entry into
French territory (para. 47).
- The
French Government confirms that the allocation of family allowances to parents
is still subject to the legality of the residence
in France of the children for
whom they are responsible and on whose behalf the allowances are applied
for[150]. It points out
that regularity of residence is most often, but not automatically, linked to the
regularity of entry to French territory.
- Children
must be born in France or have entered in regular fashion through a process of
family reunification or be the child of a
holder of the residence permit for
“Private and Family Life” dealt with at paragraph 7 of
article L. 313(11) of the Code on the Entry and Residence of Foreigners and the
Right of Asylum, unless
they come within special circumstances as a family
member of a refugee, a child of a stateless person, a child of a person
benefiting
from subsidiary protection for applicants for asylum or as a child of
the holder of a residence permit issued to them in their capacity
as a
scientist.
- Article
L. 512(2) thus amends and clarifies the law and makes it more explicit without
substantially changing its content. It nevertheless
extends the benefit of
family allowances to situations which were not explicitly taken into account
previously by the Social Security
Code. This is the case in particular with the
children of refugees, stateless persons and those benefiting from subsidiary
protection,
children of holders of special residence permits issued to them in
their capacity as scientists and the children of persons whose
situation has
been regularized on the basis of the right to respect for family life.
- The
benefit of family allowances is guaranteed to five categories of children
against whom the rules on family reunification cannot
be invoked: apart from
children born in France, this concerns mainly children of refugees and those
with subsidiary protection.
These categories provide for situations in which,
when account is taken of the circumstances in which those concerned left their
countries, it is impossible, or not reasonably practicable, to apply the
conditions provided in the general law for family reunification
without
disproportionately prejudicing the right to family life.
2.1 “Maintenance allowances”
Family
allowances
- These
are provided starting with the second dependent child and vary in amount in
relation to the number of children and their age.
Flat-rate
allowance
- This
new allowance has been established to mitigate the financial loss suffered by
families with three or more dependent children,
who lose the benefit of part of
their family allowances because one or more children reach the age limit (20)
for payment of family
allowances. It consists of a flat-rate benefit paid for
one year.
Supplementary family allowance
- Since
1 January 1985, supplementary family allowance has been awarded, on a
means-tested basis, to families with at least three children,
all aged 3 or
over. The age limit for the payment of supplementary family allowance is now
fixed at 21.
2.2 Allowances linked to childbirth and infancy: the
“child’s arrival allowance”
- Child’s
arrival allowance has since 1 January 2004 progressively been replacing the
existing allowances linked to infancy and
the care of young children presented
in the second periodic report of France. Its object is to simplify and
strengthen direct assistance
to families for the employment of a childminder or
nanny. In effect it allows parents to benefit from an overall allowance
providing
financial support for the education and care that their children may
need, whether they opt for a mode of paid individual care or
whether they prefer
to reduce or cease their working activity to look after their children
themselves. It reflects and reinforces
the principle of varying the level of
assistance in proportion to income
levels[151]. This allowance
is composed of four elements as follows.
Birth or adoption
grant
- This
new grant is paid on a means-tested basis in the seventh month of pregnancy for
each child expected or at the time of the adoption
of a child aged under 20.
Basic allocation
- The
basic allocation of child’s arrival allowance, which comes after the birth
or adoption grant, is paid on a means-tested
basis from the first day of the
calendar month following the birth of the child until three years from that
date. Payment is conditional
on compulsory medical examinations being passed.
“Free choice” supplement for income forgone from employment and
optional “free choice” supplement for income
forgone from employment
- “Free
choice” supplement for income forgone from employment, which has replaced
the parental upbringing allowance mentioned
in France’s second periodic
report, is not subject to means-testing. It allows the parent to suspend his or
her working activity
or to reduce it in order to care for a child. This
allowance of €513 per month is paid starting with the first child and is
conditional on the parent having previously worked for two years within a
reference period which varies according to whether there
are older children and,
if so, how many.
- Families
with at least three children, of whom the most recent was born or adopted on or
after 1 July 2006 and one of whose parents
is no longer working or has
completely interrupted his or her work to look after the child, may opt for the
optional “free
choice” supplement for income forgone from employment
. Its payment is conditional on the parent having previously worked.
Where work
ceases entirely, it is paid at a level which is higher than the “free
choice” supplement for income forgone
from employment, but is paid for a
shorter period. The aim of this allowance is to avoid too substantial an
estrangement from economic
life by encouraging planning for return to work.
“Free choice” childcare supplement
- “Free
choice” childcare supplement [complément de libre choix du mode
de garde] is paid to households or persons who directly employ an approved
child-minder or a nanny to look after a child under the age of six.
This new
allowance, which covers the contribution of a part of the remuneration of the
person employed, is paid at full rates until
the child is three, and then at
reduced rates between the ages of three and six.
- “Free
choice” childcare supplement may also be paid when the family uses a
private organization to provide childcare.
In these circumstances, the family
pays the organization an overall price, without distinction as to contributions
and net salary.
The amount of assistance paid is thus set on an overall,
flat-rate basis.
2.3 Specific allowances
Back-to-school allowances
- Since
the beginning of the school year in 1999, entitlement to this allowance has been
extended to families with only one dependent
child. If household income exceeds
the ceiling provided by a small margin, a reduced back-to-school allowance,
calculated in proportion
to income, is paid.
Adoption
allowance
- Adoption
allowance has been abolished.
Allowance for the upbringing of
children with a disability
- Allowance
for the upbringing of children with a disability has replaced special upbringing
allowance since 1 January 2006. Its basic level in 2007 amounts to
€119.72 a month, to which a supplement may be
added[152] owing to the
seriousness of the disability and the expenses falling on the family being such
as to cause the partial or total cessation
of work by one of the two parents and
call for recourse to the engagement of a paid third person. An increase may also
be paid to
a sole parent who benefits from this supplement.
- Law
No. 2005-102 of 11 February 2005 on equality of rights and opportunity and
the inclusion and citizenship of disabled persons also
allows access to the new
compensation payment for the families of children with a disability in respect
of arrangements in the home
and the adaptation of vehicles. With the aim of
suiting the applicable legislation to adults and children, this allowance is to
cover
other aspects of child disability in 2008.
Daily parental
attendance allowance
- Daily
parental attendance allowance has replaced parental attendance allowance since
1 July 2006. It allows a parent who benefits
from parental attendance leave
for a child who suffers from a serious illness to interrupt his or her work from
time to time. The
person concerned benefits from an allowance of 310 days’
leave, paid for on a daily basis, to be taken over three years.
2.4 Single-parent and related allowances
- Single
parent’s allowance and family support allowance continue unchanged.
VII. EDUCATION, LEISURE AND CULTURAL ACTIVITIES
A. EDUCATION, INCLUDING VOCATIONAL TRAINING AND GUIDANCE
(ARTICLE 28)
- Law
No. 2005-380 of 23 April 2005 on the orientation and programming of the
future of schools reaffirmed the principles on which the
French system of
education is founded.
- Education
is the top national priority and the State education service must contribute to
equality of opportunity.
- In
addition to imparting knowledge, the first task of schools is to make pupils
share in the values of the Republic.
- The
right to education is guaranteed to all in order to permit them to develop their
personalities, to raise their levels of initial
and continuing training, to
achieve inclusion in society and working life and to exercise their civic rights
and obligations.
- To
guarantee this right in a way which respects equality of opportunity, assistance
must be provided to pupils and students according
to their resources and merits.
The way in which the means of the public education service are shared takes
account of differences
in circumstances, especially in economic and social
matters.
- All
young people are entitled to acquire a general education and a recognized
qualification, whatever their social, cultural or geographical
origins.
- Compulsory
school education applies to pupils from the age of 6 to 16.
- It
must be possible for each child to be cared for from the age of three in an
infants’ school or infants’ class which
is as close as possible to
home, if his or her family request it.
- Children
in secondary schools and lycées can benefit from financial
assistance to meet the expenses of schooling and school life.
- The
right to educational and vocational information and guidance forms an integral
part of the right to education. Law No. 2005-380
of 23 April 2005 on the
orientation and programming of the future of schools provides that “the
guidance and training provided to pupils shall take account of their
aspirations, aptitudes and prospects for working life
in connection with the
likely needs of society, the economy and the management and use of the national
territory. Within this framework,
pupils shall make plans for the direction that
their school and working life should take with the help of parents, teachers,
advisory
staff and other appropriate professionals. The public services
involved, local authorities, professional organizations, businesses
and
associations shall contribute to this process”.
- Openness
towards the international and European dimensions of education is being further
emphasized, with the aim of strengthening
the teaching of relevant subjects.
- Within
this framework, the Government has developed further the policies it had
previously applied for school establishments which
provide for pupils presenting
social and educational difficulties, as set out in its previous periodic report.
- A
plan for the relaunch of primary education has been implemented in 2006 with
action at various levels. It calls in particular for
the setting-up of a network
to support educational success based on bringing particular schools together in
a federal relationship
with partners (including the local authorities) centring
on a project plan. This project plan is given formal status by a contract
concluded with the academic authorities. Partnerships that fit the local context
can then be freely chosen to allow schools within
the “Network for
Ambition and Success” to make themselves a part of their local scene
and to bring into play the complementary potential of partners from the
cultural,
sports, scientific and local authority sectors. It also allows pupils
access to resources that are available close to where they
live.
- To
ensure that this policy is implemented successfully, the Government has made
extra resources in the form of posts and of finance
for teaching programmes
available to primary schools and secondary establishments which have signed up
to “Networks for Ambition and Success” through a
“Contract for Ambition and Success” and to “Networks
for Successful Learning” through a “Contract for Learning
Objectives”.
- In
addition, the support given to pupils in difficulty requires that schools should
make themselves more capable of tailoring their
courses more closely to
individuals’ needs and of encouraging their talents.
- The
Law of 23 April 2005 provides the headmaster or the head of an establishment
with the ability to establish a personalized programme
for educational success
when a pupil is at risk of not acquiring in time the indispensable knowledge and
competences that must be
mastered by the end of an academic phase. He or she may
propose a programme to the child’s parents at any point during compulsory
education. The aim of this arrangement is to induce the whole of an age group to
master the knowledge and competences which make
up the Common Base before the
end of compulsory education. It operates equally as a preventive measure against
learning difficulties
with the aim of avoiding the need for a year to be
repeated, and as a means of support during a repeated year when it has not been
possible to avoid this.
- Educational
establishments are also encouraged to create many more opportunities for pupils
to find out about the training and vocational
courses available to them and make
them aware of the prospects offered by higher education. For example, optional
courses on discovering
the world of work may be bought forward to classes at
level four. Fourth and third level pupils at establishments for priority
education
have the benefit of an individual careers advice interview, organized
each year. In “Networks for Ambition and Success”,
partnership with a cultural institution, an élite sports centre, a
university laboratory or research unit, or with a particular
personality, can
contribute to opening schools up to the life of society, give a concrete
dimension to teaching and foster broad
careers choices (general and technical
lycées, professional lycées, apprenticeship training
centres etc).
- In
parallel, the number of competitive scholarship awards has been increased since
the beginning of the school year in 2006 to provide
encouragement to pupils of
colleges in “Networks for Ambition and Success” who have
gained a distinction in the occupational diploma and to scholarship pupils in
priority education who have made outstanding
efforts in their school work during
level three.
- Measures
designed to make access easier to compulsory courses of professional training
have been established for pupils at level three,
in professional
lycées or in post-baccalauréat training: businesses
in the same travel-to-work area which have signed up to operation
“Objective: Work Experience”
commit themselves, on the basis of a
relationship of trust with schools, to take on young people who have not been
able to find a
work experience placement themselves.
- The
Charter for Equality of Opportunity in Access to Elite Training completes these
support arrangements: 100,000 students from the
grandes écoles
and universities commit themselves to provide support to 100,000 pupils in
priority education in their studies. The Ministry of Education
gives wider
support to all mentoring projects which allow a lycée student to
give support to a pupil at a secondary or primary school in the course of the
school year.
- So
that this policy can be fully effective, the Government is anxious to increase
the involvement of parents in activities for providing
information and for
education in school and to bring arrangements for out-of-hours school activities
into better alignment with the
Networks project (help with homework, invigilated
study, local contracts for learning support etc.).
- Other
arrangements have been introduce to combat exclusion from school, (for example
relief classes[153]),
calling on the combined capabilities of the national education service,
the judicial system and other public services, and to prevent children from
leaving school without
qualifications, in particular by strengthening the
measures taken by the Taskforce for
Inclusion[154].
B. AIMS OF EDUCATION (ARTICLE 29)
- In
keeping with the principles and aims set by the Convention, the Law of 23 April
2005 on the orientation and programming of the
future of schools asserts that
the fundamental tasks of the French educational system are to ensure the success
of all pupils, to
provide better guarantees of equality of opportunity and to
promote the inclusion of young people in work. In particular, in the
framework
of compulsory school education, the Law allows for the acquisition of a common
base of knowledge and competences which
are indispensable for every pupil
“to complete schooling successfully, to continue with training, to
build a personal and working future and to live successfully
in
society”.
- In
addition, the importance of education for citizenship has been reaffirmed and
defined. It is provided, in the new programmes at
the primary level, as
much as in secondary schools or lycées, within the framework of
courses on civic education or in legal and social disciplines. The common base
of knowledge and competences
provides among other things for a humanistic and
scientific culture which allows the free exercise of citizenship.
- Education
in citizenship takes the form of passing on, not only knowledge and values, but
also practices and modes of behaviour. The
Committees for Health and Civic
Education mentioned above have been set up in establishments to give practical
expression to this
learning experience, centred on a defined educational
project. Progress with them should allow these themes to be taken into account
in a wide variety of ways at the heart of the school system. Similarly, national
programmes for raising awareness, spread throughout
the school year, are an
ideal opportunity to increase levels of responsibility among pupils through
concrete action as citizens.
These “courses in civic life” place
value on investment for the long term and aim to secure coherence between the
various
modes of education for citizenship and the commemoration of events
throughout the year, to provide a structure for the coordination
of existing
initiatives in order to make them easier to understand, and to bring together
the various parties involved (institutions,
foundations, associations and local
authorities) around a focus of joint action.
C. LEISURE, RECREATION AND CULTURAL ACTIVITIES (ARTICLE
31)
- The
right of a child to rest and leisure recognized in Article 31 of the Convention
also appears in the French Constitution of 4 October 1958, the preamble to which
refers to the preamble to the Constitution of 1946, the 11th
paragraph of which states that the Nation “guarantees to all,
including children, mothers and elderly workers, the protection
of health,
physical security, rest and leisure”.
- It
is this right which, subject to a proviso relating to the effective exercise of
citizenship, and more generally to the need, which
is seen as a national
imperative, to combat exclusion, is guaranteed by article 140 of Framework Law
No. 98-657 of 29 July 1998 for
combating exclusion, under the terms of
which “equality of access for everyone, throughout life, to culture, to
participation in sport, to holidays and to leisure constitute a national
objective”. The same article specifies that “this objective
shall be achieved especially by the development, with priority given to deprived
areas, of artistic, sporting
and cultural activities, the promotion of training
in the area of group leadership and pre-and-post-school activities and of action
to raise the awareness of young people attending collective holiday and leisure
arrangements. It shall be achieved also through the
development of structures
for tourism of a social and family nature and through arrangements making
provision for people facing situations
of exclusion to go on holiday.”
- As
the “Great Debate” launched in preparation for the 2007 Conference
on the Family on the question of how children can
blossom outside school hours
attests, the issue of the right to leisure remains a current preoccupation or
the French Government.
- Each
year, during the school holidays and outside school hours in term-time, more
than 4 million children and young people are received
in almost 30,000 places of
holiday accommodation and 33,000 leisure
centres[155]. The special
quality of these collective arrangements is that they are organized around an
educational project that is specific to
each organizer and to each team
involved. Each of these arrangements must be registered with the public
administrative services.
- Almost
1.1 million children go each year on organized trips, arranged in particular by
large federations for the care of children.
Social centres also play a part in
the care of children during their leisure time.
- After
gathering views from many experts, the working group tasked with studying the
theme: “Time for families, time for children: spaces for
leisure” submitted its report to the Minister for the Family on 10
April 2007.
- The
analysis in the report confirmed how acute this question is: whilst 95% of
parents questioned[156]
regard education as having an important place in their children’s leisure,
in the general sense of the term, they also expressed
a certain disquiet and
real expectations, relating among other things to the difficulty of reconciling
the timeframes of work with
those of transport and
school[157].
- In
this connection, six proposals have been drawn up to improve access for all
children to leisure, to make the socialisation of older
adolescents easier by
integration in the field of group leadership and by improving the information
available to families. They can
be summarized as follows.
- – Making
it easier for children to go on holiday (27% per year do not go at present), and
supporting the supply of leisure provision.
A study should be launched on the
harmonization of financial assistance to families for children and holidays,
among other things
to examine the creation of a “Free-Choice Holiday
Allowance” (“allocation de libre choix vacances”) to permit
families to allow their children to go on holiday for at least one week a year
in the school holidays
- – Guaranteeing,
on every possible occasion, access for young people with a disability to leisure
activities, in liaison with
the Departmental Centre for Disabled Persons as
regards setting conditions for admission and seeking finance.
- – Making
the Diploma in Group Leadership (brevet d’aptitude à la fonction
d’animateur) easier to acquire
by reviewing the criteria for the
allocation of financial assistance for this training, and to make it a lever for
achieving success,
inclusion and integration for young people in the city.
- – Rationalizing
regulatory arrangements and making them more accessible by bringing together in
one publication all the regulations
and requirements which deal with the
accommodation of young people and adolescents.
- – Making
access easier for families to information on the leisure and holiday services
available, by pulling together information
which is currently dispersed and
making educational project plans more readable.
- – Launching
a national communication campaign on group holiday accommodation, in order to
remove certain (mainly psychological)
obstacles to holiday trips by children.
- Some
of these proposals are inspired by innovative practices highlighted by work on
the report, such as educational projects which
place particular value on
participation across the generations or which involve modifying the timing of
school life to encourage
extracurricular activity or helping to improve the
integration of young people in a situation of exclusion by means of sporting or
cultural activities[158],
and even through the acquisition of the Diploma in Group Leadership.
- As
examples, the programme “Eager to Act (“Envie
d’agir”) encourages young people to take the initiative and get
involved by providing them with help with working methods and finance: nearly
500 projects by minors have been supported in 2006 under this arrangement. Since
2004, operation “Summer Solidarity”
(Solidar’été) has contributed to 10,000 young people
going on holiday, starting from the basis of an organized supply of facilities:
10,000 young
people are benefiting from this programme.
- Local
authorities have themselves also developed a large number of arrangements to
provide support for free time activity. This diversity,
together with the degree
of flexibility that the arrangement provides and the authorities’
closeness to the people they serve,
allows arrangements to be better tailored to
the reality of the varying situations across the country.
- As
referred to by the French Government in its previous report, arrangements for
the regulation of care provided for minors outside
the parental home, including
short-term stays, are being remodelled. Apart from taking better account of
changes which have occurred
in needs, in the activities on offer and in types of
accommodation, this reform, which is being carried out by the ministry
responsible
for young people, aims to provide the representative of the State in
each département with better means of control in both
administrative terms and in relation to the criminal justice system in order to
provide improved
protection for minors.
- Present
regulatory arrangements are intensive and can be summarized under four principal
themes: the protection of minors; the framework
for the organization and
promotion of activities, including physical activities; security in places where
minors are accommodated;
and food safety.
VIII. SPECIFIC MEASURES FOR THE CARE OF MINORS
A. UNACCOMPANIED FOREIGN MINORS (ARTICLE 22)
- For
several years, the arrival of unaccompanied foreign minors or their presence in
French territory has prompted many questions.
In response to recommendations
made by the Committee in 2004 (paragraphs 50 and 51), France has pursued its
efforts in particular
to make better arrangements for the care of these
children, to guarantee them better access to basic services and to allow them,
where circumstances so require, to return to their country of origin under the
best conditions.
- In
relation to measures of protection, it is helpful to distinguish between
unaccompanied foreign minors at the frontier and unaccompanied
foreign minors
within French territory.
1. Unaccompanied foreign minors at the frontier
- Examination
of the circumstances of unaccompanied minors below the age of eighteen who have
no legal representative and who request
admission at the frontier must be
carried out within a framework which provides for every guarantee, as vulnerable
persons are involved.
At the same time, the authorities must be vigilant and
exercise careful oversight as these children must not be exposed to the risk
of
becoming victims of rings for forced labour or prostitution.
- A
foreign minor at the frontier benefits from the presumption of his or her
minority. However, in the event of significant doubt as
to minority,
investigations may ensue in order to determine his or her age with the greatest
possible degree of accuracy. In this respect, and in response to
recommendation 51b, the indications are that, in the current state of
scientific knowledge, clinical observations as to puberty and bone tests are the
only evidence on which the administrative and judicial authorities can rely to
establish age. The French authorities nevertheless
remain attentive to all
scientific developments in this area and are prepared to adopt other methods if
judged more workable by the
scientific community.
- Whilst
the law, as regards entry to French territory and asylum at the frontier,
applies to foreign minors on the same terms as to
foreign adults, account is
nevertheless taken of their specific circumstances.
- Article
L. 221(1) of the Code on the Entry and Residence of Foreigners and the Right of
Asylum provides that a foreigner who has arrived
in France, and who either is
not authorized to enter French territory, or applies for admission on the basis
of asylum, may be kept
in a holding area for the time necessary for his or her
departure or for his or her application for asylum to be examined. Keeping
the
person in the holding area is an administrative decision taken by the police
services and its duration may not exceed four days
(forty-eight hours, renewable
once). Beyond this limit, keeping the person in the holding area must be
authorized by a liberty and
custody judge for a maximum duration of eight days,
renewable once.
- Since
the entry into force of the Law of 4 March 2002 referred to above, the rights of
foreign minors without a legal representative
are secured by an ad-hoc
administrator, designated without delay by the public prosecutor, when an
unaccompanied minor is not authorized
to enter France or when he or she applies
for asylum. The administrator is responsible for assisting the minor and
securing his or
her representation in all judicial and administrative procedures
relating to his or her stay in the holding area and to entry to
French territory
(article L. 221(5) of the Code on the Entry and Residence of Foreigners and the
Right of Asylum). So that the administrator
can be appointed as soon as possible
after the minor arrives in the holding area and can take action as effectively
as possible,
Law No. 2006-911 of 24 July 2006 on immigration and
integration (art. 48) has specified at article L. 221(5) that the public
prosecutor[159] must be
informed “immediately” by the administrative authorities.
- The
ad-hoc administrator is chosen from a list in which associations for child
protection feature extensively. Before they exercise
their functions, ad hoc
administrators undergo training including a theoretical and a practical
component, based in particular on
case studies and on meetings with
professionals with a part to play in this area. In addition, a full-time
helpline for ad- hoc administrators
is organized at the premises of the French
Red Cross to deal with any requests they may make for help.
- The
available data on minors placed in the holding area are as follows.
|
2005
|
2006
|
2007 (1)
|
Total : Metropolitan France
|
15802
|
15594
|
|
Of which: unaccompanied minors
|
709
|
600
|
374
|
Female accompanied minors
|
|
282
|
188
|
Female unaccompanied minors
|
|
267
|
166
|
Male accompanied minors
|
|
253
|
182
|
Male unaccompanied minors
|
|
333
|
208
|
Total : Overseas Départements and Collectivities
|
502
|
379
|
|
Of which: unaccompanied minors
|
10
|
7
|
3
|
Female accompanied minors
|
|
3
|
66
|
Female unaccompanied minors
|
|
6
|
1
|
Male accompanied minors
|
|
2
|
66
|
Male unaccompanied minors
|
|
1
|
2
|
(1) : at 31 July 2007
|
|
|
|
- Specially
tailored arrangements have been made for the treatment of unaccompanied minors
who do not satisfy the conditions for entry
into France and are refused entry.
Indeed, several approaches are made in advance by the frontier police in an
effort to find members
of their family in their country of origin and to satisfy
themselves that the child will be expected on return. For example, a contact
is
made with the representative of the Technical International Police Cooperation
Department with local responsibility so that a
member of the child’s
family can take charge of him or her on arrival.
- When
an unaccompanied foreign minor is authorized to enter French national territory,
he or she is cared for immediately on arrival
in the holding area by specific
organizations that ensure that he or she is monitored and protected (care
facilities or reception
and guidance centres) under the oversight of the
judicial authorities (the public prosecutor’s office and the
Children’s
Judge).
- In
September 2002, the State opened an institution in Ile-de-France specifically to
deal with unaccompanied foreign minors. Run by
the Red Cross, the Taverny Care
and Advice Centre accommodates around 30 minors when they leave the airport at
Roissy, looking after
them for a period of two months on average in order
to assess their situation and prepare appropriate guidance on next steps:
passing
the child to a family member in France or a neighbouring country, a
longer placement in the framework of the children’s social
services or
repatriation to their country of origin.
2. Unaccompanied foreign minors inside French
territory
- It
is important to offer legal guarantees to unaccompanied minors located inside
French territory, and to provide them with the most
satisfactory material
conditions possible for their care.
2.1 Legal guarantees
- Article
L.313(11) 2a of the Code on the Residence and Entry of Foreigners and the Right
to Asylum[160] provides for
a temporary residence permit for “Private and Family Life” to
be issued to a foreign minor entrusted to the care of the
children’s social services from the age of 16 and who can show
justification for
enrolment in a course which he or she wishes to pursue for
integration into the labour market, conditional on the nature of his or
her
links with the family which remains in the country of origin and on the views of
the care service which is looking after the
foreigner on his or her integration
into French society.
- A
temporary “Student” residence permit also may be issued to a
foreign minor who has followed a school career in France since at least the age
of sixteen
and who is pursuing higher education (or a course of training) there,
provided that he or she can demonstrate its real and serious
nature
(art. L. 313(7) of the same
Code[161]).
2.2 Improving conditions for care and custody
- Various
measures work in combination to improve care arrangements for unaccompanied
foreign minors.
- In
Paris, experimental arrangements for the emergency reception and care of
unaccompanied minors were set up in 2002 as part of policies
for combating
instability and exclusion. These arrangements were modified in 2003 and now rely
on five participating associations
(Hors la rue (“Off the
Streets”), Enfants du monde droits de l’homme
(“Children of the World, Human Rights”), Arc 75, Aux captifs
la libération (“Freedom for the Captives”) and
la Fondation des apprentis d’Auteuil (the Apprentices’
Foundation of Auteuil). The arrangements have responsibility for three
essential functions: finding the minors and establishing contact, providing
them
with shelter, and support towards the establishment of their position under
the general law. In 2004, about 1,000 young people were
contacted and 400
received care and guidance.
- In
the Bouches du Rhône, the State has provided financial support for some
ten years to an association, “Jeunes
errants” (“Young Wanderers”) for the care and
guidance of 300 unaccompanied foreign minors.
- To
address the persistent difficulties in this area, the Inspectorate General of
Social Affairs proposed a number of measures in its
report of January 2005 on
conditions for the care of unaccompanied minors in France. These included the
establishment of evaluation
and guidance “platforms” or
“co-ordinated networks” for the care of unaccompanied foreign
minors at the regional or Departmental level. In 2006, the French Government
gave the Prefect
of the Ile-de-France region the task of examining this
recommendation. With the aim of harmonizing procedures and improving
coordination
between the various participants (the State, local authorities and
particularly départements and associations), proposals need to be
prepared for focusing existing arrangements on a common mission of care,
evaluation and guidance
for unaccompanied foreign minors and for defining the
content of a framework agreement for the establishment, as an experiment, of
a
regional platform.
- As
an example, the Directorate for Social Action, Children and Health of the office
of the Mayor of Paris arranges for the care of
about 10,000
minors[162] (half of whom
are in placement and the other half in non-custodial arrangements). Of the 5,000
minors in placements, 800 are unaccompanied
foreign minors, of whom half have a
“young adult’s
contract”[163] in
place.
- Changes
in the numbers of unaccompanied foreign minors gravitating towards Paris in the
past five years are summarized in the following
Table.
Year
|
Number of requests for care as unaccompanied foreign
minors
|
Number of unaccompanied foreign minors actually given
access to children’s social services
|
|
Number of these who signed a young adult’s
contract on coming of age
|
2002
|
760
|
272
|
235
|
2003
|
736
|
316
|
222
|
2004
|
462
|
279
|
147
|
2005
|
383
|
258
|
77
|
2006
|
315
|
200
|
16
|
January to April 2007
|
129
|
61
|
1
|
3. Foreign minors seeking asylum
- The
main nationalities of unaccompanied minors seeking asylum have changed little
since 2005: 58% come from continental Africa (168
from the Democratic
Republic of the Congo and 76 from Angola). The others come from Turkey, Sri
Lanka, Guinea, Moldova and Russia.
- In
2005, the French Office for the Protection of Refugees and Stateless Persons
(OFPRA) introduced systematic arrangements for hearing each unaccompanied
minor during the handling of his or her request for asylum. The
proportion of
unaccompanied foreign minors admitted to refugee status is much higher by a
large margin than that for asylum applications
generally, as it is 20.3% at
OPFRA and 45.2% when the decisions of the Refugee Appeals Board are taken
into account. It should be remembered that every unaccompanied
minor has the
assistance of an ad-hoc administrator when appearing before OFPRA
[164].
- In
addition, the Law referred to above of 24 July 2006 on immigration and
integration amended Article 3 of the Law, also referred
to above, of 10 July
1991 on legal aid, abolishing the condition that until then had had to be met
that a person’s entry into
France must have been lawful in order for them
to benefit from legal aid before the Refugee Appeals Board. As from
1 December 2008,
this reform allows legal aid to be provided to
unaccompanied minors exercising a right of appeal before the Refugee Appeals
Board
against a decision of OFPRA rejecting a request for asylum, even if
their entry into French territory was irregular. As refugee status, in fact,
makes no difference
to the conditions for entry into France, it was necessary to
allow asylum-seekers to make the best possible arrangements for their
defence.
- Foreign
minors with asylum-seeker status are housed in a residential unit or host
family, and hotel accommodation is no longer used
except as an interim
arrangement. A number of establishments exist, such as the Centre for the Care
and Guidance of Unaccompanied
Minor Asylum-Seekers (CAOMIDA of
Boissy-Saint-Léger), set up in 1999 with “France, Land of
Asylum”. This arrangement is an important one, because
it allows care for
the minors to be provided via an agreement with General Councils (principally
those of the départements of Paris and the Val-de-Marne and a
number of départements outside the Ile-de-France). Most of the
minors cared for in this centre come from “Unaccompanied Minors”,
the platform
run in Paris by “France, Land of Asylum” (where they
are initially assessed and advised) and by the Parisian service
for finding
young people and providing shelter for them created in 2003. At present,
CAOMIDA’s 33 places are State funded. This finance is continuing on
the same basis in 2007 pending the recommendations of the study
by the Prefect
of Ile-de-France referred to above. Another establishment has also been created,
the Noisy-le-Sec Residential and
Integrated Vocational Training Centre, which
has places for 12 boys. The French Government has also financed a contingency
supply
of reserved extra places for these minors in several other residential
units.
4. The return of unaccompanied foreign minors to their
countries of origin
- When
the return of a minor to his or her country of origin has to be envisaged, the
French State makes it its business to ensure that
the process contains every
guarantee.
- It
is still essential, however, to strengthen cooperation with states of origin and
to establish robust relationships of confidence
so that life plans can be put
into effect for those concerned. The minor ought in particular to have
arrangements in place for his
or her social and educational circumstances to be
monitored when plans for his or her reintegration are put into effect.
- A
special arrangement for providing assistance with the voluntary repatriation of
foreign unaccompanied minors has been in place with
Romania since
2003[165]. It provides for
a plan setting out the arrangements to be made for the care of the minor, as
well as how his or her repatriation
to Romania and reception there are to be
organized. A new agreement was signed in February 2007, ratification of which is
in progress.
The arrangement also provides for bilateral preventive action, both
by training social workers in the specialist Romanian services,
and by building
up the provision in Romania of information and education for the Romanian
population. So far, this arrangement has
been little used (ten cases or so a
year), but the National Agency for the Reception of Foreigners and for Migration
(ANAEM)[166] has powers to
organize the voluntary repatriation of foreign minors whatever their country of
origin, on the basis of a judicial
reference. In 2005, 18 Romanian minors were
repatriated with the assistance of ANAEM. In the first half-year of 2006, there
were
5. In addition, two repatriations took place to Laos in 2004; two to
Bulgaria, one to Angola and to Cameroon in 2005; and one each
to Albania, Guinea
and Ecuador in 2006.
- The
local authorities directly involved in the care of minors have also set up
cooperative arrangements. The Euro-Mediterranean Network
for the Protection of
Unaccompanied Minors, which brings together those involved from countries of
origin, receiving countries and
countries of transit, has the objective of
improving understanding of the phenomenon, developing the training provided for
professionals
and putting concerted operational solutions in place.
- Local
initiatives have also been taken, for example in the Département
du Rhône, where a project to assist voluntary repatriation of
unaccompanied minors from the Democratic Republic of the Congo
is being
developed by the Information Centre for Solidarity with
Africa[167] with support
from the General Council. The objective of this project, which could in time be
extended to neighbouring Départements,
is to support the repatriation of
some forty young Congolese by providing project plans for reintegration in their
country of origin,
along with monitoring arrangements.
5. The creation of an Internet resource centre
- The
Government decided in 2006 to subsidize the creation of an Internet resource
centre (www.infomie.net) devoted to the care of unaccompanied
foreign minors.
This measure could be seen as a response to the Committee’s
recommendation on the collection of information and statistics in
this area
(paragraph 51a).
- The
aim of the resource centre, hosted by the association “comité
PECO”, is:
- – to
gather and distribute information in order to improve the quality of care
provided for unaccompanied foreign minors on
French soil;
- – to draw
benefit from existing practice in the form of practical research, both in Paris
and the provinces, into good practice
in the care of minors from the countries
of the South and East;
- – to
operate pre-emptively and preventively in relation to minors who would like to
come to France and to Europe and to be a
tool for use by non-governmental
organizations in countries of origin;
- – to
create a forum for debate, allow exchanges and provide for networking by those
responsible in France, in Europe and in
countries of origin; and
- – to
provide a starting-point for training on the issue.
6. Developments at the European level
- At
the end of the Malaga Conference of 26 to 28 October 2005 on Migration of
Unaccompanied Minors, the Council of Europe set up an
ad-hoc consultative group
for the development of policies and practices towards unaccompanied migrant
minors whose status has been,
or is being determined by the competent
authorities. This group prepared a set of recommendations giving guidance to the
competent
authorities for:
- – helping
unaccompanied migrant minors to develop life plans, taking account, as far as
possible, of their aspirations;
- – developing
individual plans designed to help unaccompanied migrant minors to put their life
plans into practice;
- – helping
the integration of unaccompanied migrant minors into society in their new
countries of residence or their reintegration
into their countries of origin;
and
- – overcoming
the difficulties with which unaccompanied migrant minors are confronted, for
example over family reunification
and access to education and healthcare, and
preparing for their introduction into the labour market.
- Chaired
by France and composed of ten national
experts[168] and one
consultant (Morocco), this group has presented a set of recommendations which
should be submitted very shortly to the Committee
of Ministers of the Council of
Europe.
B. CHILDREN IN CONFLICT WITH THE LAW (ARTICLE 40 AND ARTICLE
37,
PARAS. A, B, C AND D)
- Several
of the developments mentioned in the second periodic report of France call for
updating or further information. The reforms
which have been put in train
respond in part in response to the concerns expressed by the Committee about
justice for minors (para.
59) and conditions for the detention and
treatment of minors (para. 30).
-
The French Government recalls that, besides being dealt with in a specialized
category of courts, young offenders enjoy diminished
criminal responsibility by
reason of their age under which tutelary measures take priority over penalties
in the strict sense. The
sanctions provided are themselves exceptions to the
ordinary law, with statute law also providing for tutelary sanctions.
- In
2005, about 44% of prosecutable offences were dealt with by means of
alternatives to prosecution which have been developed in the
course of the
recent reforms[169]. In
addition, about 7% of the 82,333 measures and sanctions ordered by
children’s judges involved a penalty of immediate imprisonment,
a fall of
6.4% compared with the preceding year, while almost 40% of measures involved a
warning, referring the issue to parents
or an absolute
discharge[170]. There has
been a marked increase in the pre-sentencing measures (+10.2%) and tutelary
sanctions (74%) ordered.
1. The main developments in justice for minors
- While
respecting constitutional and international imperatives, the measures adopted
have made substantial changes to current arrangements
in order to make the
treatment of minors under the criminal justice system more effective while
preserving the integrity of the applicable
criminal law. In particular, they
have allowed the criminal justice system to respond more quickly by
strengthening the role of the
public prosecutor and the effectiveness of the
criminal investigation process, by increasing the sophistication of judicial
responses
and by providing a greater diversity of care arrangements, both at the
prosecution stage and the pre-sentencing or sentencing stage.
- Some
of the provisions of Law No. 2000-516 of 15 June 2000 to strengthen the
presumption of innocence and the rights of victims have
been amended.
- While
Law No. 2002-1138 of 9 September 2002 for the orientation and programming
of the justice system amended the provisions dealing
with the detention of
minors from ten to thirteen years old, it retained the special guarantees
attaching to the procedure. It is
only in exceptional cases that a minor between
the ages of ten and thirteen against whom there is strong or corroborated
evidence
giving grounds to believe that that individual has committed or
attempted a serious crime or other major offence punishable by at
least five
years’ imprisonment may, where necessary for the investigation, be held at
the disposal of a police officer with
the prior agreement of a specialist judge
and under his or her supervision. The duration of the detention is short (12
hours maximum)[171].
Appointing a lawyer, informing the parents and a medical examination are all
compulsory as soon as the measure is taken.
- In
addition, Law No. 2004-204 of 9 March 2004 on adapting justice to
developments in crime has provided for an exceptional regime
of custody for a
maximum of 96 hours, the use of which is subject to a strict framework of
control: this regime concerns only sixteen-to-eighteen-year-olds
and only
offences of the most serious kind arising from organized crime or terrorism. The
regime of custody for thirteen-to-sixteen-year-olds
has not been amended.
- More
recently, the Law referred to above of 5 March 2007 for strengthening the
balance of criminal procedure has amended certain specific
provisions in the
arrangements for the interviewing of minors in
custody[172]. Audiovisual
recordings are still made of these interviews, however.
- In
parallel, there have been additions to the procedures which apply to minors
suspected of having committed an offence.
- Since
the Law of 9 September 2002 referred to above, the Justice of the
Peace[173] has jurisdiction
over certain offences committed by minors. The Law has also introduced a new
procedure involving immediate appearance
before the youth courts, the
flexibility of which has been increased by the Law of 5 March 2007 referred to
above for the prevention
of
delinquency[174]. Its scope
is strictly limited. It can be used only when the penalty is equal to or greater
than one year in cases where the person
has been caught in or immediately after
the act and equal to or greater than three years in other cases. It applies only
to minors
aged between sixteen and eighteen. They can be judged immediately only
if three conditions are met: that they give their express
agreement, that their
lawyer does the same, and that there is no opposition from their legal
representatives. The minor’s case
can be dealt with at the earliest and
nearest session of the youth court.
- Taken
together, these reforms, which always give priority to a tutelary approach, have
enhanced the range of measures which can be
taken with delinquent minors. For
example, the Law of 5 March 2007 referred to above has added to the tutelary
options available
to judges by giving them the opportunity to make orders for
day activities[175], which
are designed to help with integrating minors who have dropped out of school or
are on the way to doing so into society and
into professional or school life.
Day activities offer an alternative measure in between non-custodial tutelary
measures and placement.
With the aim of getting the minor involved in a process
leading logically towards that person’s integration, it is based on
the
development of a personalized project plan.
-
Supplementing the provision made by the Law for the orientation and programming
of justice of 9 September 2002, the Law of 5 March
referred to above creates
four new tutelary sanctions designed to add to the diversity of the responses
available to acts of delinquency
by the youngest
minors[176]:
- – placement
in an institution or an approved public or private educational establishment for
a maximum period of three months,
renewable once, for minors over thirteen
years of age and of one month for minors from ten to thirteen years of age;
- – requiring
school work to be done;
- – a
solemn warning: this new sanction corresponds to a reprimand delivered by a
children’s judge in chambers; and
- – placement
in a school establishment with boarding facilities for a period equivalent to a
school year, with authorization
for the minor to return to his or her family for
weekends and school holidays.
- There
is a continuing programme for the creation of secure supervision centres, giving
effect to the legislature’s intention,
as expressed in the Law of 9
September referred to above. So far, there are 29 secure supervision centres.
The aim of the programme
is to have 47 in 2008 with capacity for about 500
places.
- Minors
are “placed” in these establishments, public or private, by
execution of a judicial order for supervision, on probation
(linked to an
obligation to comply with the conditions attached to their placement), on
conditional release, and, since the Law of
5 March 2007 on the prevention of
delinquency referred to above, on external placement (giving effect to the
modification of a
penalty)[177][178].
- Care
provided to minors in secure supervision centres relies on strong and
highly-motivated multidisciplinary teams. In the centres,
minors are subject to
continuous surveillance and monitoring, inside the centre and outside where
allowed, and benefit from intensified
behavioural and educational monitoring
which is tailored to their personality. Designed to strengthen arrangements to
combat the
problem of minors with records of reoffending or persistent problem
behaviour, secure supervision centres provide a new alternative
to
imprisonment.
- The
centres can take minors from the age of thirteen. Failure to observe the
conditions attached to placement in a secure supervision
centre is, for minors
aged between thirteen and sixteen, the only ground on which they can be remanded
in pre-trial custody in cases
involving “délits”
(serious offences not classified as major crimes).
- A
national evaluation of the experimental programme of secure supervision centres,
carried out in 2004, showed among other things
that minors taken by the centres
were, on arrival, all young people with a history of persistent offending or
problem behaviour for
whom existing arrangements had not provided an adequate
response, whether on the judicial or social level.
- Before
they were taken by the centres:
- – 30% had
already been imprisoned, this figure rising to 45% of those aged sixteen to
eighteen;
- – 90% had
already been convicted or prosecuted;
- – 70% had
been subject to an administrative measure for protection before their placement;
- – 76% had
already been subject to placement under a judicial order and 33% had already
been subject to placement more than three
times.
- The
Law of 9 March 2004 referred to above has also undertaken a huge reform in the
field of sentencing by transferring the powers
of the sentencing judge to the
children’s judge, strengthening the specialized function of the
children’s judge and allowing
a better-tailored and prompter judicial
response.
- The
Law states as a general principle that, in order to ensure that the services
responsible for the care of delinquent minors have
the necessary specialized
capabilities, the competent authority for carrying out sentences, including in
those cases where sentences
involve the loss of liberty, should be the public
section of the Judicial Protection Service for Young People. The Circular of 5
July from the management of the Judicial Protection Service for Young People
underlines that it is necessary for the service to adapt
its operations to the
kinds of problems encountered by young people in difficulty, and that it is
indispensable to co-ordinate with
the staff of the prison service in pursuing
these new tasks. For the future, this new field of competence will call for the
youth
court to think carefully about the purpose that the penalty is seeking to
achieve. This will allow not only for the sentence to be
individually tailored
at the moment when it is pronounced, but also for a long-term educational plan
for the convicted young person,
which cannot be interrupted during
imprisonment[179], to be
defined.
- Law
No. 2007-1198 of 10 August 2007 to laying down more rigorous measures to
prevent reoffending by adults and minors maintains the
principle of the
reduction in penalties from which minors benefit and which applies to the
minimum penalties that are fixed by this
Law. This reduction in penalties is
disapplied only for minors aged between sixteen and eighteen who become
reoffenders, as legally
defined, for a second or subsequent time through
commission of a major crime (crime) or serious offence
(délit) of violence or of a sexual nature. The judge may
nevertheless decide to reinstate the reduction for particular reasons. The Law
also notes that tutelary measures and sanctions cannot be taken into account in
defining reoffending, as only penalties constitute
a first term.
- The
Constitutional Council considered that this Law does not infringe the
constitutional requirements relating to justice for minors.
This was because it
derogates from the principle of reduced penalties for minors only by exception,
when certain serious offences
have been committed for a third time, and because
the courts which have jurisdiction retain the discretion not to disapply the
reduction.
The Council recalled also that it was absolutely clear in the
Government’s intentions and in Parliamentary debate that the
court with
jurisdiction would still be able to order a tutelary measure, even for a minor
who was a reoffended[180],
by applying the Order of 2 February 1945 on young offenders.
2. Specialized police services
- Some
services within the National Police specialize in the protection of minors. They
carry out judicial enquiries when children or
adolescents are the victims of
particular types of abuse (ill-treatment or sexual abuse) and become involved in
a protective capacity
in enquiries by the social services, the search for
runaway minors or cases of truanting from school.
- In
2005, the central directorate for public safety had 120 minors’ protection
squads (7 of them services with responsibilities
for départements
in Ile-de-France), consisting of 642 officers. In areas without a structure of
this kind, the tasks concerned are carried out by
one or more specialist police
officers within the minors’ police.
- As
soon as a minor is implicated in association with an adult, the local public
security service is able to call in the minors’
squad, which may on these
occasions bring to light disturbances in the family environment, difficulties of
integration and behaviour
indicative of habitual violent conduct.
- In
addition, the management of the service for public safety in each
département has a young person’s referral officer
(référent-jeunes) whose activities are
networked with “local police-young people’s contact points”
(correspondants locaux police-jeunes) at the centre of each local
service. By communicating information more comprehensively, this arrangement
allows judicial, behavioural
and social monitoring of delinquent minors to be
carried out on a more individual and more rigorous basis.
- These
referral officers take an active part in the preparation and monitoring of plans
to combat and prevent violence in schools,
applying the interministerial
circular of 1 August 2006. Their work has been complemented by the appointment
of 995 contacts in schools,
fulfilling the protocol of agreement signed on 4
October 2004.
- Finally,
a circular of 22 February 2006 from the Minister of the Interior has set out how
minors are to be treated in the course of
police work and when they come under
the responsibility of the police and gendarmerie, whether they are victims,
witnesses, accused
or simply being monitored.
3. Conditions of detention and treatment of
minors
- On
1 July 2007, 825 minors were under arrest in France, or 1.3% of those arrested
and detained. Of these, 34.3% were convicted. In
contrast to the substantial
increase in the number of adults detained, the number of minors detained is
stable with an average length
of detention of two and a half months.
- Minors
are detained in one of two types of institution: in a special area of a prison
establishment (known as “minors’ wings”) or, since June
2007, in a prison establishment for minors.
- For
several years, the prison service has mobilized its services, so as not only to
help with the reintegration of minors into society,
but also to make time spent
in prison a real period of educational endeavour. This ambition has called both
for the structures for
the reception of minors to be adapted, and for changes in
the ways in which care is provided in order to guarantee that educational
action
is sustained.
- First,
the Law of 9 September 2002 for the orientation and programming of the justice
system[181] provided for
the building of prison establishments devoted to minors. There is a programme
for the building of seven establishments,
each with 60 places, near to the
largest conurbations. A budget of €90 million has been earmarked for this
purpose. Two establishments
are
already[182] open. When the
first of these establishments was opened, the Minister of Justice reaffirmed his
determination to make it a place
of education: it has been conceived
“around classroom, sport and culture” and providing the
framework for the minors in the prison will be the task of no fewer than 43
educators as well as of teachers and
warders. The other establishments will open
between now and 2008. The completion of the programme for prison establishments
for minors
will entail the closure of 20 minors’ areas, while 39 will
remain in order to provide complete geographical coverage.
- In
keeping with international and European
requirements[183], the
creation of these self-contained establishments is intended to prevent contacts
between minors and adult prisoners, although,
in exceptional cases and in his or
her interests, a prisoner who comes of age while in custody may be retained for
some time in one
of these establishments. The Law of 9 September 2002 referred
to above is aimed at putting in place individually tailored arrangements
for the
care of minors, allowing them to make progress towards a release plan put
together through the continued involvement of the
Judicial Protection Service
for Young People in Custody. This means that the regime is closer to the rhythm
of life that adolescents
are used to and the activities on offer are more
diverse and more suitable (schoolwork at different levels, educational and
social
activities, and sporting activities involving an increased amount of
specialized equipment including sports halls, indoor and outdoor
sports pitches
and gyms).
- The
use of the minors’ time is centred around learning, the aim being that
each minor should have the benefit each day of an
average of four hours’
general or technical education, with a more diverse provision of training
available than in a “minors’ wing”.
- In
the framework provided by this Law, the Government has, secondly, undertaken to
renovate the “minors’ wings” in order, among other
things, to provide for accommodation in individual cells and for the separation
of minors and adults (500 new
custody places by the extension of certain
existing minors’ areas and the creation of areas with 10 to 20 places in
establishments
which do not currently have them). In 2003, there were 887 places
for minors. An allocation of €25 million has been agreed
by Parliament for
this programme, the total cost of which will be €27.8 million. This means
that minors are cared for in purpose-designed
structures, by staff who are
dedicated and specially trained. They have the benefit of access to a range of
activities adapted to
their age. At present, educational staff of the Judicial
Protection Service for Young People are continuously involved in young
people’s
areas as a whole.
- In
parallel, the Government has undertaken a
remodelling[184] of the
regime for the imprisonment of minors which fits their profile and needs and
makes time spent in imprisonment a part of the
minor’s educational career.
- The
custody regime that is determined in this way is common to the two types of
establishment which receive minors (“minors’ wings” and
prison establishments for
minors)[185]. The principle
of isolation at night is reaffirmed, except where there are medical or
personality reasons to the contrary. Essentially,
this new regime relies on an
approach to the care of minors which is multidisciplinary and educational in
nature. The right to education
and training, extending beyond compulsory school
age, is reaffirmed and for the future a central point of authority has
responsibility
for monitoring the minor: it is consulted on all major decisions
affecting the minor’s detention.
- Family
ties are also preserved: holders of parental authority are consulted about major
decisions taken in the course of detention
and are kept regularly informed about
how detention is proceeding and any measure which affects this. Access to the
telephone is
now permitted.
- The
disciplinary regime has also been adapted and disciplinary sanctions changed to
take account of factors specific to the life of
minors. Thus, the graduated
nature of sanctions and their proportionality to the offence are reaffirmed and
educational and behavioural
action plays a large part in the responses
used[186]. Five main points
should be underlined:
- – the
stress laid on the principle that the sanction chosen should fit the age and
degree of understanding of the minor;
- – the
ability of the minor to be represented by a lawyer before the disciplinary
committee;
- – the
ability of the Judicial Protection Service for Young People to be present during
the disciplinary process to allow a better
understanding of the minor;
- – the
exceptional nature of the use of the punishment cell, which is confined to those
over the age of sixteen and to behaviour
involving violence or threats, and
changes which have been made to the periods for which this sanction is used; and
- – the
adaptation of the range of sanctions available to the detainee’s status as
a minor, including the broadening of
the sanctions available to include tutelary
sanctions.
- Finally,
the French Government has paid particular attention to caring for the health of
minors in detention. This requires a holistic
approach to health and an approach
which recognizes the continuity which should exist between preventive and
curative measures. Effectiveness
depends largely on the comprehensiveness of the
partnerships involved, on cooperation between the partners and on arrangements
being
made for monitoring how well the arrangements work in practice.
- Since
Law No. 94-43 of 18 January 1994 on public health and social protection,
healthcare for those in custody is entrusted to the
public hospital service,
both for physical treatment delivered in a mobile unit for consultations and
treatment, and for specialist
consultations. In-patient treatment is also
delivered in public establishments.
- The
Law of 18 January 1994 applies to the seven prison establishments for minors.
Care plans are drawn up at the regional level and
connections are made with
partner services (the prison service, the Judicial Protection Service for Young
People and the National
Education Service). An interministerial circular will
set the aims for:
- – delivering
a response to health needs which meshes with the operations of partners; and
- – guaranteeing
the continuity and consistency of arrangements for healthcare, at the point of
release as well as during detention.
- Part
of the job of the medical practitioner responsible for the mobile unit for
consultations and care is to organize the monitoring
of minors in custody and to
coordinate preventive and educational health measures for them. A scrupulous
coordination with the regional
team for psychological medicine, with the prison
service and with the Judicial Protection Service for Young People is one of the
conditions necessary for the success of a health plan which is capable of
meeting the needs of imprisoned adolescents in severe difficulty.
C. CHILDREN IN SITUATIONS OF EXPLOITATION (ARTICLE 39)
1. Combating economic exploitation
- Where
children, including foreign children, are the victims of organized rings, the
exploitation usually takes the form of incitement
to steal, beg or engage in
prostitution. Combating these criminal activities is the job of the police and
gendarmerie and, in particular,
of specialized offices such as the Central
Office for Combating Human Trafficking or the Central Office for Combating
Delinquency
by Vagrants, created in
2004[187].
- These
services are conducting very large-scale operations for dismantling the rings
which are active in France, in keeping with the
recommendations of the Committee
(paras. 52 and 53).
- Rings
using children from Romania and other Eastern European countries have
practically disappeared over recent years. The interministerial
unit for
combating delinquency by vagrants had stopped and questioned 1,179 persons, of
whom 661 were arrested and 75 accompanied
to the frontier. From 2004 to 2006,
the work of 68 inquiry units within the gendarmerie and 42 inquiry teams
within the police led
to 708 and 152 people respectively being questioned.
- There
is increased surveillance of illegal working by minors and a determined
mobilization of State monitoring services to provide
them with better
protection. In this respect, the Law of 2 January 2004 on child care and
child protection, referred to above, and
Law No. 2003-239 of 18 March
2003 on national security have strengthened the powers for work inspection and
the relevant criminal
sanctions.
- For
example, 227-15 paragraph 2 of the Criminal Code includes in the offence of
lack of care, subject to seven years’ imprisonment
and a fine of
€100,000, “keeping a child under the age of six on the public
highway or in a place provided for the purpose of public transport, with
the
purpose of appealing to the generosity of passers-by”.
- The
Employment Code applies a rigorous framework to the employment of minors.
Persons who exploit children by causing them to work
in an illegal manner or by
taking abusive advantage of their vulnerability are liable to severe penalties.
- Thus,
the Law of 5 March 2007 for the reform of child protection referred to above
establishes an improved framework for home education
in order to reduce the
risks of exclusion from school education and to strengthen efforts to combat
illegal working by minors.
- In
addition, when young people aged over 14 take on work suitable to their age
during the school holidays, notice must be given beforehand
to the Employment
Inspector, who has eight days to object.
- Individual
prior authorizations are required for the employment of minors in live
performances. These are issued by the administrative
authorities, if positive
advice is received from a special committee, chaired by a law officer
(children’s judge) and composed
of representatives of the Ministries of
Education, Employment and Health and Social Action, as well as a medically
qualified health
inspector. This procedure includes a medical examination, to be
carried out at the expense of the prospective employer.
-
It is still the Prefect who, if he or she receives positive advice from a
committee with the same composition, issues authorizations
for the employment of
children to model agencies. These authorizations, which are valid for a
renewable period of one year, may legally
be granted only if the guarantees
offered to children for their physical and psychological safety are sufficient.
This procedure
includes an obligation on the modelling agency to carry out
periodic medical monitoring of their child employees. It can be withdrawn
at any
time and suspended in an emergency.
-
A draft decree to increase the effectiveness of the medical monitoring of these
children is currently under consideration by the
Conseil
d’État. Its publication will be followed by a circular on
modelling agencies and work as a model, further work on which will be devoted
to
the specific protective measures to which child models should be subject.
2. Sexual exploitation and violence
- The
French Government addressed this question very widely in its initial monitoring
report on the additional protocol to the Convention
dealing with the Sale of
Children, Child Prostitution and Child Pornography, sent to the Committee in
August 2006.
- The
action set out there, aimed, among other things, at strengthen arrangements for
countering actions and activities targeted by
the Protocol (para. 11 et
seq), to combat sex tourism (para. 189 et seq) and to develop
international aid and cooperation (paras. 240 et seq), retains all of its
relevance.
- In
this report, the French Government would like to give details of some recent
measures which provide a more specific response to
some of the recommendations
made by the Committee (including paras. 28 and 55).
- It
is a tendency of French criminal law to adapt itself to technological change.
Offences are specifically created for the criminal
uses to which technological
innovations can be put. Measures are also taken to improve the detection and
monitoring of these offences.
- The
Law of 5 March 2007 for the reform of child protection referred to above amended
Article 227(3) of the Criminal Code: the act
of habitually consulting a public
online communication service which makes available a pornographic image or
representation of a
minor is now prohibited in itself on the same basis as
possessing such an image or
representation[188].
- The
Law of 5 March 2007 on the prevention of delinquency also contains several
provisions intended to strengthen arrangements to prevent
and combat certain
offences relating to human trafficking, procuring and the prostitution of
minors[189].
- For
example, offences of sexually propositioning a minor aged under
fifteen[190] and of making
and distributing images relating to offences against the integrity of the
person[191] are created and
made subject to severe penalties. Similarly, the act of exploiting a minor or
inciting him or her to commit an offence
becomes an offence in
itself[192].
- This
Law also makes it easier to assemble evidence and search for perpetrators, when
offences are committed by means of electronic
communication (new arts.
706(35)(1) and 706(47)(3) of the Code of Criminal Procedure). It makes it
possible for “agents or officers of the police acting in the course of
an inquiry or on judicial instructions” to take part under a pseudonym
in electronic exchanges, to be in contact by such means with persons who may be
the perpetrators of
these crimes, and to extract illicit material, transmit it
in response to an express request, acquire or hold it. These acts must
not
constitute an incitement to commit offences or their evidential value is voided.
- A
national platform for handling Internet traffic was also established in 2005,
within the Central Office for Combating Information
and Communication Technology
Crime, for gathering and processing traffic between Internet users and access
providers about illicit
material distributed via the net. This platform has made
it possible to analyse this type of criminality in France.
- To
date, from the millions of images in circulation, 23 French underage girls have
been identified as victims. In all cases, their
abusers came from their close
environment.
- In
addition, an interministerial working group, with the participation of the
Central Office for Combating Violence against the Person,
has prepared a
programme for the prevention of dangers on the Internet, aimed at children aged
7 to 11 years, in the form of about
fifteen animated cartoons. The Central
Office is negotiating with French access providers for the installation of free
Norwegian
software for filtering access to identified child pornography sites.
- Finally,
the Gendarmerie Nationale has established an Internet surveillance unit to track
exchanges of pornographic files involving
children with the aim of identifying
offending Internet users and bringing proceedings against them.
- As
part of action to combat gambling, and particularly online gaming, the Law of 5
March 2007 on the prevention of delinquency, referred
to above, allows the
authorities to freeze the proceeds of these services for a period of
six months[193] and
introduces an obligation on access providers and site hosts to signpost those
sites of which the competent public authorities
disapprove and to inform
subscribers of the risks that they incur by indulging in gambling which is
against the law[194].
- Certain
provisions of the Law of 5 March 2007 for the reform of child protection,
referred to above, similarly tend towards a better
application of the Convention
in domestic law. As part of action to combat child pornography, measures are
being taken to improve
the training of those working with and for children.
Organizations for providing support in schools are monitored so as to exclude
from their management persons who have been convicted of major crimes or
offences of dishonesty or immorality. To combat the risk
of the sale of children
and illegal adoption, the penalty for failing to register a birth with the
authorities is being increased
(it becomes a major offence
[“délit”] punishable by six months’
imprisonment and a fine
of €3,750[195]).
- As
far as is known to the Central Office to Combat Human Trafficking, no rings for
trafficking in children for purposes of sexual
exploitation exist in France. The
Central Office has identified only 12 minors, very close to the age of majority,
who were victims
of aggravated offences of procuring during 2006. Judicial
proceedings taken against minors account for barely 1% of cases in which
a
person was stopped and questioned for soliciting during 2006, but it could not
be demonstrated (except in 12 cases) that those
concerned had been the victims
of trafficking.
- At
the international level, France is pursuing its collaboration with UNICEF
through specific programmes, such as the preparation
of a code of conduct for
the protection of children against sexual exploitation in the travel and tourism
sector, and through project
No. 2000-149, “Child
Protection”, mentioned above.
- France
is continuing to take action to combat human trafficking more generally,
developing police and judicial cooperation with countries
from the priority zone
for solidarity in international cooperation and development, but also in Asia,
Latin America and in Europe,
and promoting assistance and reintegration for
victims.
- Further
seminars were held at Dakar from 9 to 11 May 2007 on the question of trafficking
in West Africa, and on particular on trafficking
of children, and in Latin
America in November 2006 on human trafficking and combating sexual tourism
involving children.
- In
parallel, training activities for police and members of the judiciary have been
put in place in Asia. In November 2006 a regional
course of operational training
on combating trafficking in human beings was held in Vietnam, Laos and Cambodia,
allowing participants
to acquire common technical capabilities and to develop
new arrangements for cooperation. Another course was organized during the
same
year in Indonesia, Malaysia, Singapore and East Timor. In 2007, these activities
targeted zones involved in sexual tourism,
Thailand and Indonesia. Prompted by
the growth prostitution, the sexual exploitation of minors and procuring between
Indonesia, Malaysia
and Singapore, a regional seminar is planned to take place
during 2008.
3. Abduction and missing children
“Abduction Alert”
- An
arrangement known as “Abduction Alert”, inspired by
“Amber Alert” systems created in the United States in 1996
and Quebec in 2003, was established on 128 February 2006
- The
“Abduction Alert” agreement is the fruit of an initiative for
joint working taken by the Ministry of Justice with a large number of partners:
the
Ministry of the Interior, the Ministry of Defence, the Ministry of
Transport, Infrastructure, Tourism and the Sea, the Higher Council
for the
Audiovisual Sector, the main French television networks and radio stations,
Agence France Presse,
SNCF[196], la
RATP[197], the motorway
companies and victims’ associations such as “The Voice of the
Child”, “the Seagull”, the Association for Protection
against Sexual Abuse and Crime and the Federation for Assistance and Support for
Victims of Violence.
- “Abduction
Alert” is an arrangement for use in exceptional circumstances and is
specifically reactive in nature. It provides a useful addition to the
usual
means of inquiry. The State Prosecutor triggers the alert when four conditions
are met:
- – what is
involved is a confirmed abduction, and not simply a missing person;
- – the
victim is in danger;
- – precise
information is needed to locate the child or the abductor; and
- – the
victim is a minor.
- Three
prior conditions for triggering the alert must also be satisfied:
- – the
parents, with the assistance of the local association for victim support, must
have given their
agreement[198];
- – an
emergency unit must have been set up; and
- – a
report that been sent by the Public Prosecutor to the head of the State
Prosecution Service and by the latter to the Ministry
of Justice.
- Even
when all these conditions are met, the alert is not triggered if there is a risk
that it would create additional danger for the
child or that it would compromise
investigations that are in progress.
- When
the alert is triggered, it is distributed throughout metropolitan France and
repeated until the child is
found[199]. The alert
message is accompanied by a photograph of the victim and a Freephone number,
with the alternative of an email address,
for witnesses to contact the police or
gendarmerie.
- This
arrangement is very largely based on the experience that victims’
associations and associations for victim support have
been able to deploy as
part of “SOS Missing Children”. When triggered, “SOS
Missing Children” receives the alert message via the National
Institute for Victim Support and Mediation (INAVEM) at the same time as
it is released to the press. This means that the associations are in a position,
not only to relay the message
to their own partners, but also to refer witnesses
to the special “Abduction Alert” telephone number. Meanwhile,
the parents of the missing child can receive help and psychological support from
a local association
for victim support, at the request of the State Prosecutor
in charge of the inquiry. The main partners in “Abduction Alert”
are the National Institute for Victim Support and
Mediation[200] and the
Children’s
Foundation[201]. Since it
was established in February 2006, the “Abduction Alert” plan
has been successfully put into operation four times. On one recent
occasion on 15 August 2007, the fact that the system was in place made it
possible to find a five-year-old boy, abducted
at Roubaix, on the same day.
“SOS Missing Children”
- On
25 May 2004, a framework agreement on the circumstances in which “SOS
Missing Children” should be put into action was signed by the Ministry
of Justice, the Ministry responsibly for the family, INAVEM and the
Children’s Foundation. The purpose is to listen to the families of runaway
children or children abducted by a parent
or who have gone missing in worrying
circumstances, and to offer them guidance and support in all the steps they need
to take right
through to the closure of the case.
- This
arrangement, two-thirds financed by the
State[202], relies on a
network of associations. It is composed of two units:
INAVEM’s telephone helpline, responsible for taking calls, and the
monitoring unit of the Children’s Foundation, responsible
for the
coordination of activities under the arrangement as a whole and for the running
of the monitoring unit itself. Several protocols
to the framework agreement
specify the circumstances in which each of the partners is to become involved
(INAVEM, the Children’s Foundation, the national child abuse
hotline (“119 Allo Enfance Maltraitée”) and partner
associations).
- In
phase with the “08VICTIMES” service, the guaranteed service is now
provided from 6pm to 9pm from Monday to Friday and
from 9am to 9pm on Saturday.
- In
2005, 1,732 calls were dealt with by the service. These calls resulted in the
official opening of 804 cases, in 146 of which corresponding
cases were opened
by the association for victim support.
4. The special problem of involvement with cults
- The
absence of a legal definition of sects results from the French concept of
secularism. Since the Law of 9 December 1905, France’s
experience has been
of a regime of separation between Churches and the State which has led the State
to guarantee freedom of worship,
while not recognizing any particular religion.
The principle of the neutrality of the State therefore means that religious
beliefs
are not a material factor in public life, apart from restrictions
connected with securing respect for public order, and that religious
matters are
the exclusive concern of individuals, arising solely in each citizen’s
private sphere.
- This
means that matters concerned with sects cannot in themselves be the subject of
legislative intervention which has a limiting
intention. Only the consequences,
where they constitute a danger for the individual or for public order, can be
taken into consideration
by the law.
- Thus,
Law No. 2001-504 of 12 June 2001, enacted following a number of
Parliamentary reports, has as its object to strengthen the prevention
and
suppression of sects which are inimical to human rights and fundamental
liberties.
- By
the same logic, the creation of the Interministerial Taskforce for Vigilance
towards and Combating Diversion into Involvement with
Sects (MIVILUDES),
in December 2002[203], was
a response to concern for vigilance and prevention. Its tasks
are:
- – to
observe and analyse movements having the character of a sect which work for ends
which are inimical to human rights and
fundamental liberties or constitute a
threat to public order or which are contrary to law and regulation;
- – while
observing public liberties, to co-ordinate the preventive and suppressive
activities of the public authorities in relation
to the activities of sects in
pursuit of such ends;
- – to
broaden exchanges of information between the public services on administrative
practice in the field of combating the diversion
of persons into involvement
with sects;
- – to
contribute to informing and training members of the public services in this
area;
- – to
inform the public about the risks, and where appropriate the dangers, to which
diversion into involvement with sects exposes
them and to facilitate assistance
to the victims of such diversion; and
- – to take
part in work led by the Ministry for Foreign Affairs in this field arising from
its international responsibilities.
- Relying
on the findings of the report of the Parliamentary Committee of Inquiry on the
influence of movements having the character
of a sect and the consequences of
their practices for the physical and mental health of minors (December 2006),
the Law of 5 March
2007 for the Reform of Child Protection, referred to above,
contains provisions which aim to protect minors against diversion into
involvement with
sects[204]: penalties for
not registering births and not complying with requirements for compulsory
vaccination are strengthened. In addition,
criminal prosecution to penalize
publicity or promotional activity directed towards minors by sects is made
easier. More generally,
provisions for receiving and passing on information
giving rise to concern about minors should allow limits to be set to the secrecy
that surrounds children when their parents’ adherence to a sect places
them in danger in the sense of Article 375 of the Civil
Code.
- The
different ministries continue to raise the awareness of their staff in relation
to vigilance in this area (by the publication
of circulars, the establishment of
an interministerial working group, the development of training aimed at health
and children’s
professionals and at law officers etc).
- In
March 2007, the Minister of Health decided to establish a new plan for the
protection and treatment of those diverted into involvement
with sects and with
certain
therapies[205].
D. CHILDREN BELONGING TO A MINORITY OR AN INDIGENOUS GROUP
(ARTICLE 30)
- In
response to the recommendation by the Committee at its paragraph 60, the
Government points out that its reserve in relation to
Article 30 of the
Convention is not an obstacle to recognising the particular local features of
indigenous, original or non-indigenous
populations (see Annex 1), and to
recognizing cultural diversity in metropolitan France, by, among other means,
valuing regional
languages and, conversely, through intensive and specific
tuition in the French language in order to guarantee the complete integration
of
pupils in these groups into the normal curriculum (see Annex 2).
Annex I
THE RIGHTS OF THE CHILD IN OVERSEAS FRANCE
INTRODUCTION
The institutional framework overseas
- Under
the French Constitution of 4 October 1958, the indivisibility of the Republic is
sacrosanct. It recognizes one single French nationality, to which rights
are
attached. There is no longer any legal discrimination between people from
metropolitan France and those from overseas France.
The latter vote at all
elections, are represented in the Parliament and have freedom of movement and of
establishment across the
whole of French territory. They also have European
citizenship.
- The
Constitution distinguishes between:
- - overseas
départements and regions under article 73 (Guadeloupe,
French Guiana, Martinique and Réunion) whose defining characteristic is a
regime treating them as identical in
legislative terms with France as a whole.
National laws and regulations apply fully, and as of right. Adaptations are
nevertheless
possible to take account of special characteristics. The initiative
for such adaptations may be taken by the Parliament or the Government,
or by the
locally elected authorities if statute law allows. Départements
and Regions are also able to make regulations about some questions in the legal
domain, with sovereign matters (justice, civil liberties
etc) excepted;
- - overseas
collectivities under article 74 (Mayotte, Saint-Pierre and Miquelon, French
Polynesia and the Wallis and Futuna Islands), whose status takes account
of
their particular interests within the Republic and gives them a varying degree
of autonomy (which may or may not distinguish them
from the metropolitan
regime). An institutional Law sets out how competences are divided between the
French State and the collectivity.
Within their competence, the institutions of
the collectivity may set standards, in the legal domain and elsewhere. Some of
these
collectivities are governed by the legislative speciality rule: national
laws and regulations do not apply there unless this is
expressly provided;
and
- - New
Caledonia (Part XIII of the Constitution), which is in a category of its own,
and is also governed by the legislative speciality rule.
- The
Constitution also permits, with the consent of the electorate, transition from
the status of an overseas département or region to that of an
overseas collectivity. On 7 December 2003, for example, the electorate of the
communes of Saint-Barthélemy
and Saint-Martin voted in favour of
separation from Guadeloupe. Institutional and
ordinary[206] laws nos.
2007-223 and 2007-224 on status and institutional matters in overseas France of
21 February 2007 established them as an
overseas collectivity as from 15 July
2007.
The demographic context: a young population
- 4. On Mayotte, the population has increased fivefold in 35 years, reaching 160,265 in 2002. Those under the age of 20 represent 56%
of the total, a higher percentage than for any other French collectivity (in metropolitan France, as at 1 January 2007, there are
61,538,322 inhabitants, of whom 15,203,831, or 24.7%, are aged under 20).
- 5. High birth-rate and immigration from neighbouring islands are at the root of this demographic growth. Even though we are seeing
a reduction in the birth-rate, it remains very high, with a fecundity index of 5 children per woman (compared with 1.7 children per
woman in metropolitan France.
- 6. This population is concentrated around a main urban area, Mamoudzou, which contains more than 45,000 inhabitants, or 28% of the
total population.
- 7. The population is the product of a blending between populations of Bantu origin and various waves of immigration, principally from
Madagascar. The Indian community forms one of the largest of the minorities on the island.
- 8. The 2002 census showed large population movements: the number of immigrants from Comoros is growing. The French population is
steady at a little under 100,000, while the number of foreigners is over 55,000, or a third of the total population. Foreigners have
settled mainly around the economic centre, the Commune of Mamoudzou.
- 9. Two-thirds of births involve foreign mothers. The explanation for this lies in their numbers (there are as many Comoran as French
women aged between 20 and 39 years) and in their birth-rate, which is higher: women born on Mayotte have on average 3.5 children,
while Comoran women have 5.
- 10. In 2002, the Directorate of Health and Social Affairs registered more than 7,000 births, almost 4,000 of them at the Mamoudzou
maternity centre, making it the busiest maternity centre in France. The number of births can be expected to continue to rise in coming
years owing to the youth of the population and cultural behaviours which favour having children.
- 11. On Réunion, at the last census in 1999, the population was 706,300 inhabitants (a demographic growth of 1.72% a year since
1990). This growth is due partly to migration, but mostly to natural growth (the excess of births over deaths): the birth-rate is
as high as 20% (it is about 13% in metropolitan France), while the death rate is 5%. Net migration is also positive. If this rate
of growth continues, Réunion could have between 900,000 and a million inhabitants in 2025. The figures show a definite ageing
of the population (51,400 were over 60 in 1990, compared with 70,700 in 1999). In parallel, the number of those aged under 20 has
reduced to 36% of the population, compared with 40% in 1990.
- 12. The number of young adults (20 to 29 year-olds) has reduced since 1990 to 15% of the population, with the 30-39 year-old age group
becoming the most numerous (17%). One of the predominant factors in this ageing is a marked increase in longevity. Life expectancy
has risen to 70.4 years for men and 78.6 for women, an increase of 10 months since 1990.
- 13. In French Guiana, almost 157,213 inhabitants appeared in the 1999 census, or an increase of 42,600 in nine years. This very high
rate of growth, which is hard to explain with certainty, is being sustained by the combination of a birth-rate which is the highest
both in France and in South America (31.3% in 1999) and a very markedly positive rate of net migration. This produces a growth rate
of 3.6% a year, which is nevertheless lower than that in the last period between censuses (5.8%).
- 14. In consequence, more than half of the inhabitants are aged below 25 and 52% of the population is male owing to high immigration.
The death rate is very low and fecundity is very high.
- 15. A demographic readjustment is taking place, with reductions in Cayenne being balanced by increases elsewhere in French Guiana,
including the towns of Saint-Laurent du Maroni and Kourou, the populations of which have doubled in ten years, and in some residential
communes around Cayenne. Most of the interior of the country remains unpopulated, however, and population density is only 2 inhabitants
per square kilometre.
- 16. At the census of 1999, the population of Martinique was 381,427 (compared with 359,600 in 1990 and 328,600 in 1982). Spread over
1,128 km², this population is very dense (338 inhabitants/ km², compared with 106 in France as a whole). The population
of Martinique is relatively young and dynamic, with 25.9% aged under 20 and 53.8% aged between 20 and 59 years. Life expectancy is
high, with the number of centenarians higher than the national average.
- 17. In Guadeloupe, the population is estimated at 453,000 as at 1 January 2006. The population is young: those aged between 0 and
19 account for 31.7% of the population. It should be noted, however, that the age profile of the population has been increasing for
several years, as this age group represented 35.9% in 1990.
- 18. In New Caledonia, according to the last census in 1996, the population was 196,836, compared with 164,173 at the preceding census
in 1989. As at 31 December 2001, the population is estimated at 216,132, as a result of very dynamic demographic change. Almost half
the population is aged under 25.
- 19. The population is distributed as follows:
- 20. There are elements of concentration in the spatial distribution of the population. For example, 38.8% of the population of the
territory live at Nouméa and Grand Nouméa, which consists of the municipalities of Dumbéa, Païta, Mont-Dore
and the town of Nouméa, which on its own accounts for about 60% of the population.
- 21. French Polynesia now has 245,405 habitants (2002 census), an increase of 11.81% in six years. The population, taken as a whole,
is young, with 43.1% under the age of twenty.
- 22. The distribution by island group is as follows (census of 1996):
- 23. The population of the Wallis and Futuna Islands was 14,944 at the census of 2003. 34% of the population lives on Futuna and 66%
on Wallis. The population is very young (64% are aged under 20).
- 24. The massive immigration of this population to New Caledonia should be noted: 17,563 persons had moved to the Nouméa region
at the time of the 1996 census, corresponding to 9% of the total population of New Caledonia today.
- 25. In Saint-Pierre et Miquelon, the population is now 6,316: 5,618 on Saint-Pierre and 698 on Miquelon.
I.
APPLICABILITY OF THE CONVENTION IN OVERSEAS FRANCE
- In
general, international conventions apply fully as a matter of law to overseas
départements and regions, and to overseas collectivities subject
to any express provisions of non-applicability which appear in the instrument
concerned. The Conseil d’Etat ruled on 14 May 1993 that an
international convention published in metropolitan France applies fully as a
matter of law in overseas
France without any need for further formalities
provided that it does not include an express exclusion clause.
- In
the absence of any specific reserves, international conventions on the
protection of the rights of the child which have been ratified
by France are
fully applicable as a matter of law in the French overseas
départements and collectivities (the New York Convention on the
Rights of the Child of 20 November 1989, the Hague Convention on Protection of
Children and Cooperation in respect of Inter-country Adoption of 29 May 1993
etc.).
- The
promotion of the rights of the child is a priority for the overseas
départements and collectivities. Across the whole of French
overseas territory, the anniversary of the International Convention on the
Rights
of the Child is celebrated, and treated as an opportunity to make what
the collectivities are doing about child protection better
known. They are also
an occasion for reflection on the range of problems affecting children by all of
the services of the State,
associations and partner organizations such as the
Family Allowances Funds.
- In
New Caledonia, for example, regular action is taken to disseminate the
Convention and information about it, and added emphasis
has been placed on this
since 2005. The local representative of the Children’s Ombudsman
intervenes frequently in schools and
works in close collaboration with the
social and judicial services. The local media pass on information about these
matters effectively.
In future, additional stress will be laid on activities in
the villages and among remote tribes.
- In
2003, the Northern Province of New Caledonia organized events in all public and
private primary schools through the Directorates
for Teaching and for Health to
commemorate the anniversary of the Convention as part of the International Day
of the Rights of the
Child. Posters, publications and competitions for designing
Advent calendars were distributed to teachers and provided the basis
for
classroom activities.
- The
Assembly of the Northern Province approved an information campaign on
children’s rights and child protection directed at
all pupils of primary
schools in the Province, their parents, teachers and the State and customary
authorities. This campaign was
begun in November 2003 in one commune and was
rolled out over the whole of the Northern Province’s territory by 2007.
These
events received wide media coverage.
- Similarly,
the Southern Province organizes awareness-raising events for children and adults
as part of the annual celebration of the
signature of the Convention on the
Rights of the Child. In 2001 a special theme – the right to health
– was chosen. As
part of special teaching projects, primary school
children were invited to do work on this theme which was then exhibited for a
week
at the Town Hall at Nouméa. In 2002, the special theme was the right
to the family, and in 2004 it was the right to rest and
leisure.
A. The legal status of indigenous populations
overseas
- France
stated a reservation in relation to Article 30 (which provides that: “in
those states in which ethnic, religious or
linguistic minorities or persons of
indigenous origin exist, a child belonging to such a minority or who is
indigenous shall not
be denied the right, in community with other members of his
or her group, to enjoy his or her own culture, to practise his or her
own
religion, or to use his or her own language”).
- The
territory of the French Republic includes populations which correspond to the
definition of “autochthonous, indigenous or
aboriginal populations”
which, according to the work of the United Nations, are distinct from
“minorities” because
of their presence on the land from time
immemorial and of the fact that they have continuous historical links with
pre-colonial societies
which existed prior to invasion. (See the report of
José R. MARTINEZ-COBO, United Nations, doc. E/CN4/1986/7 and
addenda 1-4).
- In
French Guiana, French Polynesia, New Caledonia, Mayotte and the Wallis and
Futuna Islands, the indigenous populations are respectively
Amerindians,
Polynesians, Melanesians, Mahorais, and Wallisians and Futunians.
1. The principle of equal rights
- Article
72(3) of the Constitution put an end to the existence as a legal concept of
“overseas peoples” (Constitutional Law No. 2003-276 of 28 March
2003
on the decentralized organization of the Republic): this Article
nevertheless provides that “the Republic shall recognize
the overseas
populations within the French people in a common ideal of liberty, equality and
fraternity[207].” In
fact, although the concept of rights for indigenous and local communities is
alien to French
law a[2], the
State has for many years been finding ways to integrate local popular knowledge
and the practices and customs of the overseas
populations into its policies for
the conservation of biodiversity.
- For
example, Article 8j of the Convention on Biological Diversity (which recognizes
the contribution of local and indigenous communities
to the preservation and
sustainable use of biodiversity) has now been transcribed virtually in its
entirety into national law by
Law No. 2000-1207 on orientation for overseas
France of 13 December 2000 in Article 33: “The State and local
collectivities
shall encourage the respect, protection and preservation of the
knowledge, customs and unique characteristics of indigenous and local
communities which are based on their traditional ways of life and which
contribute to the preservation of the natural environment
and the sustainable
use of biological diversity”.
2. Respect for special local
factors
- The
French approach does not exclude the right for overseas indigenous populations
to lead their own cultural life in common with
the other members of their group,
to profess and practise their own religion or to use their own language.
- The
approach that France has adopted to special local factors is to take them into
account in the legal norms that apply locally.
This has led to the development
in the overseas départements and regions of one-off systems for
coexistence between codified civil law and local custom passed on by oral
tradition, with each
of the two governing the way in which society is organized
at particular levels, and conflicts between the two being resolved according
to
precedent.
2. 1 The preservation of personal
status b[2] under
local law in some collectivities responds to a Constitutional requirement
- The
field in which the Republic has shown its commitment to the recognition of
indigenous overseas populations is the law of the person.
It has written that
recognition into the constitution (art. 75).
- Article
75, which replaces article 82 of the Constitution of 27 October 1946 and is
drafted similarly, provides that “Citizens who do not have ordinary civil
status, as exclusively
referred to in Article 34, shall retain their personal
status so long as they have not renounced it.”
- This
means that two kinds of personal status exist alongside one another in Mayotte
and in two overseas collectivities in the Pacific
(New Caledonia and the Wallis
and Futuna Islands). One status is under ordinary law, governed by the
provisions of the Civil Code;
the other under local or customary law. In
Polynesia, personal status has not existed since the Order of 24 March 1945 for
the abolition
of personal status in French Polynesia.
- Article
75 of the Constitution refers only to civil status, as the criminal law is
consistently excluded from the competence of the collectivities.
- In
preparing laws establishing overseas collectivities (New Caledonia, the Wallis
and Futuna Islands and the Departmental Collectivity
of Mayotte), France has
always scrupulously observed the provisions of Article 75 of the Constitution.
This constitutional provision guarantees to these collectivities respect for
their traditions and customs.
2. 2 Respect for forms of personal
status under customary law does not rule out bringing them into conformity with
the general legal
principles of the rule of law and of international law
- Bringing
forms of personal status into conformity with the principles which provide the
framework for the rule of law in France does
not imply that they must be
systematically aligned with the ordinary law.
- For
example, a number of legislative provisions have brought the civil law of
Mayotte into line with that in force in metropolitan
France. The programming law
of 21 July 2003 for overseas France ends polygamy, establishes the termination
of marriage by divorce,
and prohibits unilateral repudiations along with
discrimination between children in inheritance matters based on gender or on
whether
their birth is legitimate or natural. Article 68 of the Law of 21 July
2003 amends Title VI of Law No. 2001-216 of 11 July 2001 on
the status of
Mayotte so as finally to restrict the field of application of personal status
under local law to personal capacity,
to matrimonial arrangements and to
inheritance and gifts, to the exclusion of all other aspects of the life of
society.
- The
profound modification of civil status under local law undertaken through these
legislative reforms undeniably allows it to develop
in a way which is consistent
with the principles of the Republic, without calling into question the very
existence of such status,
which is guaranteed by the Constitution. Throughout
the whole process of change in status, including the most recent developments,
France has taken a gradual approach in
order to avoid violent breaks with
ancestral customs in the overseas collectivities.
- France
intends to continue this process of bringing forms of civil status under
customary law into conformity with the requirements
of the rule of law in
relation to human rights.
- Dealing
with the field of application of Melanesian customary law, in a judgement of
16 December
2005 c[2], The
Court of Cassation considered that local custom enjoys full standing in society,
as customary law cannot be seen as a subsidiary
system of law. Bringing it into
conformity with the rule of law must not lead to it being purely and simply
assimilated with the
principles of the general law.
- The
Court of Cassation retains full jurisdiction over customary Law so that it can
supervise all of the relationships under private
law dealt with by the Civil
Code (persons, goods and contracts). By contrast with Mayotte’s
constitutional law (Law No. 2001-616
of 11 July 2001), which limits the
field of application of customary law to certain areas of personal law, New
Caledonia’s
equivalent law (institutional Law No. 99-209 of 19 March
on New Caledonia) bears on civil law as a whole, thus by definition ruling
out
the concept of a general law which would come automatically into play in any
circumstances not dealt with in customary law.
B.
Personal status under local law in the overseas collectivities
- In
French Guiana, French Polynesia, New Caledonia, Mayotte and the Wallis and
Futuna Islands, original populations (respectively Amerindians,
Polynesians,
Melanesians, Mahorais and Wallisians and Futunians) coexist in varying
proportions with non-indigenous populations.
- The
relative proportion of the indigenous and non-indigenous populations to one
another is difficult to establish given that France
does not cover ethnic origin
in censuses. It is, however, possible to contrast French Guiana, where
Amerindians represent less than
5% of the population, with the Wallis and Futuna
Islands, where the population is more or less homogeneous. In New Caledonia, 44%
of inhabitants are Melanesians, while the proportion of Polynesians in French
Polynesia exceeds 80%.
- The
nuances that need to be applied in interpreting these proportions should be
borne in mind, in the absence of precise information
about the populations
concerned.
- On
Mayotte, as in the two Pacific overseas collectivities of New Caledonia and the
Wallis and Futuna Islands, two personal statuses
exist alongside one another:
one under ordinary law, ruled by the Civil Code; and the other under local and
customary law. In its
Decision No. 2003-474 DC of 17 July 2003, the
Constitutional Council considered that: “once the Legislature had
decided not to question the existence of civil status under local law, [it] had
the power to make
provisions likely to bring about changes in the rules of such
status with the intention of making them compatible with the principles
and
rights protected by the Constitution.” By insisting that “the
result of the combined effect of these provisions [the Preamble to the
Constitution of the French Republic and Articles 1, 72-3 and 75 of the
Constitution] is that citizens of the Republic who retain their personal status
enjoy the rights and liberties attaching to French citizenship
and are subject
to the same obligations [ ]”, the Constitutional Council justified the
action taken by the Legislature to set aside regimes resulting from local
customary law,
such as marital repudiation, polygamy and inequality of children
for purposes of inheritance, which were exceptions to ordinary law
and capable
of conflicting with the principle of equality between men and women.
1. The situation in New Caledonia
- 55. In New Caledonia, according to the last census in 1996, the population was 196,836, compared with 164,173 at the preceding census
in 1989. At 31 December 2001, the population is estimated at 216,132, as a result of very dynamic demographic change. Almost half
the population is aged under 25.
- The
proportion of the population belonging to the various communities of origin is
as follows:
- The
basic unit of Melanesian life is the clan, which is a grouping of several
families. Between the different clans, there exists
an extensive network of
interchange and alliances. The clans share a common origin in the land and
regard New Caledonian territory
as an ensemble of places charged with mythic
significance.
- Melanesians
have been French citizens since the Constitution of 1946, which stated in
Article 80 the principle of recognising all those from overseas France as
citizens.
- The
Nouméa Agreement of 5 May 1998, to which Article 77 of the Constitution
gives full constitutional force, explicitly recognizes Melanesian identity and
establishes a citizenship of New Caledonia.
- The
effects of this citizenship, referred to in Article 77 of the Constitution, are
mainly electoral (the election of the Congress and the Provincial Assemblies).
In addition, Article 24 of the institutional
Law allows the local Legislature to
put in place measures for “the protection of local
employment” (that is, for local preference) for the benefit of
citizens of New Caledonia and of persons qualifying by a minimum period of
residence
(fixed by a local Law).
1.1 The coexistence of
ordinary law and customary law
- Changes
in New Caledonia in the institutional Law of 19 March 1999 represent an attempt
to balance the Republican principle of equality
with arrangements which take
account of the special features of the original population. The Law contains
provisions which favour
customary law and measures dealing with cultural
matters.
- The
Law provides for progressive transfers of competence to New Caledonia, creates a
citizenship of New Caledonia and consolidates
the civil status of the
Melanesians under customary law.
- The
institutional Law of 19 March 1999 is part of a continuous process following
from the Nouméa agreement, which puts custom
in the front rank of the
component elements of Melanesian identity. It devotes a Chapter to the customary
Senate and councils (Articles
137 to 152).
- The
last twenty years have seen the recognition of the traditional authorities
clarified and their role increased, especially after
1988, when the territory
was divided into 8 traditional
areas d[2].
These areas are represented by customary councils and each is composed of
several clans or “mound-lineages”, which recognize a common
and consistent set of customary laws, beliefs and customs, as well as a
relationship to a common ancestor,
considered to be the most ancient known
representative of all of the original families. Each of these areas decides the
composition
of its customary council, which is consulted on a very extensive
range of matters by the Senate, the High Commissioner and the Government.
Today,
New Caledonia has 57 districts and 340 tribes, 14 of them
“independent”, in other words located outside the areas
of
jurisdiction of the districts.
- The
way in which jurisdiction is shared has now been clarified: the President of
the Government of New Caledonia is notified of the
appointment of the customary
authorities, after this has been decided by the customary Senate, and the
customary authorities remain,
locally, the indispensable link with the public
authorities. Acting as the focus for contact between the Melanesian
collectivities
and the State administration, the Syndic for Traditional Affairs
confers official standing on the decisions taken by the tribe by
including them
in the official record of a tribal debate: since the beginning of the century,
this function has been fulfilled by
the gendarmerie. In the event of dispute
over the interpretation of an official record of a tribal debate, the parties
raise the
issue with the customary council.
- The
Customary Senate, which takes the place of the consultative council created by
the referendum Law of 9 November 1988, is consulted
on questions involving
customary practice, and takes part in the legislative process on local laws with
a bearing on Melanesian identity.
It consists of sixteen members designated by
each customary council, according to custom, who choose a President and an
executive
committee every year. The Customary Senate of New Caledonia takes part
in the preparation of rules on property law and civil law
- A
specific civil status for the Melanesian population, to be known as customary
civil status, is recognized in New Caledonia, applying
Article 75 of the
Constitution. This status is established by the first Part of institutional Law
No. 99-209 of 19 March 1999. At present, almost 90,000 people
have this
status in New Caledonia.
- The
provisions of Article 7 of the institutional Law provide for partial exceptions
to the Constitution, by offering the possibility, not only of passing from
customary civil status to civil status under ordinary law, but also of passing
from civil status under ordinary law to customary civil status (Articles 11, 12
and 13).
- The
recording of persons with customary civil status on special registers of civil
status kept in each commune by Mayors, acting as registrars, was begun by
a judgement of the superior appeal tribunal of Nouméa of 28 February
1920. This
was incorporated in a Decree No. 631 of 21 June 1934 on the
creation of a civil status for indigenous people, amended and supplemented
by
Resolution No. 424 of 3 April 1967, which was itself supplemented by a
Circular No. 13-2815 of 25 August 1967.
- The
Resolution of 3 April 1967 defined the rules which apply to the registration
service for the registration of citizens with special
civil status. To a large
extent, they coincide with the rules which govern civil status under the
ordinary law, but some differences
are provided for, for example, a time-limit
of 30 days for the registration of births.
- Alongside
the customary registers (of births, marriages and deaths), the communes
keep registers which contain details of the population of each tribe. The birth
of a child subject to customary law must be registered
(as under ordinary law)
in the commune of birth, but the person who registers it can also require
that the child is registered as a member of the tribe of the father. Article
10
of institutional Law No. 99-209 of 19 March on New Caledonia provides that
a legitimate, natural or adopted child whose father
and mother have customary
civil status, also has customary civil status.
- Custom
constitutes the foundation of Melanesian social interrelationships, as in other
Oceanian societies: a term which has layers
of meaning, it means at the same
time both the oral code which regulates Melanesian society and the
“traditional ceremony”
involving the giving of gifts and the
exchange of expressions of friendship on the occasion of a visit to a Melanesian
host. All
the distinctive features of customary life, and the High Chiefs
foremost among them, are imbued with its authority.
- To
avoid the fragmentation of traditional structures, the Imperial Government, by a
Decree of 24 December 1867, gave a legal existence
to the customary structure of
the tribe, which brings together in one place the members of one or more clans.
The imposition of this
geographically-based arrangement was supplemented by the
Decree of 9 August 1898, which set up districts, or groupings of tribes:
at
their head were placed High Chiefs, who in principle were chosen unanimously by
the council of elders, while minor chiefs ran
the affairs of the tribes.
- Melanesian
special status is a living system of customary law based on oral tradition. It
varies from place to place and now covers
the law of persons (civil status,
marriage, adoption and testamentary matters) and the regime for property (which
embodies the principle
of collective ownership by the tribe).
- A
debate has begun on the scope of application of Melanesian customary law in the
courts. Even though the Appeal Court of Nouméa
adopted an a
contrario interpretation of Article 1 of Law No. 70-589 of 9 July 1970
on civil status under ordinary
law e[2], by
inferring that customary Law governed only civil status and personal capacity,
matrimonial regimes, inheritance and gifts, the
Court of Cassation has
underlined by two
decisions f[2]
that customary law cannot be regarded as a subsidiary system of law.
- More
recently, in an opinion dated 16 December 2005, the Court of Cassation was
required to determine whether Article 7 (referred
to above) of the institutional
Law, which provides that persons with personal civil status are governed
“by their customs as
regards civil law”, applies to civil law in its
entirety, or only that part of civil law which is directly dealt with by
customary
law (many areas of law, such as tutelary assistance, are in practice
not dealt with in customary law).
- The
Court of Cassation retains full jurisdiction over issues dealt with in customary
law so that it can govern in their entirety all
of the private law relationships
dealt with in the Civil Code (persons, goods and contracts). In contrast to the
statute for Mayotte,
which limits the scope of the application of customary law
to certain areas of the law of the person, the statute for New Caledonia
addresses the civil law in its entirety, thus by definition ruling out the
notion that ordinary law would automatically apply to
fill any gaps left by
customary law.
1.2 The recognition of traditional lands
- Land
has a special importance in the rationale both for the recognition of Melanesian
identity and for establishing a new economic
balance in the territory.
- “Traditional
lands”, along with goods belonging to persons with customary civil status,
are governed by customary law.
The institutional Law defines this concept of
“traditional lands” as reserves of land, ownership of which is
ascribed
to groups subject to local customary law; and of land, ownership of
which is ascribed by the territorial collectivities or public
establishments
dealing with land questions (the Agency for Rural Development and Land
Management) in response to requests which have
been made on the grounds of
connection with the land.
- At
the legal level, these lands are an exception to the classic concept of
ownership. The institutional Law repeats the principle
that they are
inalienable, and not subject to cession, substitution or seizure, reflecting the
terms of the decree of Governor Guillain
of 1868 and territorial resolution
No. 67 of 10 March 1959 on the regime for indigenous reserves.
- The
Agency for Rural Development and Land Management, which has existed since 1988,
has ceded some 80,000 hectares back to the Melanesian
community since 1989. The
ownership of the land is recognized as belonging collectively to the tribes.
1.3 Absence of a separate court
- Order
No. 82-877 of 15 October 1982 followed through the implications of the
existence of a customary Melanesian civil status alongside
civil status under
the general law by establishing customary law judges responsible for sitting
with the normal courts dealing with
disputes between litigants with civil status
under customary law, including land cases (five customary law judges per
customary law
area).
- Article
19 of the institutional Law confirms this special arrangement, by empowering
customary law judges to sit with judges in the
civil courts of first instance
and appeal dealing with “cases and applications relating to civil
status under customary law or to traditional lands”. The function of
these customary law judges, who are aged over 25 and must be able to give
guarantees of competence and impartiality,
and who sit in numbers equal to those
of the other judges and have a vote when the court reaches its conclusions, is
to help the
ordinary law judge to gain a fuller understanding of the customary
rules which he must apply to persons with local civil status under
customary
law.
- Even
before the statute of 1999, Order No. 82-877 of 15 October 1982 set out the
practical arrangements for the involvement of these
customary law judges, of
whom there are five for each customary law area. The Order provides them with
powers to conciliate between
citizens with civil status under customary law and
allows disputes between citizens with civil status under customary law to be
brought
directly before the court of first instance in subject areas which are
governed by that status. The Court of Cassation upholds the
requirement for
customary civil law to be systematically applied by conventional judges sitting
with customary law judges whenever
the case concerns a person with local civil
status.
2. Mayotte
- The
island of Mayotte has been a cultural and religious melting-pot with very strong
African, animist, Bantu and Islamic influences.
The Muslim religion has been
established there since the fifteenth century and has a major influence on how
society is organized:
95% of the population of the island is Sunni Muslim. The
mother tongue of the Mahorais is either Shimaore (Swahili in origin) or
Kibushi
(Madagascan in origin).
- Traditional
society on Mayotte works on the principle that group interests take precedence
over individual interests, and is matriarchal
(with filiation determined through
the maternal line and with the home of the mother as the family’s place of
residence). The
culture is underpinned by a rich oral tradition.
- Customary
law inspired by Islamic law and African and Madagascan customs applies to
persons who have retained their personal civil
status, as permitted by Article
75 of the Constitution. The Law of 11 July 2001 on Mayotte preserves this local
civil status based on customary law and sets out the scope for renouncing
this
status in favour of civil status under ordinary law.
- Personal
civil status is essentially concerned with personal and family rights, and with
inheritance rights. So, in these areas, persons
who have retained their personal
civil status are subject to special rules.
- There
are special courts which have jurisdiction over litigation arising from the
application of local law.
- The
legislature has taken action to set aside exceptional regimes, arising from
local and customary law, which were incompatible with
the equality of men and
women in the Collectivity of Mayotte.
2.1 Civil status under
local law
- The
Constitutions of the Fourth and Fifth Republics gave general application to the
system of dual civil
status g[2],
while limiting the field of application of personal status to questions of
personal civil standing and capacity, matrimonial regimes,
inheritance and
giftsh[2].
- Society
on Mayotte, which is predominantly Muslim, and its personal civil status
embodies a number of legal traditions including the
precepts of the Sunnah.
- A
number of provisions have aligned civil law on Mayotte with that in force in
metropolitan France.
- Order
No. 2000-219 of 8 March 2000 on civil status on Mayotte made it compulsory
for both bride and groom to appear personally so
as to establish the free and
full consent of both as well as to ensure the presence of a registrar at the
celebration of the marriage.
-
Law No. 2001-616 of 11 July 2001 on Mayotte asserted the right of women
with civil status under local law to the free exercise of
a profession either as
a self-employed or employed person, along with the rights and duties attaching
to this freedom. This Law also
specified the rules governing the reconciliation
of civil status under local law with civil status under ordinary law and
arrangements
for the renunciation of civil status under local law.
- Order
No. 2002-1476 of 19 December 2002 on the extension and adaptation of
arrangements for the civil law on Mayotte helped to bring
civil law on Mayotte
to brought into line with that in force in metropolitan France.
- The
Law on programming for the overseas territories No. 2003-660 of 21 July
2003, amending Law No. 2001-616 of 11 July 2001 on Mayotte,
allowed a
significant advance in equality between men and women by establishing monogamy
and termination of marriage by divorce,
prohibiting unilateral repudiation and
forbidding discrimination between children on matters of inheritance based on
their sex or
the legitimate or natural character of their birth. Article 68 of
the Law of 21 July 2003 amends Part VI of the constitutional Law of 11 July 2001
on Mayotte so as finally to restrict the field of application of personal civil
status
under local law to the civil status and capacity of persons, matrimonial
regimes, inheritance and gifts, to the exclusion of all
other aspects of civil
life.
- Law
No. 2004-439 of 26 May 2004 on divorce complemented this reform on two
points: the general law procedure for divorce was made
available in the case of
divorce between persons with civil status under local law and access to the
ordinary law judge was made
possible for the party who applies for divorce
first.
- The
profound change made by these reforms to civil status under local law undeniably
allows it to evolve in ways which are consistent
with Republican principles,
without calling into question its fundamental existence, which is guaranteed by
the Constitution.
2.2 Cadi courts
- On
Mayotte, citizens with civil status under local law are able, if the instigating
party so wishes, to refer some types of litigation
to courts presided over by
cadis, which are customary courts under Islamic law.
- This
system was explicitly preserved by Article 1 of the treaty of 25 April 1845. Its
organization is provided for in Resolution No.
64-12a of 3 June 1964 of the
Chamber of Deputies of the Comoros on reorganization of procedures for Islamic
justice and the Decree
of 1 June 1939 on the organization of native justice in
the Comoros archipelago, amended by Order No. 81-295 of 1 April 1981 on the
organization of justice on Mayotte.
-
The civil status under local law applicable on Mayotte established by Law
No. 2001-16 of 11 July 2001 (Title VI) takes account of
the fact that
almost 95% of the populations of Mayotte belong to the Muslim faith. France has
found ways to develop and manage the
system of cadial justice (the customary
courts under Islamic law), ensuring that special local considerations are
respected. The
customary judicial system is organized around three courts:
- Since
the passage of programming Law No. 2003-660 of 21 July 2003 for overseas
France and Law No. 2004-439 on divorce, cadis can take
cases between
persons with civil status under local law in the following areas of law: cases
concerning personal status and capacity,
marriage, with the exception of
divorce, and judicial separation. They also have jurisdiction in minor cases
concerned with inheritance,
gifts and liabilities.
- Outside
their jurisdiction are: criminal matters, tutelary assistance and disputes of
medium and high value over liabilities.
- Until
the coming into force of Law No. 2006-911 of 24 July 2004 on immigration
and integration, cadis celebrated the marriages of
persons with local legal
status i[20].
Since then, they are celebrated in the mairie by the registrar in the
presence of two witnesses, which allows the consent of both parties to be
clearly established.
- Cadial
justice makes no explicit provision for the representation of children in
proceedings which concern them.
3. The Wallis and Futuna Islands
- The
Law of 29 July 1961 provides that “The Republic shall guarantee to the
population of the Wallis and Futuna Islands the free exercise of their religion
and respect for
their beliefs and customs in so far as they are not contrary to
the general principles of the law and to the provisions of this Law”
(Article 3)
- The
constitutional statute for the Wallis and Futuna Islands takes account of its
indigenous political structures. The statute retains
the traditional chiefs
(Sau), who are commonly referred to as “Kings”, and thus
gives effect to the organization of society according to customary rules. The
“Kings” are members of a territorial council, which assists
the senior administrator. The territory is divided into three districts, which
correspond to the three “Kingdoms” (Wallis, Sigave and
Alo).
- Traditional
social structures on the Wallis and Futuna Islands continue to show strong
influence by the Catholic church. They still
rest largely on a clan-based
conception of the family and on avoiding division of inherited land.
- Almost
all of the population have retained their personal status, and are governed by
customary rules which are characterized by specific
rules in relation to civil
law (the law of the person and the inheritance of property).
- Article
2 of Law No. 61-814 of 29 July 1961 confers French citizenship on the
inhabitants of the Wallis and Futuna Islands. In addition,
the Law specifies
that French citizens “who do not have civil status under the ordinary
law shall retain their personal status provided that they have not expressly
renounced it (Article 2).
- As
for the courts, Article 5 provides for the creation of a tribunal applying the
ordinary law within the jurisdiction of the court
of appeal of Nouméa,
and a tribunal applying local law. For disputes between citizens governed by
local law and for disputes
involving possessions held according to custom, the
ordinary law tribunal has never been put into operation, leaving a purely
customary
system of justice. In criminal matters, the jurisdiction of the
ordinary law judge is unambiguously asserted by the law of 1961.
- The
three “traditional Chiefs” (Sau) of the Wallis and Futuna
Islands, who are commonly called “Kings”, are the supreme
customary authorities. They each have an entourage of five dignitaries, or
“Aliki Fau”, more often known as “customary
ministers”, a master of ceremonies and a chief of
“police”.
- The
main task of the chiefs’ organizations is to ensure that the traditional
rules that they are there to uphold are observed.
These rules govern dealings
within the community and between the community and its environment.
- Each
king to some extent embodies the basic memories of his people and is their
supreme judge. He is reputed to know the genealogy
of each family and the
boundaries of its property.
- The
ownership of land is collective, inalienable and immune from cession, according
to the customary law that applies to persons with
personal civil status, who
constitute about 99% of the population of the Wallis and Futuna Islands.
- There
are three distinct types of “property”:
4. French
Guiana
- For
a long time, traditional societies have co-existed alongside Creole and European
societies. They have retained family and social
structures and customs with very
distant origins.
- The
Amerindian population of French Guiana includes six ethnic groups: Arawak and
Galibi, who live on the coast, are the most numerous
(about 6,000); Palikur,
Emerillon and Wayapi (a few hundred strong) live mainly on the banks of the
Oyapock river; and in the interior,
the Wayana live along the upper Maroni.
- The
Amerindian populations of French Guiana have been subject to a very liberal
governance system since the Inini territory was set
up in 1930.
- The
“Noirs-Marrons” or Bushi-Nengi are descended from populations which
established themselves in the hinterland of Surinam
and on the Maroni in order
to escape from slavery. There are four ethnic groups of Noirs-Marrons: the Boni
(or Aluku), living at
Apatou, Papaïchton and Maripasoula; the Djuka living
at Grand-Santi on the Maroni; and the Paramaca and Saramaca, who originate
from
Surinam.
- The
Hmongs have established themselves much more recently in French Guiana, in the
1970s, to escape the war in Indochina. They have
set up two main villages:
Cacao and Javouhey.
- A
specially adapted system of regulation has grown up over time which takes
realistic account of the traditional customs of the country.
- To
protect the health and culture of the Amerindians, a decree of 14 December 1970
made access to Amerindian territory subject to
prefectoral authorization.
5. French Polynesia
- Institutional
Law No. 2004-192 of 27 February 2004 grants autonomy to French Polynesia,
stating in Article 1 the concept of “Respect
for its particular
geographical circumstances and the identity of its population”. The
collectivity has full competence in
environmental matters, the exploitation of
natural maritime resources and cultural development. In addition, Polynesian
languages
are recognized and the study of the country’s culture and the
Tahitian language form an integral part of the timetable and
teaching in
schools.
II. FREEDOMS AND CIVIL RIGHTS
A. Personal civil status
1. The identity of the child
- Law
No. 2002-93 of 22 January 2002 on access to personal origins for adopted
persons and wards of the State applies in French Polynesia
and New Caledonia.
The State has agreements with French Polynesia and New Caledonia which govern
the transmission of data about the
child and birth parents to the National
Council for Access to Personal Origins.
- The
task of the National Council for Access to Personal Origins is to ensure that
the overseas départements and collectivities have information on
the arrangements established by the Law. The Minister for Overseas France sits
on its governing
board.
1.1 Civil status on Mayotte
- The
duality of legal systems (ordinary and customary) entails a twin system of civil
status. Until 2000, this situation caused legal
uncertainty for reasons which
included the different rules (governing arrangements and time-limits for making
entries and issuing
family civil-status books, the powers of registrars and the
courts which had jurisdiction) which applied to the keeping of the registers
of
civil status.
- There
was a general problem of registers which were missing or in a poor state of
preservation, often poorly maintained and damaged
or even lost altogether owing
to climatic conditions (such as cyclones and very high humidity) and termites.
What is more, some births
were not registered (in particular those of girls or
children born outside marriage), marriages were not systematically registered
and repudiations were almost never registered at all. This meant that a part of
the population did not know which type of law it
came under: errors in
recording caused difficulties in proving French nationality. At the time,
supplementary rulings made by the
cadis often took the place of civil status,
for lack of an extract from the register of births or a standard dossier
establishing
civil status.
- Added
to this, because of the co-existence of a tradition of African (Bantu) origin
and Islamic law, no transmissible name derived
from the father’s name
existed, which made the reliable establishment of civil status very difficult.
It meant that how a person
was identified varied over the course of life. Each
person had in succession a name indicating filiation, made up of the phrase
“son”
or “daughter of” and the father’s given
name, then a name indicating parenthood, composed of the word “Ba”
(father) or “Ma” (mother) of, and the given name of the eldest son.
In the “third age”, the name became “grandfather
of” or
“grandmother of”. On Mayotte, the name indicating parenthood had
main place, as in traditional Arab cultures.
- In
addition, the father would keep the name of his child secret in order to protect
him or her against bad luck. In everyday life,
a pseudonym was used, and the
cadi could also be asked to change the given name of an individual for
traditional reasons, after an
illness, for example.
- Thus,
the individual’s identity included various elements: the parent-name, the
usual or family given name, not declared to
the civil status registry and used
in relations with close connections, a nickname and a given name which would be
declared to the
civil status registry and used at school and in relations with
officialdom.
- Order
No. 2000-219 of 8 March 2000 on civil status on Mayotte, since amended,
gave an opportunity to clarify and simplify this situation:
- Law
No. 2006-911 of 24 July 2006 on immigration and integration provides that
declarations of births must take place on Mayotte in
the manner stipulated by
Article 55 of the Civil Code. It also makes it compulsory for marriages of
persons with customary civil
status to take place in the mairie, in the
presence of the registrar and two witnesses. Previously the cadi, who is the
customary judge under Islamic law, was also
a registrar, and was therefore able
to celebrate marriages: the reform of 2006 allows guarantees to be obtained
that the woman has
given her consent, and obviously does not prevent a religious
marriage following the civil ceremony.
- The
stakes in the modernisation of civil status are high. It is about asserting the
rights of everyone, in his or her capacity as
a person with clear individual
standing, and making sure that, from the time of birth onwards, he or she has an
official and permanent
identity. Apart from establishing the use of a family
name deriving from the father and of a number of given names, the establishment
of a universal civil status forms part of the process of advancing towards the
status of a département.
- The
State has agreed to a substantial effort to give financial backing to help the
communes to equip and organize themselves. Article 22 of Order
No. 2000-219 of 8 March 2000 on civil status on Mayotte has provided that
the
State should make computer equipment available to the communes for
this purpose.
- In
2001, Mayotte made the transition from a territorial collectivity to that of a
departmental collectivity, as a staging post towards
acquiring the standing of a
French département. This change assumes the progressive
application of Republican rules and laws. Accordingly, laws and decrees on
nationality, matrimonial
regimes, criminal law procedures, electoral laws and
administrative procedures have been progressively put in place. At the same
time, since 2001, the Island has been provided with a General Council, a
registry of births, marriages and deaths, a land registry,
an urban development
code and an environmental code. This new suite of legal institutions has changed
society on Mayotte.
- “Nameless”
persons have been invited to choose a parental name from a list drawn up by a
committee on parental names,
with legitimate children taking the names of their
fathers and natural children those of their mothers.
- The
Review Committee on Civil Status, set up by Order No. 200-218 of 8 March
2000 laying down rules for the determination of family
names and given names for
persons with civil status under local law on Mayotte, has the following tasks:
- The
mandate of the Committee, which was set up in April 2001, has been extended for
a period of five years by Decree No. 2005-1620
of 22 December 2005. Between
starting its work and 31 December 2005, the Committee in fact issued only 33,000
decisions, which allowed
the establishment of entries for 31,861 births, 6,978
marriages and 434 deaths. Bearing in mind the total population with local civil
status on Mayotte, the number of decisions still to be made is still
substantial.
- The
Committee has been given the task of reconstructing the civil status registry
prior to 2000. The decision has been taken to provide
the mairies
with specially adapted computer equipment, capable of dealing both with ordinary
law and local law entries, to help them to establish
a viable civil status
registry.
1.2 Civil Status in French Guiana
- Many
thousands of people living along the Maroni and Oyapock rivers find themselves
today without civil status. This poses many problems,
both in terms of
monitoring net migration and for the people concerned when they wish to travel
within French Guiana or, for example,
to study at a lycée or university.
These Amerindian populations, the first inhabitants of the region, and
descendants of “Marron” slaves who escaped from plantations
in Dutch Guiana in the 18th century, are living without
nationality at Apatou, Grand Santi, Papaïchton, Maripasoula and
Saint-Laurent-du-Maroni, communes of French Guiana forming enclaves
between the Maroni river and the Amazonian forest on the border of Surinam.
- Members
of a single tribe may equally well live on the left or right bank of the Maroni
river, which raises two major problems:
- Up
until 1969, when the first of the communes on the river were created,
there was no real civil status registry service in this region of French Guiana.
The absence of land routes,
the immense size of the Maroni valley region (500km
of river) and its isolation, upstream from Saint-Laurent, were the main
obstacles
to establishing one. The inhabitants, living well away from the seats
of civil administration, have often not been registered at
birth.
- To
deal with this situation, Order No. 98-580 of 8 July 1998 extended the
time-limit for the declaration of newborn children to the
registry of civil
status in the riverside communes of Maroni and Oyapock in the interior of French
Guiana to thirty days, instead
of the time-limit of three days applying in
ordinary law. In addition, a campaign to take a “census of French citizens
lacking
civil status” was begun in June 1998.
- An
administrative census of populations without civil status along the Maroni was
put into effect to set in motion with the intention
of subsequently making legal
applications for judicial declarations of civil status to the tribunal de
grande instance (regional court) of Cayenne.
- First,
joint committees of the customary and ordinary authorities studied dossiers,
based on testimony, on candidates who stated that
they were born on the French
Guianan bank of the river, and not on the Surinam side. By the end of 2000, out
of 2,015 candidates,
774 obtained a declaratory judgement acknowledging that
they were born in France.
- For
the Amerindian population, a degree of tolerance is applied by the French
registry of civil status. This allows traditional names
to be entered directly
onto children’s identity cards.
- The
registration of births along the Maroni river nevertheless remains something of
a matter of chance, as the frontier with Surinam
is difficult to monitor.
1.3 Civil status in New Caledonia
- The
requirement to register persons with customary civil status in special civil
status registers by the mayor acting as civil registrar
was laid down in a
decision of the Nouméa Superior Court of Appeal on 28 February 1920. It
was reiterated in Order No. 631
of 21 June 1934, establishing a civil
status for indigenous people, which was amended and supplemented by Resolution
No. 424 of 3
April 1967, which in turn was supplemented by Circular
No. 13-2815 of 25 August 1967.
- The
Resolution of 3 April 1967 defined the rules governing the registry service for
citizens with specific civil status, which coincide
to a large extent with
the rules on ordinary-law civil status but make certain changes, such as,
for example, a 30day deadline for
the registration of births.
- In
addition to the usual registers (births, marriages and deaths), the
communes also keep records on population census figures for each tribe.
The birth of a child with customary civil status must be registered,
as is the
case under ordinary law, in the commune of birth. The person reporting
the birth may also ask for the child to be registered as a member of the
father’s tribe.
2. Non-discrimination
2.1 The age of marriage
- The
new Article 144 of the Civil Code provides that in future “a man or a
woman cannot marry before reaching the age of 18”.
This article applies to
overseas collectivities as a whole. Statutes and regulations apply ipso jure in
the overseas departments
and regions (Guadeloupe, French Guiana, Martinique
and Reunion) based on the principle of “legislative identity” or
“assimilation”
(Constitution, Article 73). Lastly, article 144 of
the Civil Code, concerning the status of persons, applies ipso jure in Mayotte
(Article 3 of Law No. 2001-616 of 11 July 2001 on Mayotte, art. 3) and
in Saint-Pierre and Miquelon (Law No. 85-595 of 11 June 1985
on the status
of the Saint-Pierre and Miquelon archipelago).
2.2 Equality in
inheritance matters
- In
the overseas départements and collectivities, access (or absence
of access) to economic and social rights is identical for every community and
there are no
cases of discriminatory practice that could affect particular
categories of children.
- Law
No. 2001-1135 of 3 December 2001 on the rights of surviving spouses and
adulterine children and modernising various provisions
of the law of inheritance
applies in the overseas collectivities (with some modifications).
- On
Mayotte, programming Law for overseas France No. 2003-660 of 21 July
2003, allowed for a significant advance in equality between men and
women by
establishing monogamy (polygamy is prohibited for citizens aged 18 after 1
January 2005), the termination of marriage by
divorce, the prohibition of
unilateral repudiation and the banning of discrimination between children over
inheritance rights based
on gender or on legitimate or natural birth.
B. Freedoms of the individual
1. Freedom of expression
- The
principle of freedom of expression is respected throughout the French overseas
collectivities. One particular point about the
Wallis and Futuna Islands should
be noted, however.
- The
population Wallis and Futuna Islands is a little under 15,000, of whom10,071
live on Wallis (Uvéa) (67%) and 4,873 on Futuna
(33%). The population is
strikingly young, with 45% aged under 20.
- In
the social traditions of the Islands, modes of speech and expression are highly
codified. Children do not speak directly to adults
unless directly invited to do
so. The respect felt for hierarchical authority in traditional society creates
pressure for acquiescence
in this situation, although it leaves young people
without a clear locus or social context in which they can express themselves.
- For
this reason, dialogue, argument and the exchange of views more generally, cannot
take place in a conventional way.
- On
the Wallis and Futuna Islands, action to promote freedom of expression has been
taken in a number of ways. The work of the inspectorate
of the national
education service, backed up by special training activities, has succeeded in
developing lessons for building the
competences needed for dealing with these
communication challenges.
- Evaluation
of the action taken shows real progress with spoken language. Work must now turn
to dealing with written language.
- Finally,
it is now possible in schools to apply the legislation in force on
children’s rights to pictorial or verbal expression,
thanks to stringent
guidelines and systematic monitoring arrangements.
- Young
people receive a high level of attention from State services on the Wallis and
Futuna Islands. So that their expectations could
be taken in account, the first
youth conference for the young people of the Islands was held from 8 to 10
December 2006. More than
a thousand young people had been involved in advance
through a series of working meetings held over several weeks in the various
villages with sports and cultural associations, the chiefs’
establishments, elected representatives and the religious authorities.
- Young
people had the opportunity to talk about their needs in five areas: education
and training, culture, sport, leisure and voluntary
activity. This conference
was very successful, and threw up many concrete examples of areas in which young
people felt dissatisfied.
The new contract for development will allow the State
to be the motive force in developing youth policy for the Islands.
2. Access to information
2.1 Coverage of media services
- In
the heart of the Pacific, the Caribbean or the Indian Ocean, French overseas
collectivities have access to a broad range of media
services, although the
Wallis and Futuna Islands are lagging slightly.
- On
the Wallis and Futuna Islands, coverage offered by media services is
limited: there are no local newspapers, cultural centres or public
reading-rooms, and Internet
access for very few indeed. Only Radio France
Overseas provides a radio and televised information service, so that, on the
whole,
media communications are extremely limited.
- The
Vice-Rector’s office is making strenuous efforts to improve this situation
by creating more school libraries and, eventually,
by equipping all schools with
IT equipment that will allow real access to information.
2.2 The
commemoration of slavery
- The
Law of 21 May 2001 for the recognition of slavery and the slave trade as a crime
against humanity makes provision for a Committee
of qualified persons. The
Committee for the Remembrance of Slavery (le comité pour la
mémoire de l'esclavage, CPME),
set up by Decrees of 5 and 15 January
2004, has 12 members selected for their achievements in research in the field of
slavery and
the slave trade, for having taken an active part in voluntary action
to defend the memory of the slaves and for their knowledge of
overseas France
(Maryse Condé is the Chair, Françoise Vergès the
Vice-Chair).
- The
Ministry for Overseas France provides the secretariat for the committee, whose
tasks are to make proposals:
- Finally,
the Committee awards a prize each year for a doctoral thesis on these subjects.
It submits a report each year to the Prime
Minister on its activities
- In
his address of 30 January 2006, the President of the Republic accepted the
proposal that 10 May should be a day for honouring the
memory of the slaves and
commemorating the abolition of slavery. The Decree of 31 March 2006 made this
date official. The first commemoration
day on 10 May 2006 was a great success
with voluntary organizations and public establishments, including schools,
mairies and other
local bodies. Expectations were high, but the day lived up to
them, and fulfilled its objective of showing respect for the memory
of those
affected by slavery and sharing a story which belongs collectively to all
citizens. On 10 May 2007, the President of the
Republic inaugurated a
memorial in the Luxembourg gardens and a large number of other events were held.
- The
Committee’s second report, in 2007, took stock of the events held and
action taken in 2006 and proposed new lines to follow:
3. Liberty
of thought, conscience and religion
- The
principle of secularism is one of the principles and rules that have
constitutional significance and apply across the whole of
the territory of the
Republic. It follows that religious beliefs can have no part in determining the
personal civil status of citizens
resident in overseas France.
- The
island of Mayotte has been a cultural and religious melting-pot with very strong
African, animist, Bantu and Islamic influences.
The Muslim religion has been
established there since the fifteenth century and has a major influence on how
society is organized:
95% of the population of the island is Sunni Muslim.
Children attend Q’uranic school, generally in the early mornings before
secular school. Teaching is by a “fundi”, an unpaid mentor who may
be female, who is able to read and write the Q’uran.
In practice,
Q’uranic school is pretty much a place where children can learn the rules
governing life in society. It is also
a means of looking after children while
parents work. There is no set curriculum and all that is taught is the basics of
reading
Arabic and the learning by heart of the Surrahs of the Q’uran.
- For
the Wallis et Futuna Islands, Article 3 of Law No. 61-814 of 29 July
1961 reiterates that the Republic guarantees the population of the territory the
free exercise
of their religion, along with respect for their beliefs and
customs provided that they are not contrary to the general principles
of the law
and the provisions of the Law of 29 July 1961 itself.
- Catholicism
is overwhelmingly the majority religion. At primary level, no State schools
exist. The new Convention 2007/2011 dealing
with negotiations on the delegation
of primary education to the Catholic missions contains an article that provides
for strict observance
of liberty of conscience. Work done jointly with the
Catholic educational authorities has provided for the broadening of religious
education beyond the catechism towards an approach which addresses the teaching
of religious matters on a more inclusive basis.
- No
principle is enforced in New Caledonia relating to the wearing of insignia
denoting a particular religious affiliation
4. The right to a cultural identity
- The
school population of the overseas collectivities and départements
currently numbers around 711,000 pupils and nearly 30,000 students (engaged in
study at university level). The expansion of the school
population – in
the region of 3.5% over the past five years – is higher than in
metropolitan France, where the school
population has been stagnant or, indeed,
has been falling by about 1.3%.
- The
trend is not, however, uniform throughout the overseas collectivities. There has
actually been a more striking increase in two
of those collectivities, namely
Mayotte with an increase of 22% over the past three years and French Guiana
where the school population
rose by 15% during that same period. The reasons for
this include a high birth rate combined with a high level of positive net
migration.
- These
specific features of the situation in the overseas collectivities and
départements have prompted France to embark on a major project to
provide equipment and human resources in order to make good any shortfall in
the
educational field.
- As
far as school and university buildings in the overseas
départements are concerned, in addition to paying decentralisation
grants, the State, exceptionally, is involved directly in funding the
infrastructure
required to increase the number of places available in the
context of the regional development contracts. In relation to the overseas
collectivities, the State is involved via the different contractual arrangements
that have been set in place for them individually.
- Turning
to the provision of human resources, the State has made a significant effort to
create teaching posts, as well as training
and administrative positions for the
overseas départements, particularly within those education
authorities experiencing the greatest shortages, in French Guiana and
Réunion. Creating
those posts has made it possible, among other things,
significantly to improve training rates which are currently higher, in the
field
of secondary education, in Martinique, French Guiana and Guadeloupe than in
metropolitan France.
- Furthermore,
France has implemented specific responses in terms of quality. Learning Creole
must facilitate improved mastery of the
French language and make it possible to
combat the problems implicit in a bilingual society. The creation of a CAPES
(Certificat d’aptitude au professorat de l’enseignement du second
degré – secondary school teacher’s diploma) in Creole
forms part of teacher training policy in this area. The recognition
of regional
identities has led to history and geography syllabuses being adjusted to reflect
actual circumstances in overseas France.
- The
creation of an office of deputy director of education in Mayotte, in 2000, and
the establishment of a regional centre for pedagogical
materials and a
university institute for teacher training in each of the educational authorities
of the overseas départements are part of the process of improving
the educational environment and training opportunities. Furthermore, the
development of new
information and communication technologies is the subject of
integrated planning within the academic programmes. For the past six
years, the
French Ministry of Education (Education Nationale) has substantially
increased the number of places available in schools. Mayotte has benefited from
an unprecedented effort to build
new establishments (five schools) that are both
functional and attractive, and existing facilities have been re-built and
upgraded.
- State
responsibilities in relation to training in New Caledonia, French Polynesia,
Wallis and Futuna and Mayotte are carried out by
a deputy director of education.
In Saint-Pierre-et-Miquelon, those functions are performed by a chief education
officer. Responsibilities
are allocated on the basis of the statutory
arrangements for each collectivity. In Mayotte, for example, as far as primary
education
is concerned, the municipalities are responsible, for building and
maintaining schools, while the French State has responsibility
for all secondary
education. In Saint-Pierre-et-Miquelon, the State is responsible for both
primary and secondary education.
4.1 In the overseas
collectivities
4.1.1 New Caledonia
- Measures
have also been introduced in the cultural field and to enhance the standing of
the regional languages in overseas France:
educational programmes have been
adjusted in line with the cultural and linguistic circumstances for which the
provinces have responsibility;
the Melanesian languages have been recognized as
teaching and cultural languages (organic law of 19 March 1999), including by way
of commitments in relation to teaching, scientific and university research [sic]
and teacher training. Article 215 of the 1999 organic
law also provides that, in
order to contribute to the cultural development of New Caledonia, the latter is
to enter into a specific
agreement with the State, after taking the opinion of
the provinces. That agreement relates, in particular, to Melanisia’s
cultural heritage and the Tjibaou cultural centre, and was signed on 22 January
2002. As far as teaching and teacher training are
concerned, under that specific
agreement between the State and New Caledonia, commitments have been entered
into in relation to teaching,
scientific research and university teaching and
teacher training.
- Article
210 of the law also stipulates that multi-annual development contracts are to be
concluded between the State, on the one hand,
and New Caledonia and the
provinces on the other. The development contracts are to be concluded and
renewed for a five-year period.
- The
actions and measures for which the contracts provide promote access to basic
training and continuing education, the integration
of young people, economic
development, improvement of peoples’ living conditions and cultural
development.
- In
1999, New Caledonia introduced university teaching of the four Melanesian
languages available in the context of the Baccalauréat
(school leaving
certificate), leading to the award of a general university studies diploma
(DEUG). That qualification was included in the 2000-2003 institutional
contract entered into between the Ministry of Education and the
University of
New Caledonia.
- The
agreement also provides for the teaching of the Melanesian languages to be
included in the training of primary and secondary school
teachers at the
territorial teacher training institute and the university teacher training
institute for the Pacific respectively.
In relation to the Pacific Teacher
Training College (Institut universitaire de formation des maîtres
– IUFM)), that training was included in the institutional contract
concluded with the Ministry of Education for 2000-2003. The latter agreement
also makes provision for the creation of an academy of Melanesian languages, a
territorial public-law institution.
- In
New Caledonia, the State is responsible for higher (university) education and
– until its transfer to New Caledonia, as of
2009 – State and
private secondary education, except secondary school building, private primary
education and school health
services.
- Pursuant
to article 22 of Organic Law No 99-209 of 19 March 1999, New Caledonia has
responsibility for primary education: [including]
syllabuses – except
where the provinces are responsible for adjusting them in the light of cultural
and linguistic circumstances
– teacher training and teaching
supervision.
- In
New Caledonia, the municipalities are responsible for building, maintaining and
equipping State schools. Education and culture
are essential areas of
activity.
- Moreover,
pursuant to article 181 of Organic Law No 99-209 of 19 March 1999 on New
Caledonia, the State annually accords the provinces,
separately from development
contracts, a general grant for building and equipping schools. In 2000, that
grant at least matched the
total funds which the provinces allocated to the
construction and equipment of schools, established as an average for the
previous
three financial years. As of 2001, that grant is determined according
to student numbers in State schools.
- French
is the official language of New Caledonia, alongside the 27, all very different,
vernaculars. However, even though French is
spoken even among the most remote
tribes, fluency in French varies throughout the population. The fact that
fluency in French is
uneven is largely a matter of schooling. Melanesian
children have had general access to State schools since 1953.
- All
of the vernaculars are transmitted orally and are spoken in very clearly defined
geographical (linguistic) areas.
- The
most significant languages are (figures from the 1996 survey): Drehu spoken on
Lifou (11,338 speakers); Nengone spoken on Maré
(6,377 speakers);
Paicî spoken in Poindimié, Ponérihouen and Koné
(5,498 speakers); Ajië spoken in
Houailou (4,044 speakers); and
Xârâcùù spoken in Canala and Thio (3,784
speakers).
- The
languages with the fewest number of speakers are Arhö (Poya/Houailou, 62
speakers); Arhâ (Poya/Houailou, 35 speakers)
and Pwapwâ – or
Poapoa – (Gomen, 16 speakers). Sishö (Bourail region) is barely
spoken any longer (4 speakers
at the time of the 1996 survey), and Wâmwang
(Koné) is considered to be extinct.
- The
indigenous languages are all of the “Melanesian” family, except for
one that is classified as “Polynesian”
(Faga Uvea), and are related
to the “Oceanic languages” which form the eastern subdivision of
what is known as the “Austronesian”
family.
- The
languages of the communities of Wallisian and Polynesian origin (Polynesian
languages), Vietnamese, Indonesian and Caribbean origin
(Creole), and Vanuatuan
origin (Bichlamar) are also used. They account for 400,000 speakers.
- The
vernaculars in primary education: since 1990, a letter from the Minister of
Education has provided a framework for the teaching
of mother-tongue languages
at primary level. In nursery education, there is provision for children to be
taught in their mother tongue
when they arrive at school and gradually be
introduced to French. In primary schools, five hours per week are timetabled for
that.
Since 1998, under the Nouméa Agreement, “the Melanesian
languages are the languages of education and culture, together
with
French”.
- Nonetheless,
education policies vary significantly from one province to another, between the
State and private sector and between
different elements of the private sector.
Those differences result from the effect of special local factors on the state
of language
teaching in each region.
- The
integrated mother-tongue teaching programme introduced by the Islands Province
after an experimental period has been in force
since 1992 in all of the
Province’s State and private schools.
- The
objectives of the integrated mother-tongue teaching programme are as
follows:
- The
PHAX project derives its names form the initial letters of the four cultural
areas of the Northern Province (Paicî, Hoot
Ma Whaap, Ajië and
Xaracùù). It was created because the Northern Province wished to
“respect differences and protect unity by preserving
diversity”.
- Four
regional Melanesian languages (Aijië, Drehu, Nengone and Paicî) are
taught at secondary level. Since 1992, those four
language shave been included
in oral and written tests for the Baccalauréat.
- In
2006, educational statistics for New Caledonia are as follows:
- – 68, 735 pupils (at primary and secondary level);
- – 356 educational establishments, including 285 schools (67 State nursery schools, 128 State primary schools, 16 private nursery
schools under contract and 74 private primary schools under contract), 50 secondary schools (collèges) (27 State secondary
schools and 23 private secondary schools under contract), 9 general and technological lycées and 12 vocational training lycées;
- – for the 2005 academic year, 6,973 secondary education certificates were awarded (370 general education certificates, 2,854
diplomas, 1,924 technical schools certificates and 1,825 Baccalauréats).
4.1.2 French
Polynesia
- Within
the chapter that deals with cultural identity, article 57 of the organic law of
27 February 2004 provides that French is the
official language of French
Polynesia. It must be used by public-law entities and persons governed by public
law providing a public
service, as well as by users in their relations with the
authorities and public services.
- However,
the framework law provides that the Tahitian language is an essential element of
cultural identity: underpinning social cohesion
and a means of daily
communication, Tahitian is recognized and must be preserved, like the other
Polynesian languages, alongside
the French language, so as to secure the
cultural diversity that is among the treasures of French Polynesia.
- French,
Tahitian, Marquesan, Paumotu and Mangarevan are the languages of French
Polynesia. Private-law individuals and legal entities
use them freely in their
acts and agreements, which remain valid even if they are not drafted in the
official language.
- Tahitian
is a subject that is taught as part of the normal time-table in nursery and
primary schools, in secondary schools and in
higher education establishments.
- By
decision of the Assembly of French Polynesia, Tahitian may be replaced by one of
the other Polynesian languages in some schools
or other educational
establishments.
- The
study and teaching of the Tahitian language and culture are catered for in
teacher training institutions.
- The
University of French Polynesia offers a course in the Tahitian language
(DEUG/Degree/Masters) and the Polynesian branch of the
Teacher Training College
for the Pacific has been preparing a secondary school teaching diploma in
Tahitian/French since 1998. There
is a compulsory test in Tahitian for primary
school teachers wanting to join the French Polynesian corps of the French public
administration.
In addition, the University of French Polynesia offers a
training module in Tahitian as part of the training which it provides to
prepare
candidates for the administrative competitions for the local civil service.
There is also a proposal to create an academy
for the Marquesan language.
- Autonomous
status and all of the legislation accompanying it have led to responsibility
being transferred to New Caledonia for the
bulk of the powers which the State
exercises in metropolitan France in the field of education, particularly the
organization of teaching,
the allocation of resources and the supervision of
teaching establishments, as well as examinations.
- The
organization of the Ministry of Education and Technical Education in French
Polynesia is largely based on that of metropolitan
France. It is, however,
specifically geared to French Polynesia, and takes account of local
geographical, economic, social and cultural
conditions. The syllabuses followed
and time-table are practically the same as those of metropolitan France.
- The
State covers some of the expenditure incurred by French Polynesia as a result of
its responsibilities, by allocating to it the
financial and human resources
needed to secure the success and development of Polynesia’s educational
system, the subject of
Convention No. 214-99 of 19 July 1999 on education
in French Polynesia. The French Republic guarantees that diplomas are valid
France.
- Pursuant
to the provisions of Organic Law No. 2004-192 of 27 February 2004, French
Polynesia is also responsible implementing measures
relating to basic,
continuing and vocational education in its territory. Here again, the State
guarantees the validity of the national
diplomas by approving the education
provided at secondary level.
4.1.3 Wallis and Futuna
- As
regards enhancing the status of the overseas regional languages, the Convention
of 16 October 2006 according primary teaching responsibilities
to the
Catholic Mission provides that the teaching provided in the nursery and primary
schools may include courses or activities
delivered or organized in the
Wallisian or Futunian language. The same provision existed in the earlier
Convention of 1995. In nursery
schools, children whose parents request this are
initially taught in the local language. Only gradually is there a transition to
teaching in French.
- In
primary schools, in accordance with national syllabuses, the local language is
offered as part of modern language learning.
- During
their training, all teachers are instructed in teaching the local languages and
culture.
- Since
1998, the use of local languages has been the subject of a continuing experiment
at primary level. Once that experiment is concluded,
an assessment will be made.
At secondary level, four teachers give one hour of lessons per class in the
vernaculars.
- The
branch of the Pacific Teacher Training College (IUFM) in Wallis and
Futuna that trains local teachers offers a teaching module in the vernaculars
during the three-year training period.
- In
Wallis and Futuna, the Catholic Mission is responsible for primary education,
whereas the State is responsible for secondary education.
- The
institutional structure of Wallis and Futuna is based on the co-existence of a
State administration, a local assembly, three kingdoms
organized on the basis of
a hierarchy of traditional chiefs and, in addition, the marked influence which
the Diocese exercises at
all levels of social life. Law No. 61-814 of 29
July 1961 involves a very specific modus operandi. The Catholic Mission
is in fact responsible for primary education under a five-yearly agreement.
Educational objectives are exactly
the same as those in the State school system
in metropolitan France. Supervision lies with the State.
- Primary
school numbers in Wallis and Futuna have fallen consistently over the past ten
years (about 100 fewer pupils every year).
In 2007, 2,428 pupils attended school
at the start of the new school year, compared with 3,337 in 1997. That decline
is partly offset
by an increase in early school attendance (by two-year olds).
The teaching staff, which is not highly qualified, is recruited and
trained
locally. Teachers are employed by the Catholic teaching directorate, but paid by
the State.
- The
introduction of a vocational training certificate for specialist assistance,
adapted education and the teaching of children with
a disability at local level
requires certain adjustments. In point of fact, the status of primary school
teachers does not allow
them to be integrated into the managerial structure of
State education. Specific training has been developed with the higher national
training and research institute for the education of young people with a
disability and special teaching, and the deputy director
of education. It has
been in effect since the beginning of the 2007 school year and involves training
six teachers who will be responsible
for administering the new structures.
- A
proposal currently being drawn up relates to the training, by a specialist
teacher, of young people to support individuals and families,
organize
educational activities within the framework of specialist structures, provide
specific information, assistance and support
for “life plans” for
transport, recreation and learning.
- French,
used almost exclusively in schools, is currently the teaching language. The
results are poor. Measures are being taken at
two levels.
- In
class, at key stage 1 (between the ages of two and six), the focus has been on
the early development of pupils’ ability to
learn by listening, and to
speak up in a society where it is customary for children to be silent.
Educational outreach activities
followed by support measures in class have made
it possible to achieve very promising elements of success on which more work
will
need to be done.
- At
key stage 2 (between the ages of six and eight), where teaching aids are more or
less non-existent, ill-assorted and inconsistent,
the focus has been on
clarifying learning methods. As, under its governing statute, the Territory does
not have authority over equipment,
progress has been more modest.
- At
key stage 3 (between the ages of eight and eleven), priority has been given to
extracting and understanding the information implicit
in a text and to reading
books – an area of widespread failure on entry to secondary school –
and producing written material.
- Reading
as cultural policy (families do not have books) has been promoted on the basis
of selective measures throughout the Territory
(including the “De
livres en îles” (Island Books) project and reading
parties).
- As
a result of an ambitious training programme, carried out with the local branch
of the university institute for teacher training,
the teaching of English
(necessary in this part of the Pacific which situated in an English-speaking
environment) is becoming more
widespread. Very specific teaching programmes have
been devised. There will be an assessment, based on the European reference
system;
it will encompass the whole of the Territory and be founded on a
protocol that is currently being drawn up. The level A1 certificate
at the end
of CM2 (11 years of age [UK Year 6]) will thus be
introduced.
4.1.4 Mayotte
- As
regards enhancing the status of the regional languages of overseas France, the
Agreement on the future of Mayotte of 27 January
2000 provides for a special
convention between the collectivity and France on cultural development,
promoting the Mahoran identity
and the development of the French-speaking world.
- Article
23 of the Law of 11 July 2001 on Mayotte introduces into the general code of
territorial collectivities an article L. 3533-4
which reiterates the
responsibilities of the council for culture, education and the cultural and
educational environment in the cultural
and educational field accorded to the
overseas regions and départements.
- Moreover,
articles L. 3551-24 and L. 3551-25 lay down specific provisions in relation to
language. For example, the collectivity may
enter into agreements with public
companies in the audiovisual sector to promote the making of television and
radio broadcasts designed
to develop languages and culture. In those same
circumstances, the collectivity may put forward a proposal to boost the learning
of French and further develop the teaching of Mahoran languages and culture. The
methods of implementing that proposal are the subject
of a convention entered
into between the departmental collectivity and the State.
- The
very special situation of the collectivity in which two local languages –
Shimaoré and Kibushi – exist and
are spoken by the majority of the
population against a background of widespread illiteracy and failure to master
French, led the
General Council to set up the Institute for learning French
(IAF) in 1997. The aim of the IAF is to engage in linguistic
research into those two languages and to devise methods for learning French as a
second language, taking
into account the particular traits of the Mahoran
identity, by developing the appropriate teaching aids and training teachers in
those methods, as Mahoran teachers are generally better versed in the local
languages than in French, and by updating documentation.
4.2 The
overseas departments and regions
- The
three French American départements (Guadeloupe, French Guiana and
Martinique) which used to constitute the education authority of the Caribbean
and French Guiana were
transformed by decree of 26 December 1996 into three
separate education authorities. They are organized in the same way as in
metropolitan
France. As part of the new statute of the Northern
Islands, j[20]
the proposal is to establish a national education service in
Saint-Barthélemy and Saint-Martin. As far as Réunion is
concerned,
the education authority is organized in the same way as in metropolitan France.
4.2.1 French Guiana
- As
regards strategies relating to cultural and educational heritage, the Basic Law
for overseas France of 13 December 2000 contains
measures to support the
regional languages and cultures of the overseas départements and
territories. French Guiana is a special case because of the presence of ethnic
Amerindian minorities, whose languages had yet
to be included in the educational
system. The Ministry of Culture has launched a multi-annual action plan
(20002003) called “Linguistic practices in French Guiana”,
with the aim of extending knowledge of the Amerindian languages, codifying them
and developing teaching aids.
- As
far as enhancing the status of the languages of overseas France is concerned,
the Law of 2 August 1984 concerning the responsibilities
of the regions of
Guadeloupe, French Guiana, Martinique and Réunion stipulates that the
regional council is to determine which
educational and cultural activities that
complement a knowledge of regional languages and cultures can be organized in
those educational
establishments for which the region bears responsibility
(arts. L. 4433-25, L. 4433-26 and L. 4433-27 of the general code of the
territorial collectivities).
- Article
34 of the Basic Law for overseas France of 13 December 2000 stipulates that the
regional languages in use in the overseas
départements form part
of the Nation’s linguistic heritage. As a result, they benefit from a
strengthening of the policies promoting them
so as to facilitate their use.
Furthermore, the basic law states that the Law of 11 January 1951, called the
Deixonne Law, on the
teaching of local languages and dialects applies to the
languages that are used in the overseas départements.
- Law
No. 2005-380 of 23 April 2005 laying down a framework and programme for the
future of schools confirmed the status of the teaching
of regional languages
within the whole of the education system. Under article 20 of the law, that
teaching must be developed in the
context of the conventions between the State
and the territorial collectivities. Those conventions must afford the
territorial collectivities
concerned the opportunity to develop measures
designed to support the spread of the teaching of regional languages and
cultures,
and the teaching methods have been extended to include Tahitian, the
Melanesian languages and Creole, pursuant to article 34 of the
Basic Law for
overseas France of 13 December 2000. The conclusion of those conventions must
also reinforce the partnership that has
already been set in place with the
collectivities within the academic councils for regional languages established
in the four French
overseas education authorities of French Guiana, Guadeloupe,
Martinique and Réunion, pursuant to the Decree of 31 July 2001
creating
the academic councils for the regional languages.
- As
regards teaching and teacher training, in the overseas
départements and territories, the Creole and Amerindian languages
have so far been taught experimentally in some establishments, rather than more
generally. However, the gradual application of the Deixonne Law to the Creole
languages used in the overseas départements should make it
possible improve the way in which this learning is structured and to extend it
to all levels of education. The implementation
of those new measures is now
covered by the integrated priorities within the academic plans of the overseas
départements. The decree of 31 July 2001 set in place academic
councils for the regional languages whose role is to guarantee the development
of and follow-up to the policies on regional language learning.
- Even
now, at secondary level, there is the option of learning the Creole languages,
and an optional examination has been included
in the Baccalauréat since
the 2004 school year. As of the 2007 school year, the list of modern languages
in the examination
will include one or two for which candidates may opt, as part
of the compulsory tests, in the general and technological series. Like
Creole,
Tahitian and the Melanesian languages may be the subject of optional or
compulsory tests in the Baccalauréat.
- Furthermore,
the opportunity afforded, since 2006, to all candidates in the competitions for
teaching posts, to ask to take an optional
regional language test is one of the
measures capable of consolidating knowledge of these regional languages in
school. In addition,
in relation to teacher training, a secondary school
teacher’s diploma (CAPES) in Creole was established in 2002.
- The
University of Antilles-Guiana offers a master’s degree in regional
language and culture and, since, 1995, there has also
been a degree course in
Creole at the faculty of arts in Martinique. The Guyanese branch of the
university teacher training institute
of Antilles-Guiana holds beginner’s
courses in the Amerindian languages for all second year students.
- The
French Overseas Ministry has sought to continue and further develop the work
already done, particularly to promote the Amerindian
languages of French Guiana,
in an effort to set in place specific educational measures for pupils and
teachers alike. Hence its commitment
to continue supporting the research
programmes in the languages of French Guiana.
- French
Guiana is subject to significant demographic and migratory pressures. Education
is a real issue in a society in which 44% of
the population is less than 20
years old. In the largest of the French départements, there are
thousands of children aged between three and 16 who do not attend school:
Amerindians, Bushinengues, the children of migrants
and so on. On the other
hand, several hundred children are on the waiting list to attend school
throughout the territory because
of the lack of infrastructure.
- The
problems include the fact that, in some parts of the country, there is
inadequate or, indeed, no transport to get children to
school. The arrangements
for accommodating children who live more than an hour away from school are also
inadequate.
- The
suicide rate among young people excluded from the education system is between 30
and 50 times higher than in metropolitan France.
- The
State’s commitment to educating all children has been demonstrated in the
form of the monitoring centre on non-attendance
at school whose purpose is to
encourage the integration of the children of French Guiana into the education
system.
- The
education department constantly monitors the school populations in French
Guiana’s river communities and in remote areas.
Academic action programmes
have been set in place (distance-learning programmes).
- Between
1998 and 2002, 60 schoolchildren from Amapa (Brazil) took part in an exchange
with French Guiana, enabling 120 children to
visit Amapa. Situated in Amazonia,
in the far north of Brazil, Amapa is in some ways similar to French Guiana, from
which it is separated
by the Oyapock river, over which a bridge is currently
being built. There is increasing co-operation between Brazil and the
département of French Guiana in the fields of health (effectively
combating infant mortality), education (teaching of French and Portuguese),
security (combating drug trafficking and the trafficking in human beings).
- Special
structures are also in place to support:
- In
2005, at primary and secondary level, there was a school population of 63,838
(59,627 in the State sector and 4,211 in the private
sector) in 184 (174
State-run and 13 private) establishments.
- In
January 2006, according to studies by the monitoring centre on non-attendance at
school, 3,383 children were not attending school
in French Guiana – a
reduction largely achieved as a result of French Guiana’s commitment to
tackling this issue.
- The
measures taken by the education department on the occasion of the general
assembly setting up the monitoring centre on non-attendance
at school of 13
January 2005 are proving to be very effective. it has been possible to reduce
the number of between 5,000 and 8,000
children not attending school estimated in
2003 and 2004 . The efforts to bring all children of compulsory school age into
the school
system are producing results.
- Getting
families to enrol their children at school has involved mobilizing the academic
centre for educating new arrivals and traveller
children and the department for
school life, by:
- Those
efforts have resulted in an increase in the number of children aged between 12
and 16 who have been enrolled at school, namely
606 in December 2005, compared
with 317 in December 2004 and 303 in December 2003.
- We
should, however, highlight a particular feature of French Guiana in relation to
population censuses. This particular feature is
the result of substantial levels
of migration, with sections of the population coming and going in a way that
makes assessment difficult
(alternating, “circular” migration, with
people entering and then leaving French Guiana).
- The
census must be continued and focus further on children who do not attend school
and young migrants of between 16 and 18 years
of age; vocational colleges could
be the answer for them.
4.2.2 Martinique
- Martinique’s
regional education authority covers a population of 381,427 inhabitants spread
over 34 municipalities (1999 census).
In 2005-2006, there were 348 State and
private educational establishments in Martinique (267 at primary level, 254
State-run establishments
and 11 private establishments under contract and two
private establishments not under contract; and 81 at secondary level, 65 of
them
State-run establishments, 14 private establishments under contract and two
private establishments not under contract).
- 99,009
pupils are educated in the State-run establishments at primary and secondary
level and the private establishments both under
and not under contract (49,173
primary school children, of whom 46,050 are in State-run schools and 3,123 in
private schools, and
49,836 students in secondary schools, 45,428 in
State-run schools and 4,408 in private schools). The regional education
authority
also has 1,998 trainees and 707 students in agricultural
colleges.
4.2.3 Réunion
- There
are 224,172 students in primary and secondary schools in 657 educational
establishments (536 schools, 77 secondary schools and
44 lycées).
- For
the 2006 academic year, pass rates in the general Baccalauréat for the
regional education authority rose, during the period
1995 to 2006, by 57.7% to
82.4% (in 2006, the pass rate was 80.43% in Martinique, 75.6% in Guadeloupe, 72%
in French Guiana and 78.6%
in French Polynesia). During the same period, in
metropolitan France, it rose from 74.8% to 86.7%. In 2006, the pass rate in the
technological Baccalauréat was higher in Réunion than in
metropolitan France (78.9% compared with 77.4%).
- In
2006, the pass rate for the brevet [equivalent to GCSEs in the UK] in
Réunion was 72% (75% in metropolitan France and 69.6% in the overseas
départements generally – 72.8% in French Guiana, 65.1% in
Martinique and 64.8% in Guadeloupe). In French Polynesia, the pass rate for the
brevet was 71.5% in 2005.
III. THE
PROTECTION OF THE CHILD
The Children’s Ombudsman
- Article
13 of Law No. 2002-93 of 22 January 2002 on access to original birth
records of adopted persons and wards of the State extended
the powers of the
Children’s Ombudsman to cover Mayotte, French Polynesia, New Caledonia and
Wallis and Futuna.
- By
confirming the extension of those powers, Organic Law No 2004-192 of 27 February
2004 conferring autonomous status on French Polynesia
attaches special
importance to protecting the rights of the child. That law provides that
measures of concern to the Children’s
Ombudsman apply ipso
jure.
- Since
the year 2000, an annual report has been drawn up which generally contains a
chapter devoted to one overseas collectivity which
the Ombudsman has visited
during the course of the year (Réunion in 2001, French Guiana in 2002,
French Polynesia in 2003,
Guadeloupe in 2004 and New Caledonia in
2005).
- Discussions
took place between the Minister for Overseas France and the Ombudsman in March
2001, January 2003 and December 2005.
- The
Children’s Ombudsman currently has regional agents in French Guiana,
Martinique, Guadeloupe, French Polynesia, New Caledonia
and Réunion.
- The
overseas départements and collectivities account for between 1%
and 2% of individual referrals.
The Public Interest Group
Children at risk (Le Groupement d’intérêt public –
GIP– Enfance en danger)
- The
119 number can be called from the overseas départements and
regions but some departmental General Councils in overseas France have set in
place an emergency telephone number: that is the
case in Réunion and the
départements of the French West Indies (a local review was set
under way in 2006 to consider how that telephone service could be improved for
the départements departments of the French West Indies and
Guiana).
Law No. 2007-293 of 5 March 2007 for the reform of
child protection
- Article
40 of that law authorizes the Government to adopt by order, in the conditions
for which Article 38 of the Constitution provides, the measures necessary to
adjust its provisions to Mayotte, French Polynesia, Wallis and Futuna and New
Caledonia, within
18 months of its publication. In point of fact, bearing
in mind the particularly sensitive nature of this issue, which requires close
co-operation with the local authorities, it seemed more sensible to base the
process of adjustment on a consolidated text. The French
overseas ministry will
be carrying out that task in the
coming months.
A. Children at risk
1. Combating exclusion
- The
French Overseas Ministry is a stakeholder in the Standing Committee for
Combating Exclusion, which is chaired by the Director-General
for Social Action
(DGAS). It also sits on the board of the National Agency for Social
Cohesion and Equality of Opportunity, which was set up by the law of
31 March
2006 on equality of opportunity.
- Under
the territorial support contract between the State and the departmental General
Council of Réunion concerning the departmental
programme for social
cohesion ((2005-2007), the State undertook to finance, by 2007, the creation of
120 places in accommodation
and social reintegration centres (centres
d’hébergement et de réinsertion sociale – CHRS) in
Réunion.
- In
2005, 119 places had been created. In 2006, the DGAS funded the creation
of 35 places. In order to fulfil its contract, in 2007, the State disbursed the
resources needed to fund 60 places.
- Moreover,
at national level, the Prime Minister’s Office has endorsed an
accommodation improvement programme 2006-2009, under
the auspices of the
Interministerial Committee on Combating Exclusions [meeting] on 12 May 2006.
That programme takes account of
the shortfall in resources established in the
overseas départements and promises to create 300 additional
places, as of 2007, that is to say 100 places a year.
- The
allocation of the new places in accommodation and social reintegration centres
by the Directorate-General for Social Action makes
provision as follows for the
overseas départements: 10 places in French Guiana, 15 places in
Guadeloupe and 15 in Martinique.
- The
figure of 100 has certainly thus been achieved, but it includes the 60 places in
Réunion reflecting an earlier State commitment.
The new measures do not
therefore meet the requests made by the Directorates for Health and Social
Development of Guadeloupe (30
places) and Martinique (30 places).
2. Monitoring publications designed for young people
- Pursuant
to Law No. 49-956 of 16 July 1949 on publications intended for young
people, which applies to all of the overseas collectivities,
all publications,
whether or not periodicals, which appear by nature, presentation or subject, to
be principally intended for children
and young people, must be subject to
regular monitoring and checks.
3. Care in French Polynesia
- Article
43 of Organic Law No. 2004-192 of 27 February 2004 conferring autonomous
status on French Polynesia stipulates that the municipalities
of French
Polynesia are responsible for social welfare matters, in the conditions laid
down by the “local laws” (lois du pays) and [subject to] the
regulations adopted by the government of the territory. Consequently, youth
welfare services, which are funded
by the General Councils of the
départements in metropolitan France, have a local counterpart but
one that is financed from French Polynesia’s own budget.
- The
Government of French Polynesia includes a Ministry of Social Solidarity, Housing
and the Family which is responsible for youth
welfare. French Polynesia has set
up a specialist unit within that ministry and created a monitoring service for
children at risk
to monitor children who are physically or morally at
risk.
3.1 The local structures
- A
number of initiatives may be highlighted.
- The
“Te Aho Nui” association, which was set up, on 15 November 1993, at
the initiative of volunteers from the “Pipirima”
association and the
social affairs department runs a hostel that takes in and cares for children at
risk. This emergency hostel for
children – girls and boys aged between
three and 12, who must be in good mental health, and not suffer from a mobility
or sensory
disability requiring a high level of care – operates as a
boarding school round the clock and throughout the year.
- Children
are placed in it either on the basis of an order by the State Prosecutor or the
Children’s Judge, or on the basis of
an administrative contract if the
placement has been arranged with the social affairs department.
- Between
the time that the Te Aho Nui centre was opened, on 1 March 1994, and 31 December
2005, it had taken in 322 children. The hostel
is regularly obliged to refuse to
admit children because of a lack of places. In 2004, for example, it refused
admission on 18 occasions.
- During
2005, of the 30 children placed in the hostel, two were administrative
placements, while the other 38 were placed under court
orders.
- It
should be noted that returning a child to its family is always a priority and,
in March 2005, nine children were placed in a family
and six transferred to a
different institution.
- The
lack of hostel accommodation poses a real problem in responding to the need to
place children at risk. Only 53 places are in fact
available in the Te Aho Nui
hostel and children’s home, although 114 requests for placement were
notified to the child protection
unit of the social affairs department in
2005.
- Where
children under 12 from the same family have to be referred to other care
facilities, the SOS Children’s Village Polynesia
is the sole alternative.
For abandoned children or orphans, foster families and the SOS Children’s
Village in Papara (on the
west coast of Tahiti) are very effective structures
providing family-type support.
- The
SOS Children’s Village in Papara is the only facility capable of
accommodating and bringing together siblings. Sadly, all
of its places are now
full.
- The
facts that the hostels are concentrated on Tahiti and the geographical dispersal
of the islands over an area as large as Europe
makes it difficult to place
children or monitor them, particularly in the case of children resident outside
Tahiti and Moorea, or
Tahiti’s co-called urban zone (Punaauia/Mahina).
- In
Polynesia, the problems relating to children taken into care are complex because
of:
3.2 Reporting
children at risk
- The
arrangements for reporting a child at risk and that child’s treatment by
the courts are largely similar to the procedure
in metropolitan France. Since
the State has legislative authority in all matters pertaining to the status of
individuals, articles
375 et seq of the civil code, which deal with
assistance in children’s upbringing (assistance éducative),
apply throughout the territory.
- As
far as civil procedure is concerned, French Polynesia by and large adopts the
provisions that apply in metropolitan France, save
for those concerning the
issue of copies of documents in a care dossier. It has its own code of civil
procedure.
- As
is the usual practice in metropolitan France, automatic referral to the
Children’s Judge is a procedure that has been applied
decreasingly in
recent years, with most reports being transmitted to the State
Prosecutor’s office for an assessment of whether
it is appropriate for the
case to be referred to the Children’s Judge by means of an application for
a care order.
- As
in metropolitan France, it can happen that the reports lack detail or have been
drawn up without the different services responsible
for monitoring the situation
of minors having worked properly in partnership.
- The
arrangements for the legal processing of reports of children at risk are also
comparable to the procedure in metropolitan France:
after a family hearing, the
Children’s Judge may order investigative measures (social service
inquiries or medical, psychological
or psychiatric reports). There is, however,
no service equivalent to the Service d’investigation et
d’orientation éducative [a service that conducts investigations
in order to provide the Children’s judge with the information needed to
back up his
decision].
- More
specifically, in French Polynesia, there are no private-law bodies providing
educational welfare measures in the community:
responsibility for protecting
children at risk resides exclusively with the social affairs department, which
falls under the auspices
of the local government.
- Demonstrating
the very important position that the churches still occupy in French Polynesia,
hostels and centres that take in minors
placed in care are more often than not
run by religious associations; as is the case elsewhere, the number of places
they can offer
is inadequate, and they may sometimes be understaffed.
- From
a legal perspective, the local situation varies greatly, as there is no social
welfare code or family code.
- The
social affairs department is currently studying whether to setting up a branch
responsible for collating and transmitting all
information to the judicial
authorities, in an effort to rationalize the information-gathering process and
encourage better partnership
between all of the services involved in the social,
medical and behavioural problems which families may experience.
- At
the same time, the monitoring service for children at risk and adolescents in
difficulty is working on drawing up a methodological
guide which could be shared
by professionals working in the field of child protection.
B. Child victims of crime
- Law
No. 2004-1 of 2 January 2004 on childcare and child protection has provided
for the extension to New Caledonia, French Polynesia,
Wallis and Futuna and
Mayotte of the provisions concerning both reporting ill-treatment and the
joining of civil actions by associations
working to prevent child abuse.
- Based
on cases that have been reported and resolved, it is possible to identify trends
in crimes solely against minors: these relate
to murders of minors aged less
than 15 years, rape of and sexual attacks on minors, violence against minors,
abandonment and ill-treatment.
- 1,257
crimes falling within those categories were recorded in 2006, that is to say a
fall of 9.83% compared with 2005. The clear-up
rate was 92% compared with 85.6%
in 2005.
- Although
the situation improved in 2006, it remains worse than in metropolitan France.
These crimes actually account for 0.85% of
all serious crimes and major offences
in overseas France, compared with 0.36% of the total in metropolitan
France.
- As
regards the total number of rapes and sexual attacks recorded (on both adults
and minors), 62% of victims were minors, compared
with 59% in metropolitan
France.
- Looking
beyond the raw data set out above, in terms of both minors who commit crimes and
minors who are the victims of crime, it should
be pointed out that, in overseas
France, minors account for more than 35% of the population compared with 25% in
metropolitan France.
Consequently, the situation in regard to minors is better
than in metropolitan France, as regards both minors who commit crimes and
minors
who are the victims of crime.
1. The situation in the overseas
collectivities
1.2 French Polynesia
- Faced
with the problem of child abuse, the territorial authorities in French Polynesia
set up the “Fare Tama Hau”, a public
institution responsible for
co-ordinating and implementing all preventive, medical, social welfare and
educational care measures
designed to protect and assist children and
adolescents.
- The
“Fare Tama Hau” consists of four units:
That institution represents an essential stage in protecting children in French
Polynesia and underscores the acknowledged progress
that has been achieved as a
result of resolute action by the various players in both French Polynesia and
the French State.
- The
activities of “Fare Tama Hau” have been developed in conjunction
with the health and educational social welfare services
to encourage the
units dealing with adolescents and children at risk to bring in many children,
often with their families, for discussions
with doctors, child psychiatrists and
psychologists (in 2006, there were more than 600 consultations in the units
dealing with adolescents
and 800 in the children’s units).
- Documentation
helpful to political leaders and professionals and adults in contact with
children has been drawn up in order to establish
a policy of abuse prevention
(report on children at risk in December 2006 and a guide to children at risk in
April 2007).
- The
freephone number has been extended and now operates throughout the week and
takes several thousand calls a month (10,000 in March
2007), several hundred of
which require action and follow-up.
- The
social services for which French Polynesia is responsible are the authority
responsible for reporting cases. They act in conjunction
with the
Children’s Judge and the services for the judicial protection of young
people (set in place by Decree No. 2005-1536
of 8 December 2005).
- French
Polynesia funds the placing of young offenders in two hostels: the educational
welfare hostel and the Uruai a Tama hostel.
1.2 New Caledonia
1.2.1 Local authority responsibilities
- The
department for the judicial protection of children and young people is a
territorial responsibility, and the territory has become
aware of the gaps that
exist in this area: in 2007, three new facilities were being built in the three
North, South and Islands
Provinces, as well as an emergency hostel in
Nouméa.
- The
North Province has set in place arrangements to protect children at risk in
co-ordination with the judicial protection system,
based on the measures adopted
in metropolitan France (social support, parental support for the family, placing
the child with foster
parents or in a specialist establishment).
- Since
October 1995, at the initiative of structures within New Caledonia, an
association SOS Violence, an association created jointly
in 1992 (by a judge and
Marie-Claude TJIBAOU, a member of New Caledonia’s Economic, Social and
Cultural Council), has also
been established on Wallis and Futuna to help women
combat the sexual abuse to which children are
prey.
1.2.2 Corporal punishment
- According
to the 2005 Annual Report of the Children’s Ombudsman for New Caledonia,
children may, traditionally, be subject to
corporal punishment within the family
and even at school.
- For
several years now, the territory’s Government has been engaged in a
proactive policy to help children and adolescents. The
Government of New
Caledonia in fact includes a minister for health and handicap and a minister for
young people and sport. The President
of the Government is also responsible for
social affairs and social solidarity.
2. The situation in the
overseas départements and regions
- In
2003, the national helpline for children suffering from abuse was extended, at
their request, to Réunion and French Guiana.
- Most
of the calls (between 1,000 and 1,200 a year) that the freephone helpline
(Numéro vert enfance maltraitée) in Réunion takes
concern physical ill-treatment and sexual abuse. The instability of family
relationships encourages sexual
abuse within the family. Many families split and
“re-constitute” themselves, and stepfathers, known as “little
fathers” in Réunion are often among those responsible for the
sexual abuse of children and adolescents (2001 Report
of the Children’s
Ombudsman).
- In
Guadeloupe, in relation to youth welfare, the Abuse Prevention Unit and the
helpline (freephone number) make it possible to gather
information on
“children at risk” around the
clock.
C. Children subject to economic
exploitation
- There
do not appear to be any child forced labour networks in the French Overseas
Departments and Territories.
- Adopted
in 1999 by the International Labour Organization (ILO), ILO Convention
No. 144 was ratified by France on 11 September 2001,
but that did not
render it applicable outside metropolitan France.
- According
to article 35 of the constitution of the International Labour Organization, it
is in fact for the Member State that has
ratified the convention to ensure that
it is effective in its non-metropolitan territories by a declaration to that
effect to the
International Labour Office.
- Under
the tripartite consultative agreement (government/trade organizations, trade
union organizations), it was, nonetheless, announced
during May 2006 that ILO
Convention No. 182 concerning the prohibition and immediate action for the
elimination of the worst forms
of child labour was being extended to the
non-metropolitan French territories.
- Naturally,
extension is subject to the approval of the local authorities where matters
covered by the convention affect areas for
which they have legislative
competence. That applies, for instance, to the health and employment of children
in New Caledonia and
French Polynesia. Consulted by the Ministry for Overseas
France, the Governments of those collectivities indicated that, as far as
they
were concerned, the extension of ILO Convention No. 182 to them could only
be beneficial. A study on the matter is currently
in
progress.
IV. THE WELL-BEING OF CHILDREN
- The
situation of the collectivities in the Pacific should be highlighted here,
since, under their autonomous status, they exercise
powers usually devolved on
the State. For example, pursuant to article 22 of Organic Law No 99-209 of 19
March 1999, New Caledonia
has responsibility for social security and welfare,
public hygiene and health.
- Article
47 provides that, at the request of a provincial assembly, the Congress may
authorize the provincial authorities to adjust
and apply the rules on public
hygiene and health and on social security and welfare.
- In
French Polynesia, in matters of health and education, the child protection unit
is continuing to take effective action, and the
services of the education
ministry are handling the issue of absenteeism and preventing dangerous
behaviour in conjunction with the
relevant departments of the ministry of health
and the national gendarmerie.
- French
Polynesia’s social welfare service employs about 100 social workers
scattered throughout all of the archipelagos (covering
an area the size of
Europe), in proportion to the number of inhabitants and their remoteness. In
that way, the action of the social
services takes account of an economic and
cultural backdrop that has both its strengths and its
weaknesses.
A. Social security and welfare
1. Family allowances
1.1 In the Overseas Départements and Regions
- As
of 1988, the conditions governing the award of family benefits in the overseas
départements have gradually been brought into line with those in
metropolitan France.
1.2 In the overseas collectivities
1.2.1 New Caledonia
- At
this point, it is worth detailing the measures taken by New Caledonia’s
Government in 2005 in relation to child welfare.
The Government in fact
learnt that 20,000 children belonging to the poorest families were excluded from
family allowances because
the payment of those allowances required an adequate
level of employment.
- In
accordance with the principle of social solidarity and in the interests of the
child, that situation has been remedied by introducing,
on the basis of a local
law (that is to say a legislative text adopted by the Assembly of New
Caledonia), family allowances provided
under a special social welfare regime.
The reform is designed to provide benefits to all families with children under
21, in education
or undergoing vocational training or with a disability or
incapable of work, whose resources fall below a certain threshold. That
allowance is funded from the budget of New Caledonia and not from State-assigned
appropriations.
- As
regards the right to health care for disadvantaged families, the medical aid
system meets the costs of care without payment in
advance and offers special
measures to support children with a disability (the “long-term
card”). Maternity allowances
and child benefit during early childhood
support families during pregnancy and until children are 33 months
old.
- Since
2003, New Caledonia’s North Province has enhanced its efforts to protect
mothers and children by creating two mother-and-child
centres based in
Poindimié and Koumac, with two paediatricians, a speech therapist, two
nursery nurses and a child-care worker
for young children, and providing
decentralized short-term services in the 14 socio-medical centres, with home
visits and visits
to tribes.
- There
are activities under way in schools, with health education workers involved at
both primary and secondary level on issues of
preventive health
care.
1.2.2 Mayotte
- Under
Decree No. 2002-423 of 29 March 2002 on family allowances in Mayotte, the
payment of family benefits and the back-to-school
allowance have been subject to
the obligation to attend school.
1.2.3 French Polynesia
- Social
welfare legislation has been a local responsibility since 1984.
- An
annex to Framework Law No. 94-99 of 5 February 1994 for the economic,
social and cultural development of French Polynesia seeks
to “improve the
social welfare and health of the population of the territory by providing social
cover that separates out the
insurance schemes and the social solidarity
scheme”.
- Resolution
No. 94-6/AT of 3 February 1994 laid down the parameters of the general
social cover applicable to the residents of French
Polynesia and extended the
principle of social welfare to the whole of the population, under three local
schemes:
- Those
schemes are supplemented by :
- The
State has undertaken to provide financial support for French Polynesia’s
efforts to extend general social cover to the whole
of the population.
- The
signing of two successive five-year agreements between the Ministry of Health
and Solidarity (Directorate-General for Social Action)
and French Polynesia
constitutes the practical expression of that effort.
- As
of 1 January 2006, the appropriations relating to the territorial solidarity
scheme were transferred to the Overseas Ministry by
the Ministry for Social
Affairs.
- In
2006, the High Commissioner’s office and the Government of French
Polynesia signed a new annual agreement (valid until June
2007) taking into
account the interrelationship between the provisions of the organic law and
national finance laws.
- A
new agreement was signed on 9 March 2007 between the representative of the State
and French Polynesia’s President (Mr Tang
Song) for €16
million. That agreement expires on 31 December 2007.
- In
the interim, French Polynesia will have to provide a statement of activity and a
financial statement for 2006, as well as reports
against quantitative and
qualitative quarterly indicators for the current financial
year.
2. Social security
- Article
19 of Law No. 2007-224 of 21 February 2007 laying down statutory and
institutional provisions in respect of overseas France
stipulates that the
Government is empowered, by order, to update social welfare legislation in
overseas France.
- In
the case of Mayotte, it is proposed to extend, with the necessary adjustments,
Law No. 2004-810 of 13 August 2004 on sickness insurance,
Law
No. 2004-806 of 9 August 2004 on public health policy, Law
No. 2005-102 of 11 February 2005 on equal rights and equality of
opportunity
and the inclusion and citizenship of disabled people and Law
No. 2006-396 of 31 March 2006 on equality of opportunity, [as well as]
provisions on bioethics and the rights of the sick.
- Article
20 of the law of 21 February 2007 has already ratified the following orders in
Mayotte: Order No. 2003-720 of 1 August 2003
on the freedom to choose the
beneficiary of family benefits in the overseas départements; Order
No 2004-688 of 12 July 2004 on adjusting the law on public health and social
security to Mayotte and Order No. 2005-56 of
26 January 2005 on extending
and adapting the law on health and social security in the overseas
départements and Mayotte (also applicable to Wallis and
Futuna).
B. Health
- The
State has responsibility for health care in the overseas
départements, Saint-Pierre-et-Miquelon, Mayotte and Wallis and
Futuna. French Polynesia and New Caledonia, on the other hand, have been given
complete authority in relation to healthcare. However, the State is concerned
with health issues throughout French territory and
continues to support French
Polynesia and New Caledonia by providing substantial financial support and
technical assistance measures,
either directly or on the basis of health
agencies and research institutes.
- In
Organic Law No. 2004-192 of 27 February 2004 conferring autonomous status
on French Polynesia (art. 140) the list of legal acts,
called “local
laws”, of French Polynesia’s Assembly over which the Conseil
d’Etat exercises specific judicial supervision include employment law,
trade union law and social security, including access to employment
for
foreigners, public health law – including in relation to children –
and legislation on the social services and family
law.
1. Hospital investment in overseas France
- In
the overseas départements, Mayotte and Saint-Pierre-et-Miquelon,
public health establishments are lagging because of structural problems. At
national level,
an effort is under way to bring them up to standard in terms of
the provision of care in metropolitan France, but both infrastructure
and
equipment are subject to rapid deterioration because of the climatic
conditions.
- Hospital
investment is no longer put out to contract, but benefits from the support of
the National Hospital Plan 2007, with additional
funding from the collectivities
and the support of the ERDF (European Regional Development Fund). Action by the
Fund, which varies
according to local priorities, relates to the construction or
renovation of infrastructure, as well as the acquisition of high-tech
equipment,
particularly in the field of medical imaging, and specific measures geared to
zones in which access to care is difficult,
such as French Guiana’s
land-locked communities (use of telemedicine).
- The
National Hospital Plan 2012 will finance construction that is under way, such as
the health centre for eastern Réunion,
or new building work, such as the
renovation of the two university hospital centres in Pointe-à-Pitre and
Fort-de-France,
which are due to be brought up to standard in terms of
earthquake-proofing technology, and the construction of a new hospital in
Saint-Pierre et Miquelon, funding for which, amounting to €39 million, was
announced to members of the Assembly in December
2006 by the Minister of Health
and confirmed by the Directorate for hospitals and health-care provision
(Direction de l’hospitalisation et de l’organisation des soins
– DHOS).
- Mayotte
currently has nine maternity units, seven of them in rural locations. Since
2001, more than 50% of births have taken place in Mamoudzou
(54% in 2002). The
percentage is so high because the hospital’s technical and human resources
attract mothers-to-be: for 2003,
the hospital had a budget of €47.8
million, largely financed from State grants.
- The
Mamoudzou maternity unit is by far the main centre for births: more than 3,800
births were recorded there in 2002, that is an
average of 11 births every day.
That rate is clearly higher than in the hospital of Saint-Pierre à La
Réunion, where
there were 3,056 births in 2002, making it the maternity
unit with the highest birth rate in Réunion.
- Although
Mamoudzou stands out, the number of births in the rural maternity units is not
in decline. They accounted for more than one-third
of births in the territory in
2002. However, on average, they account for just one birth per
day.
Number of births in Mayotte’s maternity
units between 1999 and 2002
|
1999
|
2000
|
2001
|
2002
|
Mamoudzou maternity unit
|
3,028
|
3,274
|
3,466
|
3,866
|
Dzaoudzi maternity unit
|
621
|
598
|
592
|
614
|
Rural maternity units
|
2,557
|
2,707
|
2,561
|
2,648
|
Total
|
6,206
|
6,579
|
6,619
|
7,128
|
Source : DASS
- In
Wallis et Futuna, under the amendment to the development agreement
2003-2007, € 6.8 million (€3 million made available by the
Overseas
Ministry and €3.8 million by the Ministry of Health) have been
provided to make it possible to carry out work to bring facilities
up to
standard, to make buildings secure as a matter of urgency and for the purchase
of equipment.
- Ratified
by the Ministry of Health and approved by the local authorities, the investment
programme provides for the restructuring
and partial reconstruction of Sia
hospital in Wallis on the current site, as well as bringing up to standard, as a
matter of priority,
the premises of Kaleveleve hospital in Futuna, at an overall
estimated cost of €22 million, excluding equipment, partially
funded under
the 2007-2011 development agreement to the level of €7 million
(€4 million made available by the Overseas
Ministry and €3
million by the Ministry of Health).
- Wallis
and Futuna’s health agency has a public service remit for hospitals, with
responsibilities extended to cover public health.
It has a staff of 187, the
majority of whom are covered by a collective labour agreement. It performs its
public health responsibilities
based on an organization at three
levels:
- – a
primary level comprising three health centres on Wallis and two on Futuna,
providing general consultations, mother and child
care and health
education;
- – a
secondary level comprising Sia hospital on Wallis and Kaleveleve hospital on
Futuna, providing emergency services, specialist
consultations and acute care,
whether or not this requires admission to hospital;
- – a third
level for patients who cannot be cared for on Wallis and Futuna and are
transferred to Gaston BOURRET hospital centre
in New Caledonia or to
metropolitan France.
- Since
there is no sickness insurance scheme in Wallis and Futuna, care on the islands
and outside them is free and costs are met by
the health agency, whose budget
has been supplemented by State funding from the budget of the Ministry for
Overseas France since
1 January 2006.
- In
New Caledonia, the future Gaston BOURRET hospital centre, which remained
at the planning stage during the 2000-2005 development contract, will
be rebuilt
on a single site in Koutio, as part of the construction of a multi-service
medical facility that will also combine the
new Pasteur Institute, a follow-up
treatment and rehabilitation unit and a cancer treatment unit, expected to open
around 2014.
- The
State’s contribution, under the development contracts concluded between
the State, New Caledonia and the Provinces for the
period 2006-2010, amounts to
€26 million, of which €23.464 million are earmarked for
reconstructing the territorial hospital
centre.
- The
Government of French Polynesia has assumed sole responsibility for
reconstructing the new territorial hospital centre, which is due to open in
2008, but the State
has provided technical assistance by providing two hospital
consultants to ensure that this new structure is brought properly on
stream.
- The
annual agreements provide for the Ministry for Overseas France to consider
requests for financial support from the territory.
2. Pathologies
linked to the specific conditions overseas
- The
main pathologies encountered, apart from those linked to the environment,
include pathologies resulting from the tropical surroundings
and those whose
prevalence is largely behaviour-related, and particularly
nutrition-related.
- From
an epidemiological perspective, the region of the French West Indies-Guiana, and
French Guiana more particularly, is one of the regions worst affected by
AIDS. It accounts for about 5% of people affected in France, despite accounting
for less than 2% of the national population. Infection is probable for newborn
babies.
2.1 Specific illnesses
2.1.1 Drepanocytosis
- This
genetic illness affects one birth in 300 in the French West Indies, compared to
one in 3,500 in metropolitan France. It is a
rare, serious, painful, potentially
debilitating and fatal disease. Neonatal screening routinely takes place in the
four overseas
départements. There are two [clinical] reference
centres for combating drepanocytosis in Guadeloupe and
Martinique.
2.1.2 Beriberi
- In
Mayotte, 32 cases of children aged between one and four months
suffering from beriberi were reported between 4 April and 13 July 2004. The
majority came from the municipality of Mamoudzou (53.1%). Twenty of the children
died. The emergency introduction of campaigns to
distribute vitamin B1 in early
June brought the epidemic under control. The majority of the mothers of the
children concerned were
not of French nationality (85% were Comoran).
Nutritional analysis revealed that the mothers of the children suffering from
beriberi
had a less varied diet than the control group of mothers, both during
pregnancy and in the postpartum period.
2.2 Vector-borne
diseases: malaria, dengue fever and chikungunya.
2.2.1 Malaria
- The
only cases of malaria in Réunion are imported cases. However, the
disease is endemic in Mayotte where there has been an increase in the number of
cases over time,
rising from 1,841 cases in 2002 to 404 cases in 2005.
- Malaria
continues to be endemic in Mayotte, where it is both indigenous and
imported. The widespread use of rapid diagnostic tests, facilitating early and
effective treatment,
has resulted in a fall in the death rate and restricted
complications. Currently, Mayotte carries out 24,000 tests annually,
resulting
in the diagnosis of just 500 cases a year (539 in 2005 and 743 in
2004). This endemic disease, which was widespread in Mayotte until
2002, is now
rife only in the north of the Grande-Terre, which records 70% of reported
cases.
- In
Mayotte, the main and specific function of the health promotion task force for
school children and students is to secure their
well-being, help them succeed
and support them in the development of their personality as individuals and a
community [:] “general
guidelines for a health policy for the benefit of
school children and
students”.k[20]
- Two
services work to complement each other within the framework of their individual
responsibilities:
– medical service: “responsibilities of the doctors of the Ministry
of
Education”;l[20]
– nursing service: “responsibilities of the nursing staff of the
Ministry of
Education”.m[20]
- The
medical service is made up of a doctor responsible for all of the island’s
schools and educational establishments.
- In
French Guiana, the number of confirmed cases of malaria is in the region
of 5,000 a year. The geography of French Guiana and population movements
make it
very difficult to implement programmes to control the disease.
2.2.2 Dengue fever
- The
French American départements regularly experience more or less
severe epidemics of dengue fever, but, since 2005, there has been an unusual
rise in the number
of cases.
- Between
June 2005 and March 2006, Martinique suffered an epidemic that affected
some 14,500 people and resulted in 200 being hospitalized and four
deaths.
- Between
July 2005 and May 2006, an epidemic developed in Guadeloupe, affecting
some 8,350 people.
- As
early as October 2006 in Martinique and November 2006 in Guadeloupe, an
early warning of a possible epidemic was issued. The situation returned to
normal in March 2007.
- In
December 2005, French Guiana experienced an epidemic that affected more
than 16,000 people, resulted in hospitalization in severe cases and led to
four deaths.
- The
particular features of the demographic situation in French Guiana, compared with
French territory overall, means that vaccination
services have regularly to be
adjusted.
- French
Guiana’s Directorate for health and social development has carried out
studies that have brought to light significant
differences in rates of child
vaccination, particularly in the most remote sectors. The lack of transport
facilities (by air or river)
makes it particularly difficult to supply vaccines,
since it is essential that the cold chain be maintained.
- In
the field of public health, French Guiana is co-operating with Brazil and, more
particularly, the federal State of Amapa with regard
to emergency services and
services to control endemic diseases such as malaria, dengue fever, yellow fever
and the waterborne diseases
present in the zone. Brazil and France have, for
example, boosted healthcare systems – paying particular attention to
populations
along the borders – in the following fields: epidemiological
monitoring, environmental health surveillance and medical assistance.
- In
the French West Indies, the improvements made to the epidemiological monitoring
system have been incorporated into a programme
for the monitoring, early warning
and management of epidemics (Psage-dengue) officially adopted by all of
the parties on 13 July 2006.
- The
French collectivities in the Indian Ocean and Oceania also face epidemics of
dengue fever.
2.2.3 Chikungunya
- Chikungunya,
which was rife in the Indian Ocean, affected Réunion from the
spring of 2005 and Mayotte from January 2006. When summer returned to the
southern hemisphere, Réunion experienced
an unprecedented epidemic
outbreak, with 20,000 people a week being infected in February 2006.
- As
early as December 2005, an interministerial taskforce made recommendations on
the improvements to be made to the existing arrangements
concerning surveillance
and anti-vectoral efforts, and an interministerial plan to combat the epidemic
was set in place, among other
things by increasing to 2,870 the personnel
assigned to anti-vectoral activities in Réunion.
- The
epidemic affected 266,000 people in Réunion, with 246 reported
severe cases and 254 deaths, three-quarters of which involved
people more
than 70 years old.
- On
Mayotte, 7,290 cases were reported. However, that figure does not
reflect the true scale of the epidemic, as many patients did not use the
medical
services. No deaths were recorded.
- The
very low weekly incidence of the disease recorded since March 2007 has made it
possible to move into the inter-epidemic phase
on the two islands. On the advice
of the French Agency for the safety of blood products, the French blood
collection establishment
decided to resume blood donations in Réunion
from next June. Surveillance, combating and protecting against mosquitoes are
a
matter of continuing vigilance.
- The
vector-borne disease control service of Mayotte’s directorate of health
and social affairs, whose main role is to combat
malaria, had to take action in
2006 against the chikungunya virus. Rife on Réunion and in the Indian
Ocean, it struck Mayotte
in January 2006.
- In
the context of the interministerial plan set in place because of the scale of
the epidemic, €6.27 million were committed
to Mayotte –
€3.3 million for mosquito control, €63,000 for communication
purposes and staff costs and €2.864
million for the purchase of
insect repellent and mosquito nets.
- At
7 July 2006, 599 persons, including 80 officials from the Directorate of health
and social affairs, were engaged in anti-vectoral
activities.
2.3 High-incidence pathologies: metabolic disorders
- The
national action programmes to prevent and treat diabetes, cardio-vascular
diseases and renal insufficiency are designed to make
it easier to combat these
chronic pathologies, prevent them and reduce their incidence and complications.
Even now, regional programmes
to prevent these illnesses, which constitute
public health problems, are being implemented in Guadeloupe, Martinique and
Réunion.
- As
regards the “child obesity epidemic” in Réunion,
measures to combat increasing levels of obesity in children and adults are being
implemented with medical and educational support.
There are, in fact, more than
50,000 obese children on the island.
- The
aim of those measures is to increase educational activity as close to the
population as possible in order to co-ordinate national
action on nutrition in
the département.
- A
multi-disciplinary facility, comprising a co-ordinating paediatrician, a
dietician, an expert in social economy and home economics,
an administrative
co-ordinator and a psychologist, is tasked with meeting with children both in
their family context and at school.
- In
addition, the facility makes it possible to provide advice on diet and nutrition
as close as possible to the population and to
create associations that act as an
intermediary with the local districts. It also arranges a holiday camp for
diabetic children on
the island.
- The
aim is, therefore, clearly, to check the increase in obesity in young people by
applying a number of basic principles: eating
more fruit and vegetables,
cutting back daily energy intake, reducing alcohol consumption and increasing
physical activity.
- In
point of fact, children who are overweight have an increased death risk in
adulthood of between 50% and 80%, not to mention the
short-term effects in terms
of orthopaedic disorders, increased arterial pressures or, indeed, abnormal
blood lipid values.
- Finally,
attention should be drawn to the investment made by the public authorities in
raising the awareness of the population by
broadcasting advertising spots and
publishing a guide to nutrition.
C. Children with
a disability
- The
lack of facilities suitable for minors is the main obstacle in dealing with
disability.
- The
proposed order extending and adapting to Mayotte, Saint-Pierre-et-Miquelon, New
Caledonia, French Polynesia and Wallis and Futuna
various measures concerning
equality of opportunity for people with disabilities and the implementation of a
social action and medico-social
policy is designed to extend and adapt the
measures necessary to take better account in those collectivities of individuals
with
a disability and of their needs.
- In
the case of Mayotte, those provisions establish the legislative framework for
the social and socio-medical arrangements (organizational
plan, arrangements
governing the licensing and financing of social and socio-medical establishments
and services), merging the commissions
responsible for awarding the allowance
for adults with a disability and the allowance for children with a disability,
the creation
of a single information and advice point and the funding of aid for
specialist staff training by the National fund supporting independence
for
people with a disability and the elderly (Caisse nationale de
solidarité pour l’autonomie).
- The
proposal does not, however, cover all of the measures for people with a
disability for which Law No. 2005-12 of 11 February 2005
provides,
including the measures relating to the education of children with a disability.
The policy implemented for the benefit
of these individuals by New Caledonia and
French Polynesia, which are responsible for social welfare and, to some extent,
for education,
[is] further developed by the provisions of the 2005 law. It
will, therefore, be for the State rapidly to supplement those arrangements.
The
same applies on Mayotte where the lack of structures is hampering improvements
in assistance for people with a disability.
- The
proposal contains new provisions, particularly for Saint-Pierre-et-Miquelon, and
is now in the process of being authorized, amended
and updated.
- Included
in the Government’s programme of work for 2007, the legislation is
currently the subject of ministerial review.
- In
addition, the abovementioned law on equal rights and equality of opportunity and
the inclusion and citizenship of disabled persons
provides for the establishment
of a departmental structure called the “Departmental centre for disabled
persons ” (Maison Départementale des Personnes
Handicapées) tasked with providing support, information and aids to
establish the life plan of such persons.
- In
Wallis and Futuna, however, there are still barriers of an institutional,
structural and cultural nature to the implementation of those measures.
- As
far as the institutional barriers are concerned, since the territory is not
organized as a municipality or département, there is no
departmental General Council or municipal structures. That being so, in the
current circumstances, the creation of the
appropriate structures, other than
those offered by the education system and by ensuring that public spaces are
accessible –
essential elements in the first steps to integration –
is not guaranteed.
- Structurally,
the system of care is organized on the basis of health care centres.
Practitioners are exclusively employees of the
health care agency and this has
the effect of limiting the numbers of healthcare workers, particularly in the
paramedical field.
In addition, there is no real social welfare network.
- Finally,
from a cultural perspective, disability is still considered something “to
be ashamed of”, and the parents of
children with a disability find it hard
to allow their children to leave the home. But perceptions have begun to change,
particularly
thanks to those establishments that provide specialist structures.
The setting up of a facility like the departmental centre for
children with a
disability would mark important progress for Wallis and Futuna.
- Measures
have, therefore, been taken at various levels and include the establishment of a
territorial centre for persons with a disability.
In the light of the specific
features of the territory and to comply with the spirit of the law of February
2005, the requisite operational
adjustments have been set in place, given the
limited number of personnel available in the territory to staff the facility
that would
become the territorial centre for people with a disability.
- Consequently,
creating a place where families could obtain information and find people ready
to work with them on their children’s
life plan, now seems to be a
necessary stage in extending disabled people’s involvement in life in
society and according them
the equal rights and equality of opportunity to which
the text of the law refers. That proposal is currently being drawn up.
- Furthermore,
support structures for disabled people have been further reinforced and
extended: a class for the educational integration
of disabled children has been
created on the island of Futuna. Hitherto, children with a disability were
taught in ordinary classes.
That was not entirely suited to the provision of
adapted education, and so, at the beginning of the 2007 school year, a
specialist
class was opened on the island. School transport and catering
facilities have been specially created for those pupils.
- The
territory had an establishment providing home economics courses at primary and
secondary levels. At the beginning of the 2007
school year, it was transformed
into a specially adapted vocational training centre, a facility making it
possible to support disabled
children when they are no longer of compulsory
school age, as well as pupils who have left school early or suffer from
confirmed
cognitive disorders. The underlying principle is to alternate between
basic learning and teaching the kind of real and practical
know-how that will
facilitate pupils’ social and professional integration in the territory.
This project is backed by an extended
partnership (the French Ministry of
Education, the Catholic teaching directorate, the Ministry of Agriculture, the
Ministry for Young
People and Sport and [various] associations).
- Given
the low level of socialization of disabled people in the territory, it seemed
necessary to create a meeting point that would
allow some children who had never
been to school to take the first steps to becoming socialized, to allow the
level at which they
might be integrated into schools to be assessed and to
prepare them to respect the rules that would enable them to be educated in
the
future (creation of a socialization and communication centre).
- In
addition, this would be a place where families and young people with a
disability could come, so that they were no longer isolated,
and it could act as
a facility for providing advice, listening and discussion.
- The
project is under way. The communication measures undertaken, in partnership, by
the deputy director of education, the Catholic
teaching directorate and the
traditional chiefs has made it possible to educate eight young people who had
never been to school (some
of them 14 years old).
- For
the deaf and hard-of-hearing, training was offered in April 2007 to teachers,
family members and educators working with people
suffering from hearing loss.
Training in sign language is going to make it possible to establish a core of
individuals able to facilitate
communication with and the education of
individuals with that kind of disability.
- Preventive
and remedial measures based on specialist assistance have been entirely
restructured to make them more effective. An individual
road map makes it
possible to monitor the progress of every child with special needs and to make
the necessary adjustments. Special
continuing training for staff has been
provided since 2006.
- Not
until fairly recently has it been felt necessary to take account of disabled
persons in the territory. However, as progress is
made in educating some young
people with a disability, the social perspective seems to be changing quite
rapidly, and local and customary
institutions seem also to want to contribute to
expanding structures, in order to offer and improve opportunities for a life
plan
for disabled persons.
- In
New Caledonia, pursuant to article 181 of Organic Law No. 99-209 of
19 March 1999 on New Caledonia, the State pays to the provinces annually, apart
from the development contracts, a general operating grant corresponding to the
sums disbursed by way of free medical assistance for
the elderly, assisted
children, disabled persons, State primary education and the operation of
secondary schools.
- A
care policy has been implemented in the North Province via the Maurice Leenhardt
association. Social and educational integration
assistants operate in 15 of the
North Province’s 17 municipalities in relation to some 70 children
(that is a third of the
Province’s disabled children) aged between 0 and
21. The assistants’ main task is to enable these children, who lack
independence, to access all of the places children visit (educational
establishments, holiday camps and so on) and to provide families
with assistance
in the home.
- Since
April 2004, specialist foster families have been selected to take in children
with disabilities placed with them by the courts
or by administrative
order.
- In
2003, for the European Year of People with Disabilities, the South Province of
New Caledonia chose to adopt the theme of the right
of disabled to children to
benefit from specialist care, as well as appropriate education and training to
encourage their independence
and facilitate their active participation in the
life of the community. In the context of teaching projects, school children were
invited to carry out projects on that subject. There was a major event on the
Place des Cocotiers with associations working with the disabled.
Following that event, disabled children enjoyed a cruise on a sailing ship
lasting several
days together with children from the provincial sailing school.
- There
are apparently more than 5,000 disabled adults and 1,300 disabled children in
French Polynesia. “Te Niu O Te Huma”
is the union of associations of
disabled persons, created in January 1993.
- The
role of “Te Niu” is to promote the development of associations
working to support the disabled by setting in place
a structure providing
support and action, advice, review and analysis, proposals, studies, information
and making representations
to institutional and guardianship bodies.
- Its
activities include:
- – assisting
integration into working life in conjunction with the Ministry of
Employment;
- – securing
the accessibility of public spaces;
- – taking
action to help disabled children;
- – securing
agreement between the association and the driving schools;
- – calling
for recognition as an association in the general interest with a humanitarian
objective;
- – participation
in the Telethon.
- “Fare
Moe Tini”, literally, the “house of a dream fulfilled”, is the
only approved centre in the whole of
French Polynesia and, as such, recognized
as a specialist medical educational establishment (Permanence Educative,
Médicale Spécialisée – PEMS). It takes in
children of all ages, whatever their disability.
- In
Mayotte, pupils with a disability are taught either in ordinary classes
or in an “integrated class”.
- The
integrated classes replace “special classes”, and there are four
types covering children with a mental disability,
who have a hearing impairment
or a visual impairment or whose mobility is impaired.
- Those
measures were taken to avoid the kind of segregation that children with a
disability could suffer, and to promote their integration.
And indeed,
experience has shown that integrating disabled pupils within the school
environment has benefits for the whole of the
school community.
- Réunion
is one of the French départements least well equipped to care for
disabled children and adults. To give an illustration, provision exists
equivalent to 8.44% of young people under 20 in metropolitan
France, but only 5.17% in Réunion. Since 1990, the number of places in
institutions
and the provision of outpatient care have constantly increased, but
barely keep up with population growth. That problem is reflected
in the huge
waiting lists of institutions for disabled children.
- Réunion’s
Regional Directorate for health and social affairs has drawn up a summary report
(November 2004) on identifying
and caring for persons with a disability.
Activities of the Departmental Special Education
Commission
(Commission Départementale d’Education
Spéciale – CDES)
1 January 2003 *
|
Number
|
|
Total of disabled children identified
|
5,524
|
19.9
|
Recipients of the special education allowance (SEA)
|
2,298
|
8.2
|
Placed in institutions
|
1,466
|
5.3
|
* The Departmental Special Education Commissions are responsible for children
and adolescents from birth to 20 years of age. Their
job is to identify the
disability and determine a disability rate, to award the special education
allowance (SEA) and disability
card and steer children towards institutions or
services that provide special education.
- The
number of recipients of the SEA increases every year. In 2003, 2,298 were in
receipt of the SEA, that is 34 more than in 2002
and 763 more than in 1990.
- In
recent years, institutional care for persons with a disability has expanded,
including both care in an institution or outpatient
care. Four hundred
additional places were created between 1990 and 2003. In 1990, 1,003
children benefited from care, 937 in an institution
and 65 as outpatients. In
2003, 1,146 children were cared for in an institution and 318 as outpatients. It
is important to point
out that in Réunion there are no special
institutions for children with behavioural disorders.
- The
Ministry of Education has created special classes, within ordinary schools, for
children with a disability. The integrated classes
are able to take in 1,428
children at primary level at 1 January 2003. At that date, 963 places had
been taken up.
- Young
people suffering from a disability in secondary establishments are catered for
in integrated teaching units. In 2003, 144 young
people were able to benefit
from that facility. In addition, some young people suffering from moderate
mental disability are able
to be catered for in sections providing adapted
general and vocational teaching. Those sections which exist in the secondary
schools
are designed for all young people with difficulties (not necessarily
those with a disability). In 2003, 2,412 are available in Réunion.
- In
2001, as in 1995, more than half of the children cared for in an institution had
a mental disability. The visually impaired accounted
for 7%, 11.4% had problems
of mobility, 6% had a mobility-related disability and 12% had multiple
disabilities. It should be noted
that few children with disorders of speech or
language acquisition or suffering from a respiratory, metabolic or nutritional
disorder
receive institutional care (less than 1% of the total in 1995 and
2001).
- In
1995, 24% of those children were not in education: 65% of those under six; 17%
of those between six and 17 and 32% of those aged
18 and above. In 2001, 32% of
children and young people with a disability were not attending educational
establishments.
- Of
that group, 65% were nonetheless taught basic concepts of communication, hygiene
and basic safety. Twenty-one per cent had learnt
to perform simple gestures. En
2001, 67% of children with a disability were in full-time education, that is to
say 40% in nursery
education, 14% in CP or CE1 (six and seven year-olds), 9% in
CE2, CM1 and CM2 (eight to ten year-olds) and 4% in sections providing
adapted
general and vocational teaching.
- To
summarize, in 2003 :
- – 2,298
children were in receipt of the special education allowance;
- – 10,636
adults were in receipt of the allowance for adults with a disability;
- – 1,146
were being cared for by an institution and 318 were receiving outpatient
care;
- – 1,428
children were being taught in integrated classes;
- – 144
children were able to be educated in integrated teaching units;
- – 523
children were waiting to be allocated a place.
- In
French Guiana, the Departmental Special Education Commission, which, in
conjunction with the Ministry of Education, examines applications for allowances
and provides guidance for disabled children, and the Technical Occupational
Counselling and Redeployment Commission which is responsible
for adults, in
conjunction with the Directorate for Work, Employment and Vocational Training
are attached to it [sic].
- In
French Guiana, in 2007, in order to implement the law of February 2005, 11
counsellors (référents), under the authority of the
inspector for the adaptation and education of pupils with a disability, will
closely monitor all such
pupils from nursery school to university. Seventy-four
teaching units will enable disabled pupils to receive a successful education.
For the first time in French Guiana, a unit for pupils with a disability is
going to be set up in a vocational training lycée. New
establishments are being set up in 2007. These are educational assistance
services working with teams in the field. Major work
remains to be done in
respect of remote communities. This year, two educational psychologists are
being added to the teams in the
field: one on Apatou, the other on
Saint-Georges. The 11 teams in the sections providing adapted general and
vocational teaching
which cater for children at secondary school level with
severe learning difficulties are being strengthened. Nine of them will now
be
headed by a director who is trained and holds the requisite diploma. The team in
Paul JEAN-LOUIS secondary school in Saint-Laurent
will be opening a class for 14
year-olds, thereby setting in place arrangements for pre-vocational training.
This year, the teams
will be paying particular attention to the success achieved
by pupils and to the numbers returning to ordinary classes. In addition,
two
sections providing adapted general and vocational teaching have opted to plan
for the introduction of a sports unit.
V.
CHILDREN AND THEIR FAMILY ENVIRONMENT
A. Children deprived of their original family
environment
1. Adoption in French Polynesia
- The
tradition of “child-giving” within the community, known as
“fa’a’mu” (translated literally
as the one who is
“fed”) is commonplace. This is a “form of adoption in which
the child retains its links with its biological parents. Two-thirds of the
population remain very attached
to this cultural model which is based on a
concept of the ‘extended family’ in which the child belongs to the
group and
not to a restricted nucleus” (report of the Children’s
Ombudsman in 2003). This system of traditional adoption enables the
biological parents to
entrust their child’s upbringing to a foster family
without losing contact with that child.
- There
are a number of reasons why the biological parents may offer their child for
adoption. In addition to the traditional reasons,
such as an alternative to
family planning or family co-operation (a sterile or older couple asking parents
to compensate for their
lack of children or for the loss of their grown-up
children), there are now economic, professional or, indeed, marriage-related
reasons
(for example, a single mother wishing to marry but whose future husband
does not want to keep her child). For several decades now,
families in
metropolitan France have been adopting children on the basis of de facto
adjustment of this traditional procedure.
- Philosophically
and procedurally, this practice of “child-giving” is incompatible
with French
legislation.n[2]
- Organic
Law No. 2004-192 of 27 February 2004 conferring autonomous status on French
Polynesia accords the State authority in respect
of civil law. De facto, the
provisions of the civil code on adoption apply in French Polynesia. However, one
of those provisions
has long proved inapplicable. According to article 348-5,
consent to the adoption of a child under two is valid only if that child
is
handed over to either the children’s social welfare service or a body
authorized for adoption. However, French Polynesia
did not have a body
authorized to arrange adoption, and the authority of the territorial
children’s social welfare service
was recognized only belatedly (in 1983
by a decision of the government council, confirmed in 1997 by recommendation of
the Conseil d’Etat). Since the requirement that the child be handed
over could not be met, the consent to adoption was not valid under the law.
- In
order to prevent a situation in which it is impossible to adopt children under
two, the judicial and administrative authorities
have agreed on a practice
whereby a delegation of parental authority is declared and accorded to the
future adoptive parents until
the child reaches the age of two.
- The
biological parents’ renunciation of the exercise of their parental
authority has thus become the first stage in the adoption
procedure in French
Polynesia.
- While
the delegation of parental authority appears in the civil code, it is not a
prerequisite for adoption. It appears in the chapter
on parental authority and
not the chapter on adoptive filiation.
- The
delegation of parental authority does not, therefore, constitute consent to
adoption within the meaning of the law and, as a result,
does not produce the
effects attaching to that consent. For example, when the future adoptive parents
take the child into their home,
this does not constitute a placement within the
meaning of article 352 of the civil code (placement with a view to adoption).
- Decision
No. 82 SCG of 27 January 1983 on adoption in French Polynesia accorded
authority in matters of adoption to the social welfare
department, particularly
where children under two are involved.
- As
stressed in the report published by the Children’s Ombudsman in 2003, in
recent years that procedure seems to have been used
in significant numbers of
cases. Adoption by means of fa’a’mu affects about 2% of the
children of French Polynesia annually.
1.1 The advantages
- The
central feature of fa’a’mu adoption is
“child-giving”. In the Polynesian way of thinking, that concept of
giving is certainly not the same as abandonment.
In metropolitan France, cases
in which parents abandon or clearly have no interest in their child result in
the child being handed
over to the social services. But that practice is not
usual in French Polynesia. The giving of the child is, in fact, usually prompted
in the common interest of two families. Fa’a’mu adoption
provides the child with two families: its biological parents and the family
that has chosen or agreed to bring it up. The
child is not abandoned: the
biological parents entrust it to a foster family.
- Many
Polynesian families choose the adoptive family themselves. The two families may
be brought into contact by a third party, a family
member or a friend. Often,
the child is given directly to the chosen family. There are contacts between the
two families.
1.2. The disadvantages
- In
the absence of specific legislation governing adoption in French Polynesia,
parental authority is usually delegated until the child
is two, during which
period the child has generally been removed from the territory by the adoptive
family from metropolitan France.
In accordance with tradition, contacts between
the families are, generally, maintained.
- When
the child is two years-old, the application to adopt is lodged with the
president of the court of first instance (tribunal de grande instance) at
the place of residence of the adoptive family and, on conclusion of the
appropriate procedure, the adoption is confirmed. However,
when the adoption
order has been issued, the adoptive family may have a change of heart. In
point of fact, confusion arises in relations
between the Polynesian and
metropolitan French communities between maintaining legal contacts and
maintaining the kind of human relationship
that enables the child to be in touch
with its origins.
- Those
circumstances have resulted in pressures on mothers who are potential
“donors”, and some abuses have been identified
in cases of adoption
by families from metropolitan France.
- The
aim, therefore, is to establish a means of monitoring the legality of adoption
and ensuring that there is no abuse in the adoption
procedure in French
Polynesia, so as to guarantee that the children concerned are monitored, so that
they grow up in the best possible
conditions, that the fact of being uprooted
does not disadvantage them and that they are able to maintain their links with
their
country of origin, their biological family and their culture.
- Since
abortion was introduced into French Polynesia in 2001, the number of
fa’a’mu adoptions has decreased (contraception leading to a
fall in the birth rate), however, the practice still exists.
- According
to an opinion handed down by the Conseil d’Etat on 4 February 1997,
“responsibilities for children’s social welfare may be accorded
to services pursuing the same objective in French Polynesia”. A new
procedure, consistent with the requirements of the Civil Code, seems to be
becoming increasingly widespread. French
Polynesia’s social services or
social welfare services want, in fact, to be automatically involved in the
adoption process,
making it possible to verify the basis of the consent given by
the biological parents and the motives of the adoptive parents.
- That
interpretation of the law has made it possible to set in place a system of
wardship under the ordinary law for children under
two years of age who are
handed over to the social welfare service. The latter has thus extended its
sphere of responsibility to
include measures to help children and young people
by means of targeted measures in relation to the protection of children and
young
people, the delegation of parental authority and adoption procedures. On
that basis, the social welfare service has the authority
to approve an adoptive
family and draw up the adoption file, as well as assess and carry out the
psychological monitoring of a family
wishing to adopt.
- If
the family in Polynesia does not know of any future adopter whom it could
suggest to the service, a family council, made up of
three officials from the
social services and two suitably qualified individuals proposes three families
to it: a Polynesian family,
a family of residents and a family from
metropolitan France (both of the latter having obtained official approval to
adopt). That
procedure allows the choice of adoptive family by the original
family to be respected.
- The
family that has been selected is notified before the child is born and contacts
are immediately set in place. When the adoption
seems to have reached the stage
of being well prepared, the future adoptive family may be designated as the
foster family and become
the child’s guardians during the two month
cooling-off period for which the law provides, on condition that the child does
not leave the country during that time. If, however, the situation is not clear
cut, the child is given to a different foster family
or to the territorial
nursery (part of which has been transformed into a baby nursery). Biological
parents and adoptive family are
therefore gradually brought together as the
adoption takes shape. Throughout that time, the birth mother can express her
distress
and sense of loss but also her desire to keep the child.
- Moreover
the abovementioned order of 21 December 2000 extends the status of wards of the
State to children born in French Polynesia.
That order creates rights for
children taken in for more than two months by the social welfare service.
The status of ward of the
State prohibits the delegation of parental authority.
Two decrees are required for the provisions of the order to apply: one relates
to the composition and operation of the family council and the other to the
approval commission. They should be adopted in 2007.
- Pursuant
to article L. 224-4 of the code of social action and families, children whose
line of filiation is not established may be
given the status of ward of the
State, but that does not usually apply to children adopted according to the
fa’a’mu procedure. Since the system of wards of the State was
designed primarily to apply to children who had previously been abandoned,
it
could clash with the practice in French Polynesia where it is the biological
parents themselves who plan adoption.
- That
system is not, therefore, likely to eliminate the practice of delegating
parental authority completely, but it is to be hoped
that parents will see in it
a guarantee of their child’s safety.
- The
procedures governing the adoption of children in French Polynesia by families
from metropolitan France have improved significantly
– even without the
decree setting up the family council required for the adoption of wards of the
State – as a result
of the substantial degree of co-ordination between the
family courts and social welfare service. There has also been a significant
decrease in the number of adoptions.
2. Adoption in New Caledonia
- The
customary law culturally and socially linked to the Melanesian community of the
Pacific traditionally distinguishes between two
categories of
“child-giving” which do not require the relinquishment of [parental]
rights as a pre-requisite and are
voluntary:
- – adoption
based on friendship (or “fosterage”) is very widespread and simply
involves handing over the child without
any effect on the latter’s
personal status;
- – customary
adoption (or “Popa èpo”) where the child becomes completely
integrated into the foster family.
It involves a change in the child’s
name and situation and, in those respects, resembles adoption under French law.
More often
than not, the adopted children return to the maternal family and
there is no break with the family of origin. That form of adoption
is entirely
governed by customary law and is registered in the register for citizens with
customary civil status.
- There
appear to be a number of reasons for employing that practice: settling a
“debt”, reconciliation between families,
thanks for a service
rendered, lack of progeny or as a reminder of former alliances. The choice of
boy or girl will clearly depend
on the reason for the adoption (where a family
dies out, for example, a boy is “given”).
- Customary
adoption is designed to maintain a social and cultural balance, as well as a
balance in terms of land tenure. It reflects
an approach based on exchange
between families, within the family or between near or distant neighbours. An
individual exists only
in relation to others, his family and his land.
- During
the early months of a child’s life, the biological mother has
privileged contact with the child. Once it has been weaned,
a system of
upbringing by the other women of the tribe is established. Tradition accords
only a secondary role to the biological
father. It is the maternal uncle who is
the true father and must take responsibility for raising the child.
- The
adoptive mother is subject to collective representations and the rules of social
life, which are highly codified in Melanesian
society. The adoptive father acts
as a spokesman in dealings between the customary bodies and the family.
Acceptance of the adoptive
parents often appears more like submission to a rule
of society than heartfelt agreement.
- In
the Melanesian community, the procedure of “child-giving” is
strictly regulated: parents wishing to adopt make a proposal
to the biological
parents, who then request approval of their elders. The families may then
“follow custom”, that is
to say proceed to exchange gifts and enter
into discussions. When a child grows up, he or she may return to the original
family (the
“customary gift of returning”), and is then
“re-adopted” by its own family.
- Since
the adoption process is not confidential, it is hard to imagine that a
Melanesian child with customary status who has been “given
away”
retains no links with its biological family.
- While
it is difficult to confirm that these children are more frequently the victims
of sexual abuse than other children, as the Children’s
Ombudsman states in
her 2005
report o[2],
the fact remains that the major changes that have now taken place in Melanesian
society, particularly with the large-scale movements
of families to
Nouméa, affect the way in which children are transferred (questions arise
as to the way in which the foster
families operate within the family and the
true status of the child). It may happen that adopted children, and girls more
particularly,
are the victims of sexual abuse, but this is no longer a taboo
issue and heightened awareness among the women of the South Sea Islands
is
enabling positive developments to be achieved. They have the support of social
bodies and various other associations.
B.
Immigrant children
- Perceived
as rich and attractive regions, the overseas départements and
collectivities have to deal with high levels of immigration, largely as a result
of the attractive living standards and levels
of social protection, which are
higher than in neighbouring States.
- By
way of illustration, in the Caribbean, per capita gross domestic product (GDP)
in Puerto-Rico, the most developed territory in
the region is just 2/3 that of
Martinique. The gap between Haiti and Guadeloupe or Martinique is greater still.
- Pursuant
to the social welfare and family code, no condition pertaining to nationality,
legality of stay or length of residence is
required in respect of persons
affected by the application of the child protection tasks set out in article L.
221-1.
- It
should be noted that the statistics on illegal immigration are only
approximate.
1. The situation in the French West Indies-French
Guiana region
- With
a population of 422,000, Guadeloupe recorded the following figures for illegal
immigrants in 2005: 27,000 people, 10,000 of
them children.
- Illegal
immigrants account for about 3% of the population in Guadeloupe, and the number
of deportations increased from 370 in 2005
to 468 for the first quarter of 2006
(that is an increase of 26.49%). Most illegal immigrants are from Haiti, the
Dominican Republic
and Dominica.
- As
regards the social welfare of unaccompanied foreign minors who are either legal
or illegal immigrants (at 31 December 2005), in
the majority of cases, those
minors are brought to the département by their parents or a family
member. Usually, they are handed over to a third party, a relative or a
compatriot, who “disappears”
because of various difficulties, so
that the young person is suddenly left alone.
- Guadeloupe’s
child social welfare service takes care of the immigrant population, and this
includes:
- – caring
for minors entrusted to it by their parents or the courts;
- – wards
of the State;
- – minors
taken in provisionally as an emergency, pursuant to article 56 of the social
action and family code, according to which
a minor who has no legal
representative may be taken in as an emergency. In such cases, the social
welfare service tries to track
down the parents and refers the matter to the
State Prosecutor’s Office;
- – caring
for pregnant women and lone mothers, with their children under three, who are in
need of material and psychological
support;
- – caring
for minors declared to be of full age and capacity and adults under 21 who have
problems of social integration.
- It
is worth highlighting some of the problems that Guadeloupe’s social
services encounter:
- – conflicting
institutional approaches linked to the arrangements for protecting children and
controlling migrant flows;
- – the
obstacles to obtaining refugee status for minors;
- – obtaining
legal representation;
- – obtaining
parental authority or the authority of the child’s family members in its
country of origin;
- – access
to the law, to French nationality and to vocational training;
- – the
need for appropriate accommodation in the reception centre;
- – authentification
of the identity documents issued in the country of origin, particularly in
respect of minors from Haiti;
- – establishing
the age of minors;
- – the
lack of a reception centre for asylum-seekers;
- – obtaining
identity papers that will enable these young people to access the diploma
providing confirmation of attendance at
school;
- – the
fact that these young foreigners, who have no status under employment law, do
not have the right to work.
- There
also appears to be a recent phenomenon whereby these lone foreign minors
abscond. The role of social workers, particularly specialist
childcare workers,
seems to be crucial. They seem best placed to identify young people at risk of
absconding. The increase in the
population group is partly linked to the
phenomena of addiction, drug-addiction and the problems of adapted care. Most
young immigrants
who abscond are, like other minors, under the influence of
various drugs. Their emotional, social and economic situation is complex.
They
are in poor physical and psychological health, and most of them are inclined to
wrong-doing.
- At
31 December 2005, there were 38 unaccompanied foreign minors in Guadeloupe, most
of them boys, and the majority from Haiti (14
minors). The following States are
also involved: Dominica, the Dominican Republic and Sint-Maarten (the Dutch part
of the island
of Saint-Martin). Most, namely 23 minors, are placed with foster
families.
- The
collectivity of Saint-Martin remains a focus for illegal immigration for several
reasons, including the permeable nature of its
frontier and its administrative
set-up. Attempts to curtail illegal immigration are encountering new strategies
by the networks,
which may be described as “aggressive and
sophisticated”, and involve even minors, particularly girls.
- Illegal
immigration has critical effects on minors’ development (uprooting and
destruction of the family unit, the development
of an unclear sense of identity
and a poor self-image, cultural conflict and discrimination).
- Of
the 84 foreign minors and young adults taken into the care of the child social
welfare service on Saint-Martin, 68% are the subject
of judicial action and 61%
have been placed with foster families.
- The
main problems are as follows:
- – their
parents are illegal immigrants who do not have the right to stay;
- – their
parents are illegally resident as their visas have expired;
- – they
are minors who have not come to the territory to join their family;
- – it is
impossible to establish their date of entry;
- – it is
impossible to confirm the years of school attendance required on French
territory;
- – they
are adolescents who have arrived in their later teens and cannot prove they have
been present long enough before reaching
their majority;
- – it is
impossible for them to access integration facilities.
- The
authorities on Saint-Martin are hard hit by illegal immigration. The
island’s service-providers have to meet the needs of
providing medical and
social care for foreigners who account for 80% of users on average.
- They
have been reduced to providing social cover that may be described as
“humanitarian” but excludes all preventive or
tutelary
measures.
- Foreigners
who are illegally resident actually benefit from State medical assistance only
if they are habitually (and not occasionally)
resident in France, and, above
all, if they are genuinely destitute. They may obtain exceptional help by way of
child welfare assistance.
- The
fact that few physicians take part in the system of State medical assistance,
because of the time it takes for them to be reimbursed,
and the confidence
established between users and local officials, encourages the increased levels
of attendance at clinics. The population
is increasingly in need of free medical
care, regular monitoring of difficult pregnancies, vaccination and medical
analysis. Few
women who are illegally resident are able to access such services.
- The
implementation of universal medical coverage and State medical aid has
dramatically changed care procedures.
- The
social policy that has been developed on Saint-Martin makes it possible to
support foreign families experiencing serious difficulties,
particular in the
absence of social benefits:
- – support
for parenthood;
- – support
for psychological/behavioural problems;
- – various
forms of financial assistance (school, extracurricular activity, food, clothing,
temporary accommodation).
- In
relation to the care and monitoring, by the service for the protection of
mothers and children, of pregnant foreign women who are
legally or illegally
resident, since 2003, there has been a sharp rise in the number of pregnant
foreign women throughout the territory
of Guadeloupe and particularly on
Saint-Martin.
- The
departmental collectivity takes the place of the State in assisting families who
are in acute difficulty.
- In
Guadeloupe, the scale of the problem and the consequences of delays in providing
care require a detailed review of the situation,
so that the most appropriate
measures can be introduced to support underprivileged and vulnerable groups in
the population.
- As
a result of its social welfare work in the community and its responsibility for
protecting mothers and children, Guadeloupe’s
departmental General Council
is helping to maintaining a reasonable standard of living for population groups
in severe difficulties.
A partnership entered into with neighbouring States
should check the flow of illegal immigrants.
- In
Martinique, only 1% of the population is illegally resident and, in
contrast to Guadeloupe and French Guiana, this year, it has seen a reduction
in
the number of foreigners deported as compared with 2005 (that is to say, a
reduction of 7.19% recorded during the first quarter
of 2006). Most
immigrants come from Saint Lucia – and are well integrated – and
Haiti.
- Far
greater than in Guadeloupe and Martinique, French Guiana’s illegal
residents account for between 20% and 25% of the total
population (that is to
say between 30,000 and 35,000 illegal residents). During the first quarter of
2006, 2,363 people were deported
from French Guiana to neighbouring States: the
majority came from Surinam (1,450), Brazil (1,418) and Haiti (89). There had
already
been nearly 5,942 deportations in 2005. The issue of illegal immigration
poses problems in terms of educating the “river
children”.
2. The situation in the Indian Ocean
- Unlike
the other [overseas] French collectivities, Réunion is not exposed
to major immigrant flows: it is estimated that fewer than 1% of immigrants are
illegally resident. The majority are
from the Comoros, Madagascar and Mauritius.
Given that low figure, which the directorate of the border police has provided,
the risks
associated with migrants are low, and there has been little change for
a number of years.
- Mayotte,
in contrast, is exposed to significant migratory pressures from the islands that
make up the Union of the Comoros, and the island
of Anjouan more particularly.
Illegal residents account for almost 35% of Mayotte’s total population.
Compared with 2005, during
the first quarter of 2006, deportations from Mayotte
increased by 3,704.
- Mayotte
now has a population of about 170,000 habitants, 55,000 of them foreigners.
Over 30 years, it has grown fivefold. The high
birth rate and immigration from
neighbouring islands are the reasons behind this high level of population
growth.
- Whereas,
in 1958, only 1,300 births were registered in Mayotte, there were more than
3,800 in 1992 and 7,660 in 2004. Between 1992
and 2004, the number of births
doubled therefore.
- That
is a continuing trend: 4,280 births were registered during the first half
of 2005, so that the estimate for the whole year is
8,560 – a 12%
increase.
- Nearly
seven out of ten women who give birth are of foreign extraction, the majority
from the Comoros.
- For
the population of Mayotte as a whole, the fertility rate is 4.7 per woman. But
that average rate masks a marked difference based
on the mother’s origin:
for women born on Mayotte, the figure is 3.5 children, increasing to 5 children
for other women. Those
rates are far higher than in metropolitan France, where
the rate is 1.9 (and 2.5 in Réunion).
- In
2002, the average age of a mother giving birth was 26.2, compared with 29.4 in
metropolitan France for the same period. It is the
distribution by age group,
rather than by average age, that indicates the difference in behaviour patterns
between Mayotte and metropolitan
France. For example, 44% of women who gave
birth in Mayotte in 2002 were less than 25 years old, whereas the figure was
just 15%
in metropolitan France.
- That
situation reflects the fact that different attitudes exist in relation to
child-bearing, influenced by different lifestyles,
depending on origin. Women
born on Mayotte are gradually adopting the French model and delaying having
their first child and limiting
the size of their family, but Comoran women want
to have many children, as this continues to be a mark of success within society.
- The
rise in the birth rate is likely to continue on Mayotte in the coming years.
- In
order to benefit from the high-quality healthcare structures that exist on
Mayotte and give their children the chance of some day
acquiring French
nationality, a number of Comoran women come to Mayotte to give birth and then
return home. Currently, Mayotte has
nine maternity units, seven of them in rural
locations. Since 2001, more than 50% of births have taken place in Mamoudzou
(54% in
2002). The percentage is so high because the hospital’s technical
and human resources attract mothers-to-be: for 2003, the
hospital had a budget
of €47.8 million, largely financed from State grants. The Mamoudzou
maternity unit is by far the main
centre for births: more than 3,800 births
were recorded there in 2002, that is an average of 11 births every day. That
rate is clearly
higher than in the hospital of Saint-Pierre à
Réunion, where there were 3,056 births in 2002, making it the maternity
unit with the highest birth rate in Réunion and, indeed, metropolitan
France.
- Law
No. 2006-911 of 24 July 2006 on immigration and integration takes account
of the specific problems of illegal immigration to which
Mayotte is exposed. It
is designed to put an end to the recognition of so-called children of
convenience by limiting cases of “name-giving”
and making it
compulsory for persons with customary civil status to enter into marriage, at
the mairie, in the presence of the registrar and two witnesses.
3. The situation in the Pacific
- The
collectivities in the Pacific face few problems of illegal immigration.
- In
New Caledonia, the only foreign children who are illegally resident come
from Vanuatu. There are not many of them, and they are automatically cared
for
and educated.
VI. CHILDREN IN CONFLICT WITH THE
LAW
- Order
no. 45-174 of 2 February 1945 on youth offenders applies in the overseas
departments (Article 42), in New Caledonia, in French
Polynesia, on Wallis and
Futuna (Articles 44 to 46) and on Mayotte (Articles 47 to 49). It also
applies to Saint-Pierre-et-Miquelon
in so far as it does not fall into one of
the categories for which the collectivity has responsibility pursuant to Article
LO 6414-1
(II) of the general code of the territorial
collectivities.
A. Young offenders
- Looking
beyond the raw data set out above [sic], as regards both minors who commit
crimes and minors who are the victims of crime,
it should be pointed out that,
in overseas France, minors account for more than 35% of the population compared
with 25% in metropolitan
France. Consequently, the situation in regard to minors
is better than in metropolitan France, as regards both minors who commit
crimes
and minors who are the victims of crime.
- Thus,
in 2006, minors subject to legal proceedings accounted for only 0.5% of young
people, compared with 1.3% in metropolitan France.
At the same time, minors who
were the victims of sexual abuse accounted for 0.06% of all minors in overseas
France, compared with
0.09% of all minors in metropolitan
France
1. Analysis of youth offending in the overseas
départements and regions
1.1 The youth courts
1.1.1 In the overseas départements and regions
- Basse-Terre
court of appeal has jurisdiction to hear appeals relating to cases from
Guadeloupe. The courts of first instance for minors are:
- – the
Basse-Terre youth court (attached to the Basse-Terre regional court): it
has a children’s judge. That court has
jurisdiction in relation to
Saint-Martin, Saint-Barthélemy and Les Saintes;
- – the
Pointe-à-Pitre youth court (attached to the Pointe-à-Pitre
regional court): it has a vice-president and
a children’s judge. That
court has jurisdiction in relation to Marie-Galante and La
Désirade.
- The
Fort-de-France court of appeal has jurisdiction to hear appeals in cases from
Martinique and French Guiana. The courts of first instance for
minors are:
- – the
Fort-de-France youth court (attached to the Fort-de-France regional court):
it has two vice-presidents and a children’s judge;
- – the
Cayenne youth court (attached to the Cayenne regional court): it has a
vice-president and a children’s judge.
- The
court of appeal of Saint-Denis de La Réunion has jurisdiction to
hear appeals relating to cases from the island of Réunion and the French
Southern and Antarctic Lands.
At first instance, the courts for minors are
organized as follows:
- – the
youth court of Saint-Denis de La Réunion (attached to the regional
court of Saint-Denis de La Réunion):
it has a vice-president who sits as
a children’s judge and two children’s judges;
- – the
youth court of Saint-Pierre de La Réunion (attached to the regional
court of Saint-Pierre de La Réunion):
it has two vice-presidents who sit
as children’s judges and a children’s
judge.
1.1.2 In the other overseas collectivities
- The
Nouméa court of appeal has jurisdiction to hear appeals relating to cases
from New Caledonia and the islands of Wallis and Futuna. At first
instance, the youth courts are organized as follows:
- – the
Nouméa regional court: it has a vice-president who sits as a
children’s judge and a children’s judge;
- – the
Mata Utu regional court (Wallis and Futuna): it has a judge who also sits as a
children’s judge;
- – in the
Koné and Lifou subdivisions, the subdivisional judge may be required to
act as a children’s judge. In
point of fact, the role of children’s
judge is performed either by the children’s judge from Nouméa
sitting outside
his court, or by the subdivisional judge delegated by
him.
- The
Papeete court of appeal has jurisdiction to hear appeals relating to cases from
French Polynesia. At first instance, the courts are organized as
follows:
- – the
Papeete regional court which has a vice-president who sits as a children’s
judge and a children’s judge;
- – in the
Raiatea (Windward Islands) and Nuku-Hiva (Marquesas Islands) subdivisions, the
children’s judges from Papeete
sit as a youth court.
- The
Mamoudzou higher appeal court has jurisdiction to hear appeals relating to cases
from Mayotte. At first instance, there is just one court, the Mamoudzou
regional court, which has a children’s judge.
- The
higher appeal court of Saint-Pierre-et-Miquelon has jurisdiction to hear
appeals in cases originating on the archipelago. At first instance, the regional
court has jurisdiction.
There is no children’s judge. One of the
court’s vice-presidents sits as children’s
judge.
1.2 The proportion of minors prosecuted
- In
2006, offences by minors accounted for 12.7% of prosecutions in overseas France
in 2006, compared with 18.33% in metropolitan France.
- However,
that figure is to some extent distorted by the major efforts to counter illegal
immigration, which account for more than
20% of all the offences recorded,
compared with 2.3% in metropolitan France. That category of offence, which
results more or less
automatically in arraignment is principally committed by
adult offenders.
- If
offences pertaining to immigration are left out of account, then, in 2006,
offences by minors accounted for 17.14% of prosecutions
in overseas France,
compared with 19.67% in metropolitan France:
Guadeloupe
12.54% Martinique 13.10%
French Guiana 11.07% Réunion
20.96%
Saint-Pierre-et-Miquelon 12.36% Mayotte 17.00%
Wallis
and
Futuna p[20] 30.38% French
Polynesia : 17.40%
New Caledonia : 23.51%
- The
percentage of young offenders as a proportion of all offenders is slightly lower
than in 2005, when it was 17.95%.
1.3 Tutelary
measures
- Measures
for the judicial protection of young people in overseas France are steered by a
regional directorate and structured around
four departmental directorates
(Guadeloupe, Martinique, French Guiana and Réunion), a territorial
directorate responsible
for Mayotte and a directorate in French Polynesia.
- There
are 14 public-sector establishments and services and 14 associated
structures.
- Public
sector distribution is fairly uniform. Both the public establishments and
services and the associations provide all of the
services relating to
accommodation, non-custodial tutelary support and day-care activities. In
Saint-Pierre-et-Miquelon, there is
a youth worker to monitor offenders serving
non-custodial sentences.
- Decree
No. 2005-1536 of 8 December 2005 established a Directorate for the judicial
protection of young people in French Polynesia.
It is staffed by a territorial
director and youth workers under contract.
- In
New Caledonia, there is no service for the judicial protection of young people,
but staff are made available to the
collectivity.
Educational facilities in overseas
France
Collectivity
|
Public-sector facilities
|
Facilities provided by the authorized associative
sector
|
Guadeloupe
|
2 tutelary activity centres (3 non-custodial tutelary units * + 3 tutelary
units providing day-care activities)
|
1 investigation and tutelary guidance service
|
1 hostel providing tutelary activities and immediate placement (1
diversified tutelary residential unit + 1 immediate placement centre)
|
1 social investigation service
|
Martinique
|
1 educational centre (1 non-custodial tutelary unit * + 1 day care tutelary
activity centre + 1 tutelary support unit attached to
the court)
|
1 investigation and tutelary guidance service
|
1 hostel providing tutelary activities and immediate placement (1
diversified tutelary residential unit + 1 immediate placement centre)
|
French Guiana
|
2 tutelary activity centres (3 non-custodial tutelary units * + 1
diversified tutelary residential unit + 1 day care tutelary activity
unit)
|
2 social investigation services
|
2 investigation and educational guidance services
|
1 secure supervisory centre
|
1 tutelary activity hostel
|
Réunion
|
2 tutelary activity centres (2 non-custodial tutelary units * + 2 day care
tutelary activity units)
|
1 secure supervisory centre
|
1 social investigation service
|
1 hostel providing tutelary activities and immediate placement (1
immediate placement centre)
|
1 reparation and community service office
|
1 tutelary activity hostel (1 collective tutelary residential unit + 1
diversified tutelary residential unit)
|
2 investigation and tutelary guidance services
|
Saint-Pierre-et-Miquelon
|
1 tutelary activity centre (1 non-custodial tutelary unit *)
|
-
|
Mayotte
|
1 tutelary activity centre (1 non-custodial tutelary unit * + 1 day care
tutelary activity unit)
|
-
|
French Polynesia
|
1 tutelary activity centre (1 non-custodial tutelary unit *)
|
An agreement has been entered into with an association that provides
accommodation for young offenders |
* : the unit also provides around-the-clock supervision for the
court
- In
2002, in French Guiana, the association SOS Insertion et
Alternatives (an SOS Group), set up in 2002, (with the backing of the
departmental directorate for the judicial protection of young people), is
behind
the Cacao secure educational centre, 75 kilometres south of Cayenne. This
facility, the first of its kind for young offenders,
has constructed its
educational project around the forest and its environment.
- Since
8 January 2004, eight young people, with an average age of 17, have come into
the centre on the basis of a court placement order
pursuant to the order of 2
February 1945. This is the third period of activity for this centre, which takes
in young people from
French Guiana or the French West Indies only. An
alternative to imprisonment or removal from a social environment which led young
people to commit offences, its purpose is to “provide continuing
educational support to create the conditions that allow a
young person to make a
fresh start”. In French Guiana, minors spend five years enjoying a unique
experience and discovering
new ways of life.
- Covering
five acres in the heart of the equatorial forest (on the banks of the La
Comté river), the centre in accessible only
by canoe. A team that speaks
eight languages or dialects (Arawak, Creole, Bushi-nengué, English,
Brazilian, Spanish, Hmong
and French) is representative of French Guiana’s
population. Residents also help with construction sites approved by the Forestry
Commission (Office national des forêts – ONF), the protection
of the environment and the restoration of many sites.
- Similarly,
in French Polynesia, the “TE UI API NO PAPEETE” federation,
created in 1996, is an umbrella body for 22 district clubs and societies. Its
main objective is to reintegrate young offenders through sport and cultural
activities. (Water sports “Tahi, Rua, Toru”,
at Tipaerui swimming
pool, are a high point; the young people compete, in teams, in traditional
fishing (pêche au caillou), canoe-racing, fishing for flying fish
(marara) and a variety of competitions. The young people are also
involved in cultural activities (Heiva Tumu Nui, a Tahitian Carnival in
which
the association is represented by a float), as well as environmental activities
(the Tahiti Propre [keep Tahiti clean] campaign). Some 800 young people,
aged between 12 and 25, take part in these sporting
events.
1.4 Minors as a proportion of detainees
- At
1 January 2007, there were 78 minors in detention in overseas France (53 minors
on remand and 25 convicted minors) out of a prison
population of 4,103, that is
1.9% of the total number of detainees in France.
- That
rate has been more or less the same for four years, varying between 1.6% and
2.2%.
- Where
there is no juvenile wing, minors are automatically kept one to a cell. For
activities, they are brought together with young
adults.
Number of minors imprisoned by
institution
Numbers at 1 February 2007
Institution
|
Number of minors imprisoned
|
Number of young adults taking up places for
minors
|
Number of places for minors
|
Occupancy rate of places for minors
|
Maison d’arrêt Saint-Denis (Réunion)*
|
1
|
0
|
0
|
-
|
Maison d’arrêt Majicavo (Mayotte)*
|
4
|
0
|
6
|
67
|
Centre pénitentiaire Baie Mahault (Guadeloupe)*
|
8
|
0
|
15
|
53
|
Centre pénitentiaire Le Port-Plaine les Galets
(Réunion)
|
19
|
0
|
25
|
76
|
Centre pénitentiaire Remiré Montjoly (French Guiana)
|
17
|
0
|
21
|
81
|
Centre pénitentiaire Ducos* (Martinique)
|
7
|
0
|
0
|
-
|
Centre pénitentiaire Faa’a Nuutania (French
Polynesia)
|
4
|
0
|
2
|
200
|
Centre pénitentiaire Nouméa (New Caledonia)
|
2
|
0
|
2
|
100
|
Whole of overseas France
|
62
|
0
|
71
|
-
|
*: although they do have not have places reserved for detainees who are
minors, these institutions are still authorized to hold minors.
2. The prison regime applicable to minors
- In
the overseas départements and regions and Mayotte, the regime for
metropolitan France applies, the prison regime for the
under-21s q[2]
(as the code has not taken into account the 1974 reform lowering the age of
majority):
- – minors
are kept in isolation at night, except where their personality or medical
opinion preclude this;
- – separation
from adults (in practice, the detainees are held in juvenile wings of the
prisons);
- – a
prison regime in which education, training and sport play an important
role;
- – improved
diet;
- – under-16s
may not be put in punishment cells (as opposed to being confined to their
cells), and over-16s may only be kept
on the punishment regime
for:
- 15
days for first degree offences involving the use of violence (45 days for
adults);
- 8
days for first degree offences without the use of violence (45 days for adults);
- 5
for second degree offences (30 days for adults);
- 3
days for third degree offences (15 days for adults).
- In
French Polynesia, articles DP. 514 to DP. 519 and, in New Caledonia, articles
DNC. 506 to DNC. 519, have the same content as in
metropolitan France (save in
regard to the disciplinary regime).
- The
prison regime for minors has been amended by three decrees of 9 May 2007.
- The
new prison regime for minors combines the judicial protection of young people
with the supervision of imprisoned minors; abolishes
in respect of minors
administrative or judicial measures ordering solitary confinement; extends to
minors the arrangements governing
day-release from detention centres, which is
more favourable to detainees, and adjusts the range of disciplinary measures to
take
account of the fact that the detainee is a minor.
- As
far as disciplinary measures are concerned, for example, minors aged 16 are
confined to their cells for the most serious misconduct.
In addition, a
reparation measure or activity is introduced, and the punishments of deprivation
of activity or items are detached
from the circumstances in which the
misdemeanour was committed. Finally, for minors aged 16 and above, the
reparation measures or
cleaning duties prescribed for adults are brought
together under the broader and more flexible designation of “community
service”.
The punishment cell is used as an exceptional measure and
reserved for offences committed using violence or threats, and the duration
of
the punishment has been reduced from 15 or 8 days for a first degree offence and
to 7 days for first degree offences committed
with the use of violence or
threats. For second and third degree offences, the duration remains the same
(five and three days), but
only offences involving violence or threats may lead
to use of the punishment cell.
- The
decree on the punishment regime will not apply in French Polynesia, New
Caledonia and Wallis and Futuna.
B. Young
drug-addicts
- The
Interministerial Taskforce on Drugs and Drug Addiction is responsible for
coordinating government action in relation to prevention,
dealing with health
and social welfare implications, deterrence, training, communication, research
and international exchanges. A
five-year plan (2004-2008) to combat illegal
drugs, smoking and alcohol is under way, and an interim assessment has just been
drawn
up. There is, in addition, the recent Plan addiction 2007-2011
(dealing with and preventing addiction) for which the Ministry of Health is the
lead department.
- Every
year, the taskforce allocates to the project leaders a budget to fund activities
falling within the three strands of public
policy (prevention, care and
combating trafficking) as part of the local element of its remit. In 2006, the
funds allocated to the
four overseas départements totalled
€620,860, with an additional €92,000 to finance two studies on crack
(the total for the whole of France was
€17,297,811). The taskforce also
allocates resources to the ministries with responsibilities in this field to
enable them to
adopt innovative measures at a central level. A review is
currently under way of whether the taskforce might allocate to the Ministry
for
Overseas France a budget that would not be used centrally but passed over to
overseas collectivities which do not have project
leaders but wish to implement
specific projects.
1. Substance abuse and the children of
Réunion.
- The
aim of the “Tendances Récentes et Nouvelles Drogues”
(Recent trends and new drugs) initiative, which is being piloted by the French
monitoring service for drugs and drug addiction,
is to identify emerging trends
that are drug-related and to help expand knowledge of drug addiction in
order to pinpoint emerging
trends and better understand problematic
developments. The aim of the measure is to develop rapid and appropriate
responses where
it proves necessary to protect users or the general population,
particularly in Réunion.
- The
initiative has been in place since February 2001, and administrative
responsibility for it lies with the regional health monitoring
service.
- One
of the major trends to have been identified as a result of this initiative
concerning actual drug use in 2002 was the very young
age of some users (11
– 13 years old) and a relative increase in the number of girls affected.
1.1 Drug use by the very young and increasing numbers of
girls
1.1.1 Cultural practices
- Several
ways in which users are introduced to the products (alcohol, cannabis, abuse of
prescription drugs) are described, in varying
contexts.
- The
monitoring service records that 15% of secondary school children claim to have
already taken drugs (2% of them regularly). Those
figures increase with age: 2%
of 12-13 year-olds and 25% of young people aged 18 and above. The numbers are
greater among children
taking the technology option (20% compared to 13% of
those studying for the general option). Zamal (cannabis) is the main
product used – usually in conjunction with alcohol.
- All
social groups are affected by this use, from young people with time on their
hands in working class districts, who certainly constitute
the majority, to
students from differing social backgrounds. The concept of a gang is important
in defining this drug use which is
more often a group than a solitary activity.
The composition of the gangs changes – gang members come and go and are
highly
mobile. Most of these young users have the same issues as in metropolitan
France: major personal problems, a family that has broken
up or is
“absent”, rejection of institutions, rebellion against the education
system and a lack of motivation to obtain
the kind of training that will give
them a qualification. The fact that they have problems outside the
“norm” appears
to bring them into contact with individuals who are
more or less marginalized.
1.1.2 Increasing numbers of girls
using drugs
- The
studies show that some girls are polysubstance dependent, from as early as 13 or
15, sometimes using in the street. They appear
generally to be less frequent
users than boys and to have a greater preference for misusing prescription
drugs. Some girls who are
minors display high-risk behaviour: excessive intake
of alcohol from early morning or substantial polyuse. While the number of young
girls who are users may have increased over the past ten years, it appears that
the trend has really taken off, over the past eight
years, among some young
female offenders. It appears that the current trend among these young girls is
towards mixed use, as they
attempt to prove that they can escape adult control.
- According
to youth workers, only a minority of young girls wanting money to buy drugs
resort to prostitution, but some allow themselves
to be sexually abused under
the influence of drugs. We should bear in mind that Réunion is the French
département in which the third greatest number of rapes occur,
after French Guiana and the Territory of Belfort.
1.2 Multiple
drug use
- There
is also a higher incidence of multiple drug use, as users attempt to potentiate
effects, and, in combination with alcohol, the
result is increased violence and
crime.
1.2.1 Alcohol
- The
studies reveal that alcohol is a “primary product” in psychoactive
polyuse and is frequently used to potentiate the
use of some drugs, particularly
where prescription drugs are being misused. Beer is the drink of preference
rather than rum, which
is striking given the island’s historical and
cultural background. Even though the “pile plate” (the local
name for a flask of rum) fits discreetly into a pocket, the effects of
drunkenness are plain to see and carry a
stigma. It should be noted that there
is a very high prevalence of foetal alcohol syndrome in this
département, equivalent to the levels recorded in the
Nord/Pas-de-Calais regions and in Brittany.
- Alongside
alcohol “habituation”, there is absolute alcohol dependency with
associated behaviour similar to that of opiate-users.
The products most
frequently recorded include, in variable proportions: alcohol, cannabis –
usually herbal cannabis but sometimes
cannabis resin – and misused
prescription drugs.
1.2.2 Prescription drugs
- Even
in secondary schools, there is increased experience of the abuse of prescription
drugs, and their use appears to be on the increase.
For example, some surfers
“sniff” prescription drugs, used in place of narcotics, for
recreational purposes. A Madagascan
smuggling network enables addicts to obtain
medicines that have been withdrawn from sale.
- New
products have recently been emerging, including “petit
cœur” (little heart – an unidentified blue pill) and
“rhum racine” (rum root – mint root macerated in rum
and dried in earth which has an hallucinogenic effect).
- The
use of cocaine and ecstasy is apparently increasing, even though they remain
hard to obtain.
1.2.3 Cannabis
- Very
much a part of the local culture, zamal is not really considered to be
illegal by the people of Réunion, as it is deeply rooted in local custom.
2. Drug abuse among children in the French American
départements
- Three
drugs are principally used in French Guiana, Martinique and Guadeloupe: crack,
cannabis (known locally as “kali”)
and alcohol. The increase in
the numbers of young and very young users as a proportion of all users is a
matter of concern; that
is why the focus of government and the associative
sector is to study and combat this development.
- As
far as the French American départements are concerned, the
five-year plan (2004-2008) to combat illegal drugs, smoking and alcohol,
introduced by the Interministerial Taskforce
on Drugs and Drug Addiction, and
currently up and running, places particular emphasis on enhancing care
facilities. In Martinique,
for example, a 20-bed emergency shelter and an
addictology network have been in operation since 2005. In French Guiana, a
20-bed
shelter and social reintegration centre opened in early 2006, and a
therapeutic community is to open its doors during the first half
of 2007,
despite the strong reservations of the residents of Montsinéry. In
Guadeloupe, an addiction network is in place,
as well as a drop-in and risk
reduction support centre for drug users.
- The
structures in French Guiana and Martinique have also taken part, since 2000, in
the survey Tendances Récentes et Nouvelles Drogues under the
auspices of the French monitoring service for drugs and drug addiction. Their
involvement came to an end in 2004, as French
Guiana and Martinique had to bring
an end to their research activities because of budgetary restrictions at
national level.
2.1 French Guiana
- In
French Guiana, the main user groups within which there is a significant
proportion of minors are:
- – among
prostitutes: the vast majority are female and come from outside French Guiana
(from neighbouring countries) and are
to a large extent linked to the traffic in
illegal drugs; this group is characterized by the prostitution of foreign girls
who are
minors and transvestites, often of Brazilian origin. A more recent
development has seen teenage male prostitutes among young crack
users.
- – among
the affluent: far from not being represented among users in French Guiana,
these are disparate and discreet groups
that change as people come and go. The
individuals who make up the groups are of varied origins: Guyanese, citizens of
metropolitan
France and socially integrated foreigners – from all kinds of
working backgrounds. Recreational use predominates among these
groups, with
increasingly varied forms of multiple use, but in the case of crack-cocaine
users, more and more instances of users
sliding into drug abuse and dependency
are being recorded, leaving them completely disorientated.
- – among
schoolchildren and students: secondary schools, lycées and
universities are more or less directly affected by drug use/dealing outside or,
indeed, inside educational establishments. The
most commonly used products by
far are alcohol (beer) and cannabis (herb and resin), ecstasy, in the university
environment, and,
to a lesser extent, products that are inhaled (solvents) in
schools (a practice introduced by young Brazilians). In 2004, there appears
to
be a trend towards abuse becoming more commonplace among many young people for
recreational purposes.
- – young
people living on the streets: this group seems to be constantly growing but is
hard to quantify; largely, but not exclusively,
formed of young people without
legal status, it is made up of young minors who live on petty crime or
prostitution, and sometimes
“odd jobs”. Theirs is the most
precarious of existences, and they live in squats. They mainly consume alcohol,
sometimes
mixed with unleaded petrol, detergents that they sniff, herb cannabis
sometimes mixed with crack (“Blaka”), which a veritable
gateway to
crack use.
- Over
a four-year period, all of that data has simply confirmed the picture of
widespread cannabis use among all social groups, of
all ages, with a marked
trend towards a lowering of the age of first use: there have been some reports
of users as young as between
eight and ten.
- The
prevalence of use in schools and universities (13%) is lower than the national
average, so that it can legitimately be assumed
that the young people of French
Guiana consume less cannabis. However, the number of young people in western
French Guiana who do
not attend school is a matter of great concern, and it has
not been possible to conduct a study in relation to these disadvantaged
young
people.
- The
results of the study in educational establishments show more substantial use by
boys than girls, in relation to both experimental
and regular use.
- The
most significant developments in recent years have been:
- – the
fact that it has become commonplace to see young teenagers using in the streets,
outside educational establishments;
- – reports
of the use of, and also dealing in cannabis, in and around some educational
establishments;
- – the
spread of cannabis use to rural locations: there appears to be increasing use
of cannabis by teenagers outside the urban
environment; in addition, the
realities on the ground mean that the methods of prevention made available to
rural communities are
virtually non-existent.
- Cannabis
use also appears to be on the increase as a result of a rise in the popularity
of the “Rasta” movement among
young people, particularly from
Anglophone countries (Surinam and Guyana), with a culture and lifestyle that
involve the use of that
type of drug, as they identify with Africans. In
addition, there is small group called “Rasta blancs” (white
Rastas) from metropolitan France. All smoke “kali” and are followers
of the “Rastafari” movement,
with the appropriate colours and
hairstyles and “Reggae” music.
- Finally,
carnival, local festivals and musical events are all occasions when young people
increasingly commonly use drugs and drink
alcohol in public.
2.2 Martinique
- As
far as users are concerned, those involved in the field continue to report an
increase in the number of crack users with a widening
of the age range. First
crack use may be taking place a little earlier and the number of women affected
also appears to be increasing.
- Between
1994 and 2004, a survey was carried out in educational establishments every
three years. The last survey was conducted between
December 2003 and May 2004
and based on a representative sample of pupils in Martinique’s secondary
schools and lycées. The sample was randomly selected from 59
secondary school classes (13 and 14 year-olds only) and 89 classes from general
and vocational
training lycées, theoretically involving a total of
3,454 pupils. A total of 2,988 questionnaires were filled in (1,245 from
the secondary schools
and 1,743 from the lycées). The results
cover pupils in respect of whom it was possible to make a statistical analysis
by age group (sufficiently large numbers),
that is to say those aged between 14
and 19, totalling 2,630 pupils.
- Among
this group, experimentation with cannabis during their lifetime lags far behind
experimentation with legal products like tobacco
and, above all, alcohol. But
cannabis is the product banned by law that is most frequently used, very often
in combination with alcohol,
and experimentation with other products (crack,
cocaine, heroin and so on) is extremely rare. Use increases with age, and there
are
more boys than girls who are users. Compared with the first survey carried
out in 1994, there has been an increase in lycée students using
cannabis (rising from 11% in 1994 to 29% in 2003- 2004), while the figure is
largely unchanged in the two most recent
surveys for secondary school
pupils.
- That
data on young people at school has been supplemented since 2000 by the survey on
health and use on the occasion of the Call-up
for Defence Preparation. Set in
place by the French monitoring service for drugs and drug addiction, that survey
takes place on the
day of the Call-up for Defence Preparation. It is based on a
strictly anonymous questionnaire, which young people fill in for themselves,
relating to the use and circumstances of use of psychoactive products, as well
as the health and lifestyle of young people. The aim
is to provide an accurate
picture of a restricted age group in their late teens, which is a crucial period
from the point of view
of experimentation. Since 2001, the survey has been
extended to the overseas départements, where it extends over
several weeks in order to cover sufficient numbers of young people.
- In
2003, experimentation with cannabis affected nearly one in two boys and one in
seven girls, with first use at an average age of
15.5 years. That difference
between the sexes holds good in respect of more recent use: 36% of boys and 9%
of girls state that they
have used the drug at least once during the past
12 months, and 23.5% of boys and 6% of girls confirm having used the drug
in the
last 30 days. Regular use (at least 10 times during the past 30 days) is
rarer. Experimentation with other psychoactive products
is very unusual (less
than 1%), except for products that are inhaled (2% of girls and 3% of boys have
already tried them at least
once), ecstasy (1.3% of boys) and above all
psychotropic medicines (28% of girls and 12% of boys).
3. Drug
use by children in New Caledonia
591. Multi-drug use also exists in New Caledonia. Cannabis use is becoming
more commonplace and more widespread among the very young
(12 years old). The
consumption of “kava” – a root imported from Vanuatu
which is a highly toxic local drink – should also be mentioned.
Annex II
THE FRENCH APPROACH TO THE ISSUE OF NATIONAL MINORITIES
- Two
fundamental constitutional concepts underpin French law on minorities: citizens
have equal rights, implying non-discrimination,
and the nation is united and
indivisible, in terms of both territory and the population.
- Accordingly,
when the Conseil d’Etat was asked to give its opinion when France
was considering signing and ratifying the framework Convention for the
protection of national
minorities, it took the view that the Convention was by
its very purpose contrary to article 2 of the French Constitution of 4 October
1958, which affirms that “France shall be an indivisible [...]
Republic”,a[2]
and the principle that the French nation is made up of all French citizens
“without distinction as to origin, race or religion” (opinion
of 6 July 1995).
- When
reviewing the compatibility of the 1992 European Charter for Regional or
Minority Languages with the French Constitution, the Constitutional Council took
the view that the principles of the indivisibility of the Republic, equality
before the law and
the unity of the French people meant that “collective
rights may not be recognized in respect of any group whatsoever, defined
in
terms of a community of origin, of culture, of language or belief”. In the
decision of 15 June 1999, the Constitutional
Council held to be contrary to
both those fundamental principles and article 2 of the Constitution, according
to which “French shall be the language of the Republic”, both the
preamble to the Charter, which proclaims
an “inalienable
right” to use a minority or regional language not only in
“private life” but also in “public
life”, and some
provisions of Part II (and the provisions of art. 7, paras. 1 and 4, in
particular). It also drew attention to the constitutional value of the principle
of the unity of the French people.
- As
actually interpreted, the French view assumes that the assertion of identity is
the result of a personal choice and not of applicable
criteria that a
priori define any particular group. That view leads to a refusal to consider
the different elements that go to make up the French people
as forming one or
more minorities. France takes the view that applying human rights to all of the
citizens of a State, on the basis
of equality and non-discrimination, will
normally ensure that, whatever their situation, all citizens enjoy the full
protection to
which they are entitled. This is, therefore, a particularly
exacting approach to human rights.
- This
set of principles does not, however, imply a legal framework that denies
France’s cultural diversity. It simply demonstrates
that the fact that all
citizens are equal, irrespective of the basis on which they have built their
identity, is one way of implementing
the principle of non-discrimination
throughout the Republic. That is why France has adopted measures and policies
which, while promoting
the principle of equal treatment between persons without
distinction as to origin, allow all persons, in practice, to exercise their
rights and freedoms without discrimination based on their identity, regardless
of whether they identify themselves with one or more
minorities.
- The
information provided below is designed to illustrate how the principle of
non-discrimination is actually implemented in France
and to provide, in various
spheres, some examples of measures that have a positive impact on individuals
belonging to minorities.
I. Measures to promote
cultural, religious and linguistic diversity
1. Freedom of religion and conscience:
- In
France, religions are, in principle, protected. In point of fact, since the law
of 9 December 1905, the Churches and the State
have been separate in
France, leading the State to guarantee freedom of worship and, consequently, the
right of all to practise a
religion and, with others, form a religious
association (“[t]he Republic shall guarantee freedom of conscience”,
art.
1), but to recognize none (“[t]he Republic shall neither
recognize, pay for nor subsidize any religion”, art. 2). That
system
of separation or secularity draws a clear dividing line between, on the one
hand, matters of individual conscience or personal
choices and on the other,
matters pertaining to the State: the principle of secularism enables persons
belonging to different religions
to live together peacefully, while preserving
the neutrality of the public domain.
- The
French public authorities have long encouraged religious communities to
establish representative institutions, enabling special
consultative bodies to
be set up with the task of putting forward proposals. One example is the
Representative Council of Jewish
Institutions in France, which brings together
more than 60 Jewish associations; another is the oldest Jewish institution in
France,
the Consistoire de Paris (Consistory of Paris), which dates back
to 11 December 1808. Its mandate is to organize the Jewish religions for a
community that
now numbers nearly half a million. Since its creation, the
Consistoire has developed all those services that safeguard the interests
of Jewish life: from establishing places of worship to religious education,
and
from the celebration of marriage to ritual slaughter. Similarly, since 1905, the
Protestant Federation has encompassed most of
France’s protestant churches
and associations. Its mandate is to be the representative of French
Protestantism vis-à-vis
the public authorities and the media, and it also
provides a number of general services in areas such as: television
(Présence Protestante), radio, army and prison chaplaincies, bible
study and ecumenical relations. More recently the Conseil Français du
Culte Musulman (CFCM – French Council of the Muslim Faith),
created on 23 February 2003, has become the body that represents France’s
Muslims.
The CFCM’s role is to deal with issues including the
construction of Mosques, Muslim areas in cemeteries, the organization of
religious
festivals, the appointment of clerics for hospitals, prisons and
secondary schools, and the training of imams.
- The
principle of secularism does not prevent the religious beliefs of all being
catered for in the day-to-day operation of the public
services. It is, for
example, possible to take kosher or halal meals in the canteens and refectories
of schools and military barracks.
Departmental heads may accord officials, who
so request, authorized leave to attend ceremonies celebrated on the occasion of
the
main festivals specific to their faith, subject to the sole proviso that
their absence is not incompatible with the normal running
of their department.
Special provisions have also been enacted on ritual slaughter in abattoirs for
the Jewish and Muslim faiths.
Provision is also made for special areas in
cemeteries for adherents of religions other than Christianity. Those examples
–
and they are not an exhaustive list – demonstrate that the
principle of secularism certainly does not result in a denial of
religion in the
French public domain.
- The
issue of applying the principle of secularism in schools has seen a further
development resulting in the adoption of Law No. 2004-228
of 15 March 2004,
concerning the wearing of signs or garments indicating religious affiliation in
primary schools, secondary schools
and State lycées. Since the law
entered into force in September 2004, at the beginning of the 2004-2005 school
year, the education code has contained
an article L. 141-5-1, which is worded as
follows:
“In primary schools, secondary schools and State
lycées, the wearing of signs or garments by which pupils conspicuously
indicate a religious affiliation shall be prohibited.
Under the rules of procedure, disciplinary procedure must be preceded by
dialogue with the pupil.”
- Those
provisions guarantee the freedom of conscience of every individual in a
democratic and pluralist society by protecting primary
schools, secondary
schools and State lycées from the kinds of pressure that could
result from conspicuously indicating religious affiliation. French society thus
establishes
a principle of neutrality within the State education system, except
in higher education, in relation to both teachers and pupils.
It does not
stigmatize any particular religion, as that would be a source of discrimination,
and does not lay down a list of prohibited
religious signs. The prohibition
under the law is not a systematic prohibition. The circular applying it merely
gives examples of
signs and garments that are banned, such as “the Islamic
veil, however it is designated, the kippa or a cross that is clearly
excessive
in size”. “Discreet religious signs”, such as
“accessories and garments habitually worn by pupils without religious
significance” are, however, permitted.
- By
that law, the legislature was seeking to prioritize dialogue and education. It
takes a largely pragmatic approach and assigns those
working in the field
responsibility for securing observance of the law and penalizing any
infringement of it. For example, it sets
in place a preliminary stage of
dialogue with a pupil in breach of the law, which must be arranged and held by
the head of the establishment
in conjunction with the management team and the
education teams, followed, if need be, by a disciplinary procedure.
- Pursuant
to the provisions of the law, an assessment of its application was made one year
after it entered into force (report submitted
in July 2005 by Hanifa Cherifi, at
the time ombudsman at the Ministry of Education with responsibility for
resolving cases relating
to the issue of the veil from November 1994).
- At
the beginning of the 2004-2005 academic year, 39 pupils, three of them
boys, were permanently excluded from the State schools which
they were
attending. Only one case of exclusion was reported at the beginning of the
2005-2006 academic year. It should be made clear
that the fact of being excluded
from State schools does not prevent the pupils concerned from moving to private
establishments or,
if need be, following correspondence courses from the
Centre national d’enseignement à distance (National
Distance-Learning Centre – CNED).
2. The freedom to
learn minority languages
- The
regional languages of France are part of its national cultural heritage. While
France is the [official] language of the Republic
under the Constitution,
multilingualism is officially encouraged. Article 21 of the Law of 4 August 1994
(Loi Toubon – Toubon Law) on the use of the French language
provides that “the provisions of this Law shall apply without prejudice
to the laws and regulations on the regional languages of France and shall
not
preclude their use”.
- There
are some 75 languages of France, which have been spoken for generations by
French citizens in metropolitan and overseas France,
and which are not,
moreover, an official language in another country. To take only the African
languages, Berber and Algerian Arabic
dialect are languages of France. For its
part, article 34 of the Basic Law for overseas France of 13 December 2000
provides that
the regional languages in use in the overseas
départements are part of the French Nation’s linguistic
heritage. This shows that France’s attachment to national unity goes hand
in hand with respect for its heritage, and the diverse languages of France are
living testimony of that heritage.
- At
the beginning of the 2001-2002 academic year, reform of bilingual teaching in
regional languages was set under way in primary and
secondary schools and
lycées. That teaching is an integral part of the objective of
diversifying the languages taught: the circular of 5 September 2001 includes
regional languages in the language development and diversification plan from
nursery school to higher education; they may be studied
on the same basis as
foreign languages. In addition, as part of the programme for the development of
that teaching, an Academic Council
for Regional Languages, a consultative body
attached to the regional education authority, and responsible for encouraging
expansion
of the teaching of regional languages within the region concerned, was
set up by decree of 31 July 2001. Courses are held either
in a specialist
“regional language” establishment or in “regional
language” sections. For many years, those
courses have adopted more
intensive teaching methods, in the form of bilingual teaching, with the
timetable divided equally, in primary
schools and the “regional
language” sections of secondary schools and lycées (with an
enhanced regulatory framework under the decree of 12 May 2003) or using the
“total immersion” method which is
reserved for the associative
sector (French has compulsorily to be used as a teaching language in State
schools). Course attendance
may be attested to on the diploma (brevet) or
Baccalauréat certificate.
- According
to a 2002 report of the French Ministry of Culture and Communication (Report
to Parliament on the use of French, 2003), in both the State sector and the
private sector under contract, in primary and secondary schools and
lycées, some 250,258 pupils (in all forms of education except that
provided by associations) were taught regional language and culture.
- The
law of 23 April 2005 on the orientation and programming of the future of schools
confirmed the position of regional languages
within the whole of the French
educational system. Pursuant to article 20 thereof, that teaching is to be
further developed by way
of agreements between the State and the territorial
collectivities. Those agreements must afford the territorial collectivities
concerned
the opportunity to develop measures to support the spread of the
teaching of regional languages and cultures.
- France
is more widely attached to the teaching of modern languages. For example, a wide
range of languages is offered in the set and
optional papers, both written and
oral, of the Baccalauréat, including regional languages or
dialects (Basque, Breton, Catalan, Corsican, the Melanesian languages, Langue
d‘oc, Tahitian,
Berber, Chleuh, Kabyle or Tarifit ...). As well as the
teaching of modern languages, education in languages and cultures of origin
may
be organized for foreign pupils attending primary and secondary schools in the
form of optional activities within or outside
the school timetable. That
arrangement is the subject of bilateral agreements signed by eight countries
(Portugal, Spain, Italy,
Morocco, Algeria, Tunisia, Turkey, Serbia-Montenegro).
The purpose of those courses, which were introduced in the mid-1970s, was
to
facilitate the integration of peoples of foreign extraction by recognizing their
original culture and seeking to get them involved
in French culture. Gradual
changes to those courses are currently under review to make them available to
other pupils and include
them in the proposal for generalizing language-teaching
in primary schools.
- The
freedom to teach the culture, history and religion of persons from minority
groups:
- As
regards enhancing the status of the regional languages of overseas France, the
law of 2 August 1984 on the competences of the regions
of Guadeloupe,
French Guiana, Martinique and Réunion provides that the regional council
is to determine the educational and
cultural activities complementing the
knowledge of languages and regional cultures that may be organized in the
educational establishments
for which the region has responsibility.
- Specific
measures have been set in place, such as adapting school syllabuses in line with
the cultural and linguistic circumstances
falling within the remit of the
provinces or recognizing the Kanak languages as teaching languages and languages
of culture (organic
law of 19 March 1999), including commitments in relation to
teaching, scientific and university research and the training of
trainers.
4. The right to preserve a traditional way of
life:
- Special
measures have been taken in relation to travellers to take account of their way
of life and thus help them to integrate.
- A
consultative body, the National Advisory Commission on Travellers was
established by decree of 27 August 1999 to study the problems
encountered by
travellers and make proposals to the public authorities to enable travellers to
become better integrated and to combat
all forms of discrimination directed more
specifically at them. Its annual report summarizes all its activities and
proposals.
- The
legislature intervened to set in place reception facilities in each
département. The law of 5 July 2000 on hosting and accommodating
travellers provides, in that connection, for a departmental plan to support
travellers and requires local collectivities to provide new areas in which they
can park their vehicles. The facilities that must
be provided are laid down by
decree.
- That
law has also helped create conditions more favourable to the schooling of the
children of travellers. The circular of 25 April
2002, which deals specifically
with that issue, reaffirmed that these children “are entitled to be
educated in the same conditions as other children whatever the duration and form
of their stay”. It also stipulates that “even if, when
applying for enrolment at school, the family is unable to provide one or more of
the necessary documents, the child
must be provisionally accepted, pending the
submission, as soon as possible, of those documents which will make it possible
to enrol
the child at school”. The circular also recommends solutions
where it is impossible to accept the child because of a lack of places in the
school,
such as enrolling at the regional distance-learning centre, the
possibility of benefiting from the infrastructure and activities
of the
sector’s secondary school or the setting in place of adapted educational
support (“combination schooling”).
II.
Free access to the media
- Several
laws have been enacted to guarantee freedom of access to the media and to
promote pluralism of expression within the media.
- The
law of 29 July 1982 on audio-visual communication introduced freedom of choice
with regard to the language of expression in the
media. One of the objectives
assigned to the public television broadcasting services (art. 5 of the law)
is to support the expression
of regional languages and cultures. That objective
is re-stated in the law of 1 August 2000 on freedom of communication, which
provides
that public service radio and television companies must contribute to
the expression of the main regional languages spoken in metropolitan
France.
Title III of the amended law of 20 September 1986 on the public audiovisual
sector states that public service companies “shall provide a diversity
of programmes ... promote democratic debate, exchanges between the different
sections of the population,
as well as social integration and citizenship ...
implement measures to promote social cohesion, cultural diversity and to combat
discrimination and offer a range of broadcasts that reflects the diverse nature
of French society. They shall safeguard the advancement
of the French language
and emphasize France’s cultural and linguistic heritage in all its
regional and local diversity” (art. 43-11 of the law of
31 March 2006).
- An
array of regional stations on the Radio France network broadcasts programmes
with a regional language and culture focus. The most
typical examples
among many are France Bleu Alsace and France Bleu Radio Corse. France Bleu
Alsace has two separate stations, one broadcasting
in French and the other in
the regional language. France Bleu Radio Corse Frequenza Mora is a
regional Radio France station in Corsica offering 14 hours of fully bilingual
broadcasts daily.
- Radio
France Internationale (RFI) also plays a key role in promoting and transmitting,
in France and abroad, the culture and heritage
of persons from African minority
backgrounds. Although RFI is now a company independent of Radio France, it
remains a public corporation
in which the State is the sole shareholder. All its
broadcasts are available in 20 languages on its website. RFI offers a very wide
range of programming on current events and cultural or social issues, with a
particular focus on Africa and the African diasporas.
- Lastly,
the above-mentioned Freedom of Communication Act of 2000 provides that the
Audio-visual Media Board is to ensure that “an adequate share of
airtime is allocated for programmes by associations with a community-relations
role, defined as associations
that foster exchanges between social and cultural
groups and the expression of different socio-cultural currents of thought
...”. A number of “community” radio stations run by
associations, such as Africa No. 1, Mangembo FM,
Média
Tropical, Beur FM and Radio Orient, broadcast cultural,
educational and musical programmes on a daily basis, encouraging and promoting
intra- and extra-cultural exchanges among the French
population.
III. Access to education and
training
- The
French system promotes equality and the provision of universal education, in
particular through free education and anonymous competitions.
It has
nevertheless been necessary to implement an equity policy to offset geographical
or social disadvantages that stand in the
way of equality of opportunity in
educational competition.
- A
variety of measures have thus been introduced, such as the grants provided on
the basis of social criteria, the strengthening of
the priority education zones
or the classes to prepare students for the entrance examinations to the
Grandes Ecoles (top-notch higher education establishments) in
lycées in disadvantaged neighbourhoods..
- More
recently, three innovative initiatives have introduced preferential treatment
based on socio-economic considerations, since they
benefit only pupils from
disadvantaged areas or modest backgrounds. The role of the Fondation
Euris (Euris Foundation), for example, is to provide substantial support to
talented but disadvantaged pupils by awarding merit scholarships.
The function
of the Ecole supérieure des sciences économiques et
commerciales (Higher School of Business and Commerce – ESSEC)
is to introduce a form of tutorship arrangement in partner schools for pupils
from disadvantaged backgrounds in order to improve
their chances of successfully
pursuing ambitious higher education studies. Finally, the Paris Institute of
Political Studies (Sciences Po) has introduced a partnership with some
priority education zones to open up and diversify its intake. It has introduced
a selection
process that makes it possible to waive the "normal" competition
that is open to everyone, for a certain number of pupils from
lycées in the priority education zones that have signed the
agreement.
IV. Access to employment
- A
charter of diversity in business was signed in November 2004 by several dozen
large enterprises, which have undertaken to ensure
diversity in their
recruitment and to encourage career advancement through the promotion of
cultural, ethnic and social diversity
among their staff.
- The
High Authority to Combat Discrimination and Promote Equality
(HALDE) b[20]
is particularly active in this field. It in fact stated in its report for 2005
that almost half of the complaints it receives relate
to employment. In
September 2006, it published a report on the issue. It has also asked the 150
largest companies in France and the
French authorities to undertake to introduce
practices and procedures capable of promoting equality and eliminating elements
of discrimination,
particularly lined to origin, and to carry out self-tests on
those arrangements to assess their relevance and effectiveness. Measures
of that
nature will be able to be introduced in other areas. In a resolution of 27
February 2006, it takes the view that France “may now effectively
combat different forms of discrimination linked to ‘ethnic’ origin
without it being necessary to report
to ‘ethnic’ counts”. All
mechanism based on anthropomorphic data must, in particular, be
prohibited”.
- The
rule laid down by article 2 of the Constitution, according to which “the
language of the Republic shall be French”, requires public-law bodies and
individuals to use
French when exercising a public-service remit, and
individuals cannot claim, in their relations with the authorities and the public
services, that they are entitled to use a language other than French, nor can
they be compelled to use it. However, that rule does
not prohibit the use of
translations, and its application must not lead to a failure to recognize the
importance of the freedom of
expression and communication in relation to
education, research and audio-visual
communication.
Annex III
Table extracted from a report from the Assemblée Nationale of
25 January 2006 on the family and children’s
rights
Applicability of the principal rights recognized by
the Convention according to the case-law of the Conseil
d'État and the Court of Cassation (a)
|
Articles of the Convention
|
Recognized rights
|
Creating obligations between States without giving
access to rights for individuals
|
Directly applicable
|
Article 2
|
1. Non-discrimination in the implementation of the rights of the
child
|
CE, M. Torres, 29 January 1997
CE, M. Guichard, 30 June 1999, since confirmed
Cass 1ère civ, 25 June 1996, Mazureck,
n° 94-14858
|
CE, the Association “ L'enfant et son
droit”, 30 April 1997
Cass crim, 16 June 1999, n° 98-84538
|
Article 3
|
1. In each decision concerning him or her, “the best
interests of the child shall be a primary consideration”
|
Cass 1ère civ, 10 March 1993, Lejeune,
n° 91-11310
|
CE, M. Torres, 29 January 1997; other judgements
confirming this one
Cass 1ère civ, 18 May 2005,
nos 02-16336 and 02-20613 confirmed on 14 June 2005,
n° 04-16942
|
|
2. The right to such protection and care as is necessary for
wellbeing
|
CE, the Association “Promouvoir”,
6 October 2000
|
|
Article 4
|
The States Parties undertake to take all appropriate measures for the
implementation of the rights recognized in the Convention
|
CE, M. Torres, 29 January 1997
Cass soc, 13 July 1994, n° 93-10891
|
CE, the Association “L'enfant et son droit”,
30 April 1997
|
Article 5
|
Respect for parental authority
|
CE, the Association “Promouvoir”,
6 October 2000
|
|
Article 6
|
1. “The inherent right to life” (Interpretative
deliration by France: does not constitute any obstacle to the law
authorising abortion)
|
CE, M. and Mme Soba, 29 December 1997
|
Cass crim, 27 November 1996, n° 96-80318
|
|
2. States Parties shall “ensure to the maximum extent
possible the survival and development of the child”
|
|
Article 7
|
1. The right to a name and to acquire a nationality and , as far as
possible, to know and be brought up by his or her parents
|
CE, Mme Al Haji Zain, the Association “La
défense libre” and M. Bertin, 11 October 1996,
since confirmed
|
|
Article 8
|
1. The right of the child to preserve his or her identity, including
nationality, name and family relations
|
CE, Préfet de la Gironde, 6 May 1996, since
confirmed
Cass 1ère civ, 2 June 1993,
n° 91-17487
|
|
Article 9
|
1. The right of the child not to be separated from his or her parents
except if “this separation is necessary for the best interests of the
child”
|
CE, Préfet de la Seine-Maritime, 29 July 1994,
since confirmed very frequently
Cass 1ère civ, 10 March 1993, Lejeune,
n° 91-11310
|
|
|
3. The right of the child who is separated from his or her parents to
maintain personal relations and direct contact with them on
a regular basis
|
|
Article 10
|
1. States Parties to take a positive approach to applications for
“family reunification”
|
CE, Préfet de la Gironde, 6 May 1996, since
confirmed
|
|
|
2. The right of the child to leave any country and to enter his or her
country
|
|
Article 11
|
1.Measures to combat the illicit transfer and non-return of children
abroad
|
CE, Préfet du Val d'Oise; 10 April 1996
|
|
Article 12
|
1. The right of the child to express his or her own views in all
matters affecting him or her and have them given due weight
|
CE, M. Paturel, 3 July 1996
Cass 1ère civ, 10 March 1993, Lejeune,
n° 91-11310
|
Cass crim, 8 December 1993, N° 92-85509
Cass 1ère civ, 18 May 2005,
N° 02-20613 (on the 12-2)
|
|
2. The opportunity to be heard for this purpose
|
Article 13
|
1. The right to free expression and to receive and impart information and
ideas
|
|
|
Article 14
|
1. Liberty of thought, conscience and religion
|
CE, M. Paturel, 3 July 1996
|
|
|
3. Freedom to manifest one’s religion and beliefs (subject to
the law)
|
|
|
Article 15
|
1. Freedoms of association and peaceful assembly
|
|
|
Article 16
|
1. Respect for privacy, family, home, correspondence, honour and reputation
|
CE, Mme Al Haji Zain, Association “ La défense
libre”, and M. Bertin, 11 October 1996
|
CE, Demirpence, 10 March 1995
CE, Mme Douaud, 21 February 1997
Cass crim, 16 June 1999, n° 98-84538
|
Article 17
|
Access to information from a diversity of sources
|
|
|
Article 18
|
1.”The two parents have common responsibilities for the upbringing
and development of the child”
|
|
CE, The Association “L'enfant et son
droit”, 30 April 1997
|
|
2. The right to appropriate assistance from the State in the exercise
of these responsibilities
|
|
|
|
3The right to childcare services
|
|
|
Article 19
|
1. protection of the child from all forms of violence
|
|
Cass crim, 22 June 1993, n° 91-86139
|
Article 20
|
1. The right of the child deprived of his or her family environment to
special protection and assistance provided by the State
|
CE, Mme Mosquera, 6 June 2001
|
|
|
3. Possibility of placement for the child, taking account of his or
her ethnic, religious, cultural and linguistic background
|
|
|
Article 21
|
The best interests of the child shall be the paramount consideration in
relation to adoption; inter-country adoption to be envisaged
only in the absence
of a solution in the child’s country of origin
|
|
|
Article 22
|
1. Protection and humanitarian assistance for child refugees
|
|
|
Article 23
|
1. The right of children with a disability to “lead a full
and decent life”
|
|
|
|
2. The right of the child with a disability to special care and
assistance which is appropriate to his or her condition
|
|
|
Article 24
|
1. The right “to the enjoyment of the highest attainable
standard of health and to facilities for the treatment of illness and the
rehabilitation
of health”
|
CE, Préfet de la Seine-Maritime against Mme Balondo,
31 July 1996, since confirmed
|
|
|
3. Abolishing “traditional practices prejudicial to the
health of children”
|
|
Article 25
|
The right of a child who has been placed to a periodic review of his or her
treatment or placement
|
|
|
Article 26
|
1. The right to social security
|
Cass soc, 13 July 1994, n° 93-10891
CE, GISTI, 23 April 1997
|
|
Article 27
|
1. The right to a standard of living adequate for development
|
CE, GISTI, 23 April 1997
|
|
|
3. State aids for this purpose
|
|
|
|
4. Appropriate measures for the recovery of maintenance
|
|
|
Article 28
|
1. The right to education
|
CE, M. and Mme Hemaizia, 21 October 1996
|
|
|
2. School discipline to conform to the Convention
|
|
Article 29
|
1. The goals of education
|
CE, M. et Mme Hemaizia, 21 October 1996, since
confirmed
|
Cass 1ère civ, 9 April 1991,
n° 90-05026
|
|
2. Freedom to establish educational institutions, subject to
observance of the principles in 1
|
|
Article 30
|
Specific cultural rights accorded to ethnic, religious and linguistic
minorities
|
Reservation by France
Cass 1ère civ, 15 July 1993,
n° 92-05015
|
Reservation by France
|
Article 31
|
1. The right to rest, leisure and recreational activities and to take part
in cultural and artistic life
|
|
|
Article 32
|
1. The right to be protected against economic exploitation and the
prohibition of any work involving a risk to the child
|
|
|
Article 33
|
Protection against illicit drugs
|
|
|
Article 34
|
Protection against sexual exploitation and abuse
|
|
|
Article 35
|
Protection against abduction, sale and trafficking
|
|
|
Article 36
|
Projection against “all other forms of exploitation prejudicial to
any aspects of the child’s welfare”
|
|
|
Article 37
|
Prohibition of any inhuman treatment (including capital punishment);
deprivation of liberty to be as brief as possible and to take
account of the
child’s needs; the right to legal assistance and to challenge the legality
of his or her detention
|
Cass crim, 18 June 1997, n° 97-82008
|
CE, M. Nezdulkins, 14 February 2001
|
Article 38
|
1. Respect for humanitarian law in armed conflicts
|
|
|
|
2. Prohibition of participation by children aged under 15 in armed
conflicts
|
|
|
Article 39
|
Right to recovery and reintegration for child victims of mistreatment
|
|
|
Article 40
|
1. Right to treatment of certain kinds for any child suspected or
convicted of infringing the penal law
|
|
Cass crim, 27 November 1990, n° 90-85658
|
(a) When the case-law is unchanged, only the first judgement recognizing or
rejecting the direct applicability of an article of the
Convention is quoted.
NB: CE: Conseil d'État; Cass crim: Court of
Cassation, criminal chamber; Cass 1ère civ: Court of
Cassation, first civil chamber; Cass soc: Court of Cassation, social
chamber.
|
Annex
IV
INTEGRATING YOUNG PEOPLE INTO SOCIETY AND WORKING LIFE
A
better introduction for young people to work and business
- The
first route to a better introduction for young people to working in businesses
is through a significant extension of apprenticeships.
Programming Law
No. 2005-32 of 18 January 2005 set a target of 500,000 apprentices in 2009,
and the number of apprentices has since
risen from 357,000 in March 2005 to
374,000 in June 2006. These results were achieved thanks to the growing
attractiveness of apprenticeships
for young people (the attractions including
tax-free income and an information campaign), improvements in the quality of
monitoring
and in working conditions provided in apprenticeship centres (which
alternate training with work experience), a tax credit of €1,600
a year
for apprentice-masters and the conclusion of “contracts of aims and
means” between the State and 23 of the 26
regions, aimed at improving the
supply of training and the quality of apprenticeships.
- In
a number of respects, the Government’s information and promotional
campaigns addressed to young people and employers, and
aimed at extending
apprenticeships, reflect the action it has been taking to prevent and combat
discrimination. These include the
2007 campaign, “Apprenticeship and
Training: a Major Plus for Success”, launched under the Government’s
Plan for
Social Cohesion.
- Arrangements
for introducing young people to working in businesses have also been
strengthened by “Contracts for Working Life”,
which have been
gathering momentum. These
contracts a[20],
especially those which train young people for working life by alternating work
experience with more formal training, have been growing
very rapidly in numbers:
115,000 were signed in 2005. They are shorter than Qualifications Contracts
(15 months compared with 18),
and the qualifications targeted are more
influenced by the business sectors themselves, which have direct responsibility
under the
reformed arrangements for identifying the kinds of training and
support best calculated to meet their skills needs.
- In
addition, the public authorities, by offering employers a reduction in charges
for three years, have encouraged them to offer indefinite
contracts (Young
People in Business Contracts) to young people aged between 16 and 25 who do not
have the Baccalauréat. Almost
120,000 young people had these
contracts in June 2006 and 260,000 have signed up since they were introduced:
half of these young
people had left school without qualifications and a quarter
were unemployed. For the future, the categories of young people eligible
to
benefit from this contract have been extended (to include young people living in
sensitive urban areas and the long-term unemployed)
and new measures of support
are planned through “Contracts for Integration into Life in Society”
(see below) under Law
No. 2006-457 of 21 April 2006 on access for young
people to active commercial life.
- Finally,
the National Employment Agency and its local branches are being required to
conduct interviews with all 57,000 young people
who have been unemployed for a
year or more. This measure is part of the Government’s Emergency Plan for
Employment of June
2005 and concentrates on groups whose employability is
limited by their lack of qualifications. This operation has involved 76,294
interviews with 71,533 unemployed people. Almost 84% of the young people
interviewed have had a job offer, 59% were in a job between
June and
October 2005, and a quarter were still in employment in mid-October 2005.
Although most of the young people who were interviewed
are still unemployed,
this operation has been productive in the circumstances. The young people
involved have had a period of paid
employment, which has made them more
employable and allowed some of them to integrate permanently into the labour
market or to get
training. Persevering with the initiative has led to a drop of
9.4% in long-term unemployment among those aged under 25, significantly
higher
than the drop of 7.2% recorded for the over-25s.
Better alignment of training with employment
- A
public advisory service has been established to help with the transition between
study and working life. It will offer support to
pupils and students from the
end of secondary school to the third year of university, and will work on
improving the alignment between
the choices that students make and their
prospects for employment. There is an interministerial delegate for guidance on
careers
and employment, with the task of ensuring consistency in guidance
arrangements at national level and in the regional education authorities,
and
developing a national template during 2006-2007 for guidance on careers and
employment, to be drawn up in consultation with the
students’
organizations. There are plans to open a guidance service on careers and
employment in each university, in association
with the lycées within the
regional education authority concerned, to expand the activities of career
guidance advisers, to
train educators generally in giving guidance and to
improve liaison between secondary and higher education.
- Targeted
measures have also been taken, including, at the end of 2006, the creation of a
starting allowance for
students b[2]
and a plan to promote almost 50,000 pre-recruitment placements between now and
the end of
2007 c[2] , as
well as the creation of a tax credit for young employees who take up jobs in
sectors suffering from chronic difficulties in
recruitment d[208].
Raising businesses’ awareness of diversity
- Contracts
for Integration into Life in Society are a central measure in the
Government’s Plan for Social Cohesion for Young
People. They have been
designed to support young people finding it particularly hard to get into
employment (of whom there are about
800,000). Between the creation of the
contracts in May 2005 and 30 June 2006, 211,000 young people signed up, of whom
almost half
had no qualifications. 195,000 remained under contract in June 2006,
while 10,000 had left on gaining permanent employment. The Law
of 21 April 2006
on access for young people to active business life reformed and improved the
contracts by extending access to young
graduates suffering particularly from
exclusion from employment.
- The
Pathway to Careers in the Local, Regional, Hospital and State Services is a new
form of recruitment to the civil service. It applies
to young people between the
ages of 16 and 25 who are having difficulty in finding employment, who are
non-graduates, who have no
recognized professional qualification or whose level
of qualifications is below the level of the Baccalauréat. Preliminary
selection of candidates is carried out by the public employment service. The
Pathway is a contract under public law with the employment
service for a period
of one to two years and alternates training with placement in the service
itself, under the supervision of a
tutor. Pay is at least 55% of the minimum
wage for 16-20-year-olds and 70% for others, and there is an exemption from
social taxes,
which are paid by the employer. At the end of their contract
period, subject to passing a professional examination, the young people
involved
will be able to join the civil service in Grade C. It is expected that these
arrangements will involve 20,000 young people
a year.
- To
ensure that falling levels of unemployment also benefit young people from urban
areas where the prospects for employment are particularly
difficult, the
Government has decided that the Prefects will convene “Solidarity for
Jobs” groups in every sensitive
urban area to bring together the various
participants in employment policy, provide them with leadership and bring all of
their capabilities
to bear. The 750 sensitive urban areas will benefit from
increased resources during 2007.
Annex V
INTER-COUNTRY ADOPTION
- Law
No. 2005-744 of 4 July 2005 on the reform of adoption created the French
Adoption Agency (AFA). The Agency has its own legal personality
under public
law, with the status of a public interest grouping (groupement
d’intérêt public), and operates under State supervision.
Opened on 18 May 2006, it took on some of the functions of the Inter-country
Adoption Branch
created in 1987: providing information and guidance to adoptive
parents; and the handling and monitoring of individual cases in
all States
Parties to the Hague convention, and in other States as far as allowed by its
authorization by the Minister for Foreign
and European Affairs and its
accreditation by the countries concerned.
- It
has two major advantages in acting, and gaining accreditation, overseas. As a
French body under the protection of the State, with
the General Councils of the
départements among its members and partners, it can offer weighty
guarantees to foreign States. With its own legal personality under public law,
it has a legal status as an intermediary for adoption that the Inter-country
Adoption Branch, as part of the national civil service,
did not and could not
have.
- The
Agency exercises its functions through representatives on the staff of each
département designated by the President of its General
Council; and, in children’s countries of origin, through specially
recruited local representatives
- Complementing
the work of French bodies authorized in relation to adoption under private law,
whose umbrella bodies are among its
members, the AFA is a new resource that the
public authorities have provided in order to make the steps that would-be
adoptive parents
need to take overseas easier and safer.
- Another
component of this reform is Decree No. 2006-1128 of 8 September 2006, which
placed responsibility for the Central Authority
for Inter-country Adoption
(ACAI) directly with the Ministry for Foreign and European Affairs. This Decree
specified the functions
of the Authority, which is responsible for
“guiding and coordinating the activities of the services and
authorities with competence in relation to inter-country adoption”,
and laid down its relations with the Higher Adoption Council (CSA).
- ACAI
consists of two representatives from each of the three Ministries involved
(Foreign and European Affairs, Justice and Work, Social
Relations and
Solidarity) and of two representatives of the départements
nominated by the Assemblée des Départements de France
(ADF). It has a secretariat general located within the Ministry’s
Directorate for French Citizens Abroad and Foreign Citizens
in France.
- The
Secretariat General of the Central Authority for Inter-country Adoption
(SGAI) exercises the functions of ACAI on a delegated basis between its
meetings, as well as the functions arising from the Ministry of
Foreign and
European Affairs’ own responsibilities, which are those most closely
connected with oversight and “governance”
of inter-country adoption.
- It
differs from the Inter-country Adoption Branch, which it succeeded, in not
having the operational functions that the Branch fulfilled
in certain cases in
the preparation and submission of individual applications for adoption. As far
as French and international standards
are concerned, its functions principally
involve regulation and monitoring, along with supervision and providing legal
expertise.
While in future it will no longer in principle directly deal with
individual dossiers prior to the completion of legal procedures
for adoption in
foreign countries, the Ministry of Foreign and European Affairs will continue to
have clear and definite responsibilities
in relation to inter-country adoption.
These responsibilities mainly concern the following, in liaison with other
ministries concerned:
- – respect
by France for its obligations under the Hague Convention of 29 May 1993 on
Protection of Children and Cooperation
in respect of Inter-country Adoption and
under the United Nations Convention on the Rights of the Child;
- – preparing,
providing the secretariat for and implementing the work of the Central Authority
for Inter-country Adoption, including
its conclusions, recommendations and
proposals, as well as statistics on adoption;
- – the use
of the diplomatic and consular network to collect and update information of all
kinds on adoption procedures, conditions
for adoption overseas and difficulties
encountered by our fellow-countrymen and women;
- – State-to-State
and central-authority-to-central-authority relations with children’s
countries of origin and other receiving
countries, including the negotiation or
renegotiation of bilateral agreements or multilateral instruments;
- – the
accreditation and monitoring of organizations authorized in relation to adoption
under private law and, where necessary,
support for their development by
grants;
- – authorising
the AFA state-by-state to operate in countries which are not parties to the
Hague Convention;
- – taking
part in the preparation of French statutory and regulatory standards for
inter-country adoption; and
- – issuing
adoption visas through the consular service.
- Alongside
the Ministries of Justice and Work, Social Relations and Solidarity, the
Ministry of Foreign and European Affairs takes
part in the formal deliberations
of the AFA and plays an active part in its work. It also makes strenuous efforts
to lend its full
support to the AFA in securing full recognition in States of
origin.
Annex VI
COMBATING FORCED MARRIAGES
- Law
No. 2006-399 of 4 April 2006 reinforcing the prevention and suppression
acts of violence within the couple or against minors has
contributed to
strengthening efforts to combat forced marriages.
1. Alignment
of the legal age for marriage for boys and girls (article 1 of the Law)
- The
Law has ended a difference between men and women as regards marriage that has
existed since 1804, by increasing the minimum legal
age for marriage from 15 to
18, as was already the case for men. New article 144 of the Civil Code provides
that in future: “men and women may no longer contract marriage until
the age of eighteen”.
- The
purpose of this alignment of the legal age of marriage for girls with civil
majority, as for boys, is not only to restore equality
between the sexes as
regards marriage: above all, its aim is to make arrangements to combat forced
marriages of minors more effective.
- The
drafting of the Law preserves exceptions allowing minors to contract a
marriage. They must obtain, first, a dispensation (”for grave
reasons”)
from the age limit from the Public Prosecutor; and secondly, the
consent of their father and mother as provided for in article 148
of the Civil
Code. The consent of only one parent is necessary, since “disagreement
between the father and mother shall be taken as consent”.
- The
parent who has not consented to the marriage of the child while a minor is able
to continue to raise objections to the marriage
until it has been
celebrated.
- Extension
of the time limit for applications for the annulment of marriage (article 6 of
the Law)
- Another
purpose of the Law is to extend the time limit within which the validity of a
marriage which has been celebrated without the
free consent of one or both
spouses can be opposed. article 181 of the Civil Code, under which an
application for the annulment of
a marriage for a defect in consent can no
longer be considered “when cohabitation has continued for
six months after the spouse has regained his or her full freedom or
recognized his or her
error” is repealed.
- New
article 181 extends the time limit to five years and provides for the future
that: “an application for the annulment of a marriage for a defect in
consent may no longer be considered after the end of a period
of five years from
the marriage or from the time when the spouse acquired his or her full liberty
or when his or her error was recognized
by him or her”, aligning
the provisions with the position under the ordinary law relating to actions
for annulment (article 1304 of the Civil Code).
- Finally,
for the sake of consistency, the time limit for applications for annulment of
the marriage of a minor without the consent
of a parent, provided in article 183
of the Civil Code, is also increased from one year to five.
- The
ability of the public prosecutor to bring an application for annulment in the
event of a lack of free consent by one or both spouses
(article 5 of the Law).
- Action
against a marriage contracted without the free consent of one or both spouses
can now be taken, not only by the spouses or
the spouse whose consent was not
free, but also by the Ministry, especially in cases of physical or psychological
violence. Before
this Law, the Public Prosecutor could bring an application for
annulment of a marriage only in the complete absence of consent.
- Article
180 of the Civil Code, amended by the present Law, also provides that
“coercion of the spouses or of one of them, including by means of fear
or reverence felt for a parent or other forebear, shall
constitute grounds for
annulment of the marriage”.
4. Ability to delegate
interviews with the prospective spouses (article 4 of the Law)
- The
Law provides flexibility by allowing arrangements for joint or separate
interviews with the prospective spouses to be delegated.
- For
marriages in France, article 63 of the Civil Code now authorizes the registrar
to delegate the holding of joint or separate interviews
to one or more civil
servants in the service of the registry of civil status. If one of the
prospective spouses lives abroad, the
delegation may be made to the diplomatic
or consular agent with competence in the country concerned.
- Similarly,
for marriages abroad, article 170 of the Civil Code allows diplomatic and
consular agents to delegate the holding of joint
or separate interviews to a
civil servant or civil servants in the service of the French registry of civil
status. If one of the
spouses or prospective spouses is resident in a country
which is not the country where the marriage is celebrated, holding the interview
can be entrusted to the officer of the civil status registry with competence in
the country concerned.
Annex VII
FEMALE SEXUAL MUTILATION
- Because
of the numbers of African immigrants, female sexual mutilation has been a
sensitive and constantly topical subject in France
for more than 20 years. These
traditional practices are contrary to human dignity and extremely prejudicial to
the physical and psychological
health of women and girls. For this reason, the
Government has taken strenuous steps in two main ways to eradicate them: more
effective
prosecution and stronger prevention.
- Law
No. 2006-399 of 4 April 2006 strengthening the prevention and
suppression of violence within the couple or against minors has made
countermeasures more effective.
- Under
French law, no legal definition exists of acts of excision, or of sexual
mutilation more generally. “Excision cases”
were dealt with as
misdemeanours until 1983, when the Court of Cassation established that removal
of the clitoris was a mutilation,
in the sense used in the French Criminal Code,
in the case of a Frenchwoman who had mutilated her daughter. This was a case of
child
abuse, which did not arise from a traditional context. Now, such practices
can be prosecuted and punished as criminal offences, as:
- – acts of
violence having given rise to a permanent mutilation or infirmity, which are
crimes punishable by 10 years’
imprisonment or a fine of €10,000
(art. 222(9) of the Criminal Code), and by 15 years’ imprisonment and
a fine of €150,000
when the acts were committed against a young person
under the age of 15; or as
- – acts of
violence constituting involuntary homicide, which is a crime punishable by
15 years’ imprisonment (art. 222(7)
of the Criminal Code), and
by up to 20 years’ imprisonment when it involves young people under the
age of 15.
- A
criminal case can also be brought on the grounds of acts of violence having
caused a temporary incapacity for work lasting more
than eight days, in
accordance with article 222(12) of the Criminal Code, which provides for a
penalty of five years’ imprisonment
and a fine of €75,000 when
committed against a person under the age of 15.
- Prosecutions
are also possible for failure to assist a person in danger: anyone who fails to
take immediate action, in the absence
of risk to himself or a third party, to
prevent a serious crime, or a crime against the person, is subject to five
years’ imprisonment
and a fine of €75,000 (art. 223(6) of the
Criminal Code). The same penalties apply to anyone who wilfully refrains from
providing
to a person in danger assistance that, without risk to himself or a
third party, he could provide, either by taking action personally
or by seeking
help.
- The
purpose of the following amendments, introduced by the Law of 4 April 2006, is
to make measures against these practices more effective,
without creating for
them any specific legal definition.
a) Extension of the
limitation period for criminal proceedings
- As
is the case already for incest, the limitation period for criminal proceedings
has been increased to 20 years from the point at
which the victim reaches the
age of majority for:
- – serious
crimes of violence causing permanent mutilation or infirmity committed against
minors (art. 222(10) of the Criminal
Code); and
- – crimes
of violence committed against minors causing a temporary interruption of work of
more than 8 days (art. 222(12) of
the Criminal Code).
b) Strengthening measures against sexual mutilations
committed abroad
- The
objective of the new article 222(16)(2) added to the Criminal Code is to extend
the application of French law punishing these
practices to minors with foreign
nationality habitually resident in France who are victims of acts of sexual
mutilation abroad.
c) Scope for waiving professional
confidentiality in cases of sexual mutilation
- By
means of exceptions to article 226(13), the Criminal Code already provided for
the waiver of professional confidentiality, and
of medical confidentiality in
particular, in the case of sexual harm inflicted on a minor, or on any person
who is not in a position
to protect himself or herself by reason of age or of
physical or psychological incapacity. The reason for which it was decided to
refer expressly to sexual mutilations in article 226(14) of the Criminal Code
was to eliminate any possible ambiguity in the definition
of terms and promote
the reporting of cases.
II. A number of initiatives have been
taken to improve prevention and information
- The
booklet, “Protecting our daughters from excision” has
recently been updated and re-issued in an edition of 10,000. It reflects recent
legislative advances with the passing of the Law
of 4 April 2006.
- A
legal guide has recently been prepared especially for immigrants of both sexes
and their children living in France. It gives clear
guidance about the
unacceptability of certain practices, including female sexual mutilation. It
will be translated into several languages
and distributed widely, including:
- – on the
home pages of the National Agency for the Reception of Aliens and for Migration;
- – in
information centres on women’s’ and family rights; and
- – among
associations and via mother and child welfare consultations, town halls etc.
- In
addition, the Ministry for Social Cohesion and Equality gives, and regularly
renews, support to associations specializing in prevention.
These associations
act as partners of the public authorities in dealing with young people and their
families, and with the members
of the various professions involved. They know
about, and take account of, the cultural factors which motivate these
mutilations,
and understand the aspirations of young women, the weight behind
the patriarchal traditions that they are working against, and how
they operate
in practice. They also see straight talking to the institutions responsible for
child protection, women’s rights
and social aid as very much part of their
role.
- In
December 2006, the Ministry of Health organized a national symposium entitled
“Finishing with Sexual Mutilation”. One of the aims set for
this event was to identify what had already been done, and what remained to be
done, to prevent the sexual
mutilation of children while visiting their
countries of origin. Another was to improve arrangements for identifying women
and girls
who have suffered this type of mutilation and for providing them with
support and surgical and psychological care. A plan of action
is being prepared
with the aim of having arrangements in place by 2010 to prevent any further
mutilations of women living in France.
- Already,
action has begun to produce better estimates of the numbers affected by
mutilations in France, to understand better the underlying
reasons why these
practices persist, to find out more about the impact of mutilation and
associated complications on women’s
health and to assess the number of
women who may need surgical care.
- The
prevention of any new sexual mutilation of young girls living in France will
come about through the financial support provided
by the Minister of Health to
the associations working on the ground. It will also be supported through the
initial training of health
professionals involved in providing care to women and
girls who, in addition to their preventive role, will be better equipped to
provide the right care to those who have suffered mutilation.
III. Examples of cases
- The
first prosecution for involuntary homicide following an excision was in 1979.
Others followed in 1984 in the regional courts with
jurisdiction over
misdemeanours. The first case involving excision dealt with in the Assize Court,
reflecting the criminal nature
of the act which had by then been established,
was in 1988.
- Prison
sentences pronounced in cases of “traditional excision” were
suspended in cases dealt with by the French courts
until 1991 for the women who
had carried them out and until 1993 for parents. In the “C”
affair, six little girls from
a single family were subjected to excision between
1982 and 1983. The parents were sentenced to five years’ suspended
imprisonment
and two years’ probation. The woman who had carried out the
excisions was sentenced to five years’ imprisonment (judgement
of the
Assize Court of Paris, 6-8 March 1991).
- The
same woman was again sentenced to five years’ imprisonment, one of them
unsuspended, for having performed excision on seventeen
other little girls in
June 1984. One of them, aged three months, did not survive her injuries
(judgement of the court of Bobigny,
1827 March 1993).
- In
1993, a father and the husband of a woman practising excisions were sentenced to
immediate imprisonment, for one and six months
respectively.
- Two
cases have been dealt with more recently. In February 1998 a Malian woman was
sentenced by the Assize Court of Paris to eight
years’ imprisonment having
been found guilty of practising excision on 48 little girls. On 15 March 2002,
the Assize Court
of Seine-Saint-Denis sentenced the members of two Malian
families who had had excision performed on seven of their daughters at the
age
of a few months between 1985 and 1989 to substantial suspended terms of
imprisonment.
- Up
to the present, prosecutions have mainly taken place in cases referred to the
authorities by French professionals in a child protection
context.
- Questions
of sexual mutilation are also taken into account in decisions on refugee status
(in December 2001, refugee status was granted
to a Malian couple and a
Somali woman who were refusing to submit their daughters to excision) and, in
litigation concerning aliens,
(on 12 June 1996, the Administrative Court of
Lyons overturned an order for the expulsion of a Guinean woman because of her
fear
that her children would be subjected to excision in the event of her
return, the Court concluding that excision was “cruel,
inhuman and
degrading treatment” in the sense of article 3 of the European Convention
on Human Rights).
Annex VIII
THE ENFORCEABLE RIGHT TO HOUSING
I. The “DALO” Law - content and
procedures
- Law
No. 2007-290 of 5 March 2007 establishing the enforceable right to housing
(le droit au logement opposable (“DALO”)) and dealing with
various measures favouring social cohesion is a considerable advance in housing
policy.
- The
right to housing is enshrined in French positive law as a “fundamental
right” by the Law of 6 July 1989 on landlords
and tenants and as a
“duty of solidarity for the whole nation” (Law of 31 May 1990 for
the implementation of the right
to housing).
- The
Law of 5 March 2007 goes further by making the right to housing compulsory in
the case of certain categories of people in difficulty.
It offers these people
the ability to make a consensual application to a political authority designated
by the Law as responsible
for implementing the right to housing. If this
approach is unsuccessful, there is a right of recourse to the courts.
- The
right to decent and independent housing is guaranteed by the State to every
person resident on French territory permanently (as
defined under criteria which
are to be set by Decree by the Conseil d’État) and lawfully,
who is not able to secure or such housing by his or her own efforts.
- The
right is exercised through a consensual application to a mediation committee,
which can then refer the case to the Prefect, and
then through a non-consensual
application to an administrative judge
II. Consensual applications to the mediation
committee
- A
reference to the mediation committee can take two forms: an application for
housing or an application for shelter.
- Provided
that it meets the conditions set in regulations for access to social housing
(lawful and permanent residence on French territory,
and consistency with
resource thresholds), a reference of this kind can be made in two separate
cases.
- In
one case, a reference can be made if the applicant has been given no offer by
the end of an “abnormally long waiting period”
defined in each
département by an order of the Prefect.
- In
the other, the committee can consider a case before the expiry of the waiting
period when the applicant is within one of the categories
of special priority
need defined by the Law. These categories consist of those who are:
- - homeless;
- - threatened
with eviction without rehousing;
- - sheltered
or housed temporarily in transitional accommodation;
- - housed
in accommodation which is unfit for habitation, unhealthy or dangerous; or
- - housed
in accommodation which is manifestly overcrowded or is not “decent”
housing, if they have in their care at least
one child who is a minor, or if
they have a disability or have in their care a person with a disability.
- The
committee designates the applicants which it recognizes as being in priority
need and to whom accommodation should be allocated
urgently, basing its decision
on evidence provided by the applicant, by the various bodies which have already
been involved in the
application (landlords, associations, social services etc),
and on the evidence from any prior consensual application. The decision
is
notified to the Prefect and the applicant.
- The
committee can also propose that the applicant should be accommodated in some
form of shelter, if such a solution seems better
suited to the applicant’s
circumstances.
- Decisions
by the committee to reject applications may be appealed before the
administrative court.
III. Applications for
admission to an establishment offering shelter
- This
second type of consensual application is one of the main innovations made by the
Law of 5 March 2007. It is not subject to a
waiting period and is open to any
person who has not received any suitable offer following an application for
admission to a shelter
establishment, a transitional establishment or
transitional housing, a “foyer” offering socially supported
accommodation or a hostel for those in social need.
- The
committee sends the Prefect the list of those for whom admission to one of these
establishments must be arranged.
IV. The role of the Prefect on referral by the committee of
mediation
- When
informed by the mediation committee of the cases of persons judged to be
priorities either for the allocation of housing or for
admission to a shelter
establishment, the Prefect is obliged to act.
- The
Prefect refers those applying for housing to a social landlord which has
appropriate accommodation available and sets a deadline
for the allocation of
housing. Charges for this allocation fall on the Prefect’s budget. If
the landlord obstructs the allocation,
the Prefect has full power to order it,
and may, if need be, make the allocation himself directly. The Prefect can also
fulfil his
obligation by proposing certain types of approved private
accommodation, as well as social housing.
- Finally,
the Prefect must offer places in a suitable establishment to applicants for
shelter judged by the mediation committee to
be in priority need.
V. Recourse to the administrative court
- Although
consensual applications were already provided for in part when the former
legislation was in force, the ability to have recourse
to the courts is the real
innovation in the Law establishing the enforceable right to housing.
- The
ability to apply to the administrative court is yet to take effect, and will be
brought into force in two phases.
- Those
entitled to invoke the mediation committee without a waiting period (those
applying for admission to shelter establishments
and applicants for housing who
come within the various categories mentioned in the Law), and who have been
recognized by the committee
as being in priority need, will be able to apply to
the administrative court from 1 December 2008, if no offer suited to their needs
and capacities has been made to them before the expiry of a period following the
committee’s decision; the length of that
period will be set by
decree.
- From
1 January 2012, applicants for housing whose applications have taken longer than
the “abnormally long” waiting period and who have been
declared to be in priority need by the committee will be able to apply to the
administrative
court.
- A
single judge must rule on the application within two months. If that judge
determines that no suitable offer has been made, he
must order that the
applicant be housed by the State, and may accompany the ruling with a fine,
payable to the regional funds for
urban development, which draw their resources
from the penalties paid by communes which fail to meet their social
housing quota.
Annex IX
THE FUNCTION OF
ADOLESCENTS’ CENTRES
- Adolescence
is a particularly delicate time in the formation of personality. It is
characterized by the various maturing processes
(physical, sexual, emotional,
intellectual and related to the sense of self) which lie between childhood and
youth. It is also the
time when we learn about the relationship in which we
stand to different kinds of “space”: in the family, in
relationships
and in life as a citizen.
- Adolescents’
centres are there to meet the needs of adolescents and those around them and to
support the reshaping of individual
personality during a period of particular
vulnerability. Because they have an outlook on the city, adolescents’
centres help
those who have a tendency to remain outside traditional frameworks
for personal contact to find access to them.
- An
adolescents’ centre is a place for providing shelter and care. It is
focused on the health needs of adolescents. It accommodates
adolescents and
their families with a very wide range of needs and requirements, from major
psychological problems to educational
and social guidance. It helps adolescents
to identify how their health needs can be met. It establishes, and provides a
formative
influence on, a network of the professionals dealing with adolescents
in each département. It is a central source of information and
advice for everyone, and a centre for epidemiological research.
- The
principle is to take comprehensive responsibility for adolescents who are in
major difficulty, based on a holistic response to
needs, whether health-related,
social or behavioural, so as to arrive at a project which jointly engages the
institutions and services
concerned while also securing the participation of the
young people themselves.
- The
adolescents’ centre provides a framework, which is stable and in which
best practice is shared, where the professionals
involved can create a common
philosophy as a basis for taking comprehensive responsibility for adolescents,
starting from each professional’s
own skills and insight and the
respective roles of the institutions that they come from. This process of
synthesis may lead to coordinated
arrangements to address the complex
circumstances of young people in major difficulty, to defining an
individually-tailored action
plan and to providing support in following it
through; equally, it may lead to encounters and cross-fertilisation between
professionals
with different viewpoints, working on generic problem areas for
adolescents in difficulty, allowing the adolescents’ centre
to become a
place for exchange of information and, in time, for the provision of resource
material and the exchange of best practice.
- Only
20% of adolescents experience difficulties in establishing themselves socially
or undergo significant psychological suffering.
One nevertheless cannot help
being struck by the growth, or at least the marked visibility, of violence by
adolescents, manifested
primarily against themselves, and, more intermittently,
against their surroundings. Physical illness, and frequent visits to the
doctor,
are very often only the signs of pervasive suffering on the part of the
adolescent, and cries for help calling not just for
reference to psychiatric
support, but rather for a genuine programme of multidisciplinary action.
- It
is young people aged between 12 and 21 who encounter personal or family
difficulties of a social, educational, medical or legal
kind that the
adolescent’s centres are there to deal with. They have difficulty in
understanding and expressing their problems,
and do not ask for help on their
own initiative. The symptoms that they show may be educational (stalled progress
at school), medical
(suicide attempts or eating disorders), behavioural
(addictions, acts of delinquency, withdrawal or breakdown of relations with the
family unit).
- The
aim is to help the adolescent change his or her poor self-image and negative
view of others, and to preserve or re-establish outward
links of a family,
behavioural, educational or health-related kind, as the case requires. What is
involved is providing support for
the reshaping of individual personality during
a period of particular vulnerability.
- Many
health problems crystallize around adolescence. Questions about the care that
the adolescent needs to take of himself or herself,
whether physically or
psychologically arise from traffic accidents, from the consumption of
substances, legal or illegal, from depression
and suicide attempts, from
attitudes to food, from body-image, from eating disorders and from sexuality.
- Adolescents
give expression to psychological disturbances of more or less serious kinds
through their bodies. This applies to rejection
of physical changes, problems
with relationships (conflicts with one’s immediate circle), or emotional
or sexual problems,
and with suffering linked to physical and sexual abuse,
depression and suicide, via rejection of school, violence, bullying and
extortion,
drugs etc.
- Psychosocial
disturbances must be seen as the principal ways in which physical suffering is
expressed (sic). They are closely linked
with specific factors in vulnerability,
such as lack of self-confidence and the need to feel a sense of belonging to a
social group.
- Early
abdication of responsibility, lack of role models and the brittleness implicit
in narcissism lead to multiple breakdown in relationships.
- It
is at adolescence that one first finds momentum beginning to build towards the
major psychiatric illnesses (schizophrenia, mood
and personality disorders etc),
which are known to manifest themselves in an atypical fashion at the outset, and
to require the earliest
possible diagnosis and intervention.
- The
goal is to articulate the regressive attitudes that adolescents express
(risk-taking, suicide attempts, substance abuse, sleep
and eating disorders and
other disturbances in disorders in body rhythms etc) and put them into language
allowing them to be understood
and analysed and developed into a form in which
they are capable of communication in family and social relations.
- Adolescents
need a frame of reference. They need protection from suffering which is too
extreme, and to be enabled to understand their
violence, to prevent its
expression in an explosive form and to transform it into creative energy.
- Although
the mission of the adolescents’ centre revolves around prevention and the
protection of young people, the aim is not
to prevent young people from taking
risks altogether, but rather to allow them to encounter adults whose function is
clearly defined
and who are able to give them guidance and support. This process
sometimes, but not always, takes the form of clinical care.
- The
adolescents’ centre cannot and should not take the place of the people
with whom adolescents are already involved. It takes
an approach based on
filling gaps in provision, and as far as possible on recreating a sense of
direction in the young person’s
life journey and the creation of a network
bringing together the various people who deal with him or her.
- The
aim is to pay careful attention to the adolescents’ difficulties, to
create a climate of confidence and to provide them
with the basis for making
choices and decisions that are likely to protect their health while respecting
the freedom which is so
close to the adolescent’s
heart.
Annex X
MINORS WHO OFFEND: ACTIVITIES OF CHILDREN’S
JUDGES
AND THE CHILDREN’S COURTS
|
2005
|
Change 2005/04 on%
|
Minors who offend dealt with by children’s judges
|
82,556
|
+1.9
|
Under 13
|
3,474
|
-4.8
|
13-14
|
16, 130
|
-0.1
|
15-16
|
39,678
|
+4.1
|
17
|
23,274
|
+0.8
|
Pre-sentencing measures
|
29,915
|
+10.2
|
Social reports, behavioural reports, expert opinion
|
7, 686
|
+ 0.9
|
Placement, bail, reparation
|
17,581
|
+14.5
|
Pre-trial supervision
|
3,537
|
+9.7
|
Remanded in custody
|
1,111
|
+ 18.4
|
Minors tried
|
73,161
|
-2.7
|
In private session
|
39,332
|
-4.2
|
In the children’s court
|
33,829
|
-0.8
|
Of which tried for crimes (serious crimes)
|
479
|
-5.5
|
Final measures and penalties ordered
|
82,333
|
-4.4
|
Case dismissed
|
8,585
|
-10.7
|
Reprimand referral to parents, no measure/penalty ordered
|
32,624
|
-3.4
|
Probation, judicial supervision, placement, reparation
|
9,683
|
+0.6
|
Tutelary measure
|
1,319
|
+74.0
|
Community service, suspended community service
|
3,873
|
+1.2
|
Fine or suspended fine
|
5,440
|
-18.8
|
Suspended imprisonment
|
5,152
|
-3.9
|
Suspended imprisonment with probation
|
9,453
|
-4.0
|
Imprisonment
|
6,204
|
-6.4
|
Source: Sous-Direction de la Statistique, des Études et de
la Documentation (Sub-directorate for Statistics, Studies and
Documentation), Table showing trends in the children’s courts, Key figures
for
the Justice System 2006.
-----
[1] Annex I
[2] Report of the
Children’s Ombudsman to the Committee’s Geneva meeting (February
2004), online on her Internet site.
[3] Annex II.
[4] Annex I referred to
above.
[5] Annex III.
[6] At present,
respectively the Minister for Work, Social Relations and Solidarity, the
Minister for the Interior, the Overseas Territories
and Territorial
Collectivities, and the Minister for Foreign and European Affairs.
[7] Article 26 of the Law
supplementing article L. 112(1) of the Social Welfare Code.
[8] See France’s last
periodic report (para. 13 et seq).
[9] Article 7 of the Law
for the reform of child protection amending the last paragraph of the first
article of the Law of 6 March 2000
referred to above: “Complaints may
be made to (the Ombudsman) by members of the families of minors, by the medical
and social services, and by
approved associations (associations reconnues
d’intérêt publique) which defend children’s rights. In
addition,
the Children’s Ombudsman may take up cases which appear to him
to call into question the interests of the child when referred
to him by persons
or associations not included in the categories already mentioned.
Members of the Parliament may refer to the Ombudsman a question within his
competence which appears to them to merit his intervention.
On a request by one
of the six permanent committees of their assembly, the President of the Senate
and the President of the National
Assembly may also transmit to the Ombudsman
any request which has been submitted to their assembly.”
[10] Created by Decree
No. 98-646 of 28 July 1998, the Taskforce consists of policy officers who
for the most part are made available
to it by their ministry of origin (Justice,
National Education, Health, Social Affairs etc.). The Taskforce now comes under
the Ministry
for Work, Social Relations and Solidarity (see Decree
No. 2007-1000 of 31 May 2007 concerning the functions of this
Ministry).
[11] Circular
DIF/DGAS/2B/DESCO/DIV/DPM/2006/65 of 13 February 2006 on networks for hearing,
supporting and assisting parents (REAAP).
[12] Bringing together in
particular the social ministries and the ministry responsible for education.
[13] Family Allowances
Funds, the National Agency for Social Cohesion and Equality of Opportunity, MSA
etc.
[14] In the sense of
children under the age of six.
[15] Net migration in
2006: 93,600.
[16] The sum of the rates
of fecundity according to age observed in a given year.
[17] Article
16(4) of the Civil Code: “No-one shall damage the integrity of
the human species.
Any eugenic practice directed towards organizing the selection of human
beings shall be prohibited.
Any activity, the aim of which is to bring about the birth of a child who
is genetically identical to any other person, living or
dead, shall be
prohibited.
Without prejudice to research directed towards the prevention and
treatment of genetic illness, no change may be brought about to
the characters
of the genetic code with the aim of changing the descendance of any
person”.
[18] Articles 214(1) to
215(4) of the Criminal Code
[19] Article L.
511(18)(1) of the Criminal Code, repeated at article L. 2163(5) of the Public
Health Code.
[20] A State public
administrative establishment, under the authority of the Minister of Health.
[21] Grandparents, uncles
or aunts, first cousins, partners of the mother or father of the recipient and
any person who can show proof
that they have lived with the recipient for at
least two years.
[22] The statistics
available do not allow the number of minors affected by these measures to be
identified.
[23] Article 9 of the Law
introduces new provisions into the Code for Social Action and the Family
(articles L. 141(1) and L. 141(2)).
[24] Article L. 112(13)
provides that: “Child protection shall have as its aim the prevention
of difficulties with which parents may be confronted in the exercise
of their
responsibilities for their child’s upbringing, to provide support to
families and to make arrangements, by methods
which are adapted to the needs of
minors, for taking them partly or wholly into care where circumstances so
require. It shall comprise
a set of interventions for this purpose, working in
the interests of minors and their parents. These measures may also be deployed
in the case of adults aged under 21 who are experiencing difficulties likely
gravely to compromise their equilibrium. Child protection
shall also have as its
aim the prevention of difficulties that may be encountered by minors temporarily
or permanently deprived of
the protection of their families and the securing of
care for them.”
[25] Annex V.
[26] The title given to
the Roundtable is that on the UNESCO website, which differs from that given in
the French original of the present
document.
[27] For example:
“ all children see that their rights are recognized...”,
“children have the right to family life”, “children
have the
right to access to information, to education, to care”, “children
have a right to be protected from violence”...
[28] The Convention is
dealt with in particular in the following subjects: “Children’s
Judge” – on criminal
law questions and in the course of training on
tutelary measures that may be ordered by the court; “District
Judge”:
in the context of guardianship for minors (with the application
of international conventions as a theme); “Family Judge”
–
with a component on various international conventions; “Criminal Courts
– Penalties” – when dealing
with the hearing by the Family
Judge of evidence from minors and the implications of foreign nationality for
family conflicts.
[29] Presentations on
theoretical and judicial subjects, exchanges of information and working
practices, the importance of cooperation
between receiving States and States of
origin etc.
[30] Article 25 of the
Law (article L.542(1) of the Code of Education).
[31] New article 144 of
the Civil Code: “Men and women may not contract marriage under 18
years of age”.
[32] Presumably referring
to cases where the husband has attained his majority but the wife remains a
minor.
[33] See Annex 6.
[34] Article 122-8 of the
Criminal Code provides that: “Minors capable of understanding shall be
criminally responsible for serious
crimes (crimes), major offences
(délits) and minor offences (contraventions) of which they
have been found guilty, subject to conditions set by a specific Law which shall
determine the measures of protection,
assistance, oversight and education to
which they may be subject.
This law shall also specify the tutelary sanctions, the application of which
may be ordered in the case of minors from the ages of
ten to 18, along with the
penalties to which minors aged from 13 to 18 may be sentenced, taking account of
the diminution of responsibility
which applies in proportion to their
age.”
[35] Paras.110 et
seq.
[36] See Chapter VIII,
section A below.
[37] Juge de
proximité, a new category of judge created in 2003 with the power to deal
with minor civil and criminal matters.
[38] See Chapter VIII
section C 3 below
[39] Created by Law
No. 89-487 of 10 July 1989 on prevention of the abuse of minors and child
protection.
[40] Decree of 8 March
2005, published in Journal Officiel No. 57 of 9 March 2005, p.
3929.
[41] Articles L. 512(2)
and D. 512(2) of the Social Security Code (see Part VI D).
[42] Decree
No. 2003-1164 of 8 December 2003.
[43] “If the
place in which the family is housed belongs to one of the spouses personally,
the judge may award it on a lease to the
partner who solely or jointly exercises
parental authority over one or more of their children while those children
habitually reside
in the dwelling and while their interests require
it...”.
[44] “In all
proceedings that concern him or her, a minor capable of discernment may, without
prejudice to the provisions governing
his or her intervention or consent, be
heard by the judge or, when his or her interests require it, the person
designated by the judge for this purpose.
This hearing shall be a right when the minor requests it. When the minor
refuses to be heard, the Judge shall assess whether this
refusal is well
founded. The minor may be heard alone or with a lawyer or a person of his or her
choosing. If this choice does not
appear to be in keeping with the interests
of the minor, the Judge may designate another person.
Hearing the minor shall not confer on him or her the status of a party to the
proceedings.
The Judge shall satisfy himself that the minor has been informed of his or
her right to be heard and to be assisted by a lawyer”.
[45] Court of Cassation,
First Civil Chamber, 25 April 2007
[46] Court of Cassation,
First Civil Chamber, 24 February 2006
[47] CNCDH, Study on
arrangements for interviewing child victims of abuse and/or of sexual violence
and the response of the Government, 22 September 2005.
[48] Inaugurated on 11
October 2005, the Taskforce for Victims is a permanent national body,
responsible to the Ministry of the Interior,
consisting of three police officers
and three gendarmes. Its main tasks are to ensure that complaints are followed
up, to share in
leadership of the network of Departmental representatives for
assistance to victims maintained by the Police and Gendarmerie and
to maintain
close links with victims’ associations and associations for aid to
victims.
[49] Laid down in
article 706(47) of the Code of Criminal Procedure.
[50] Article 706(5)2
inserted in the Code of Criminal Procedure by article 27 of the Law.
[51] Article 706(51)(1)
inserted in the Code of Criminal Procedure by article 26 of the Law.
[52] See note 37.
[53] The second
paragraph of article 20-II of the Order forbids the reopening of estates which
have already been settled by 1 July 2006:
“Children born before the entry
into force of this Order may not rely on it in relation to estates which have
already been
settled.”
[54] Law of 16 July 1949
on publications for young people.
[55] “The screening
of films shall be subject to obtaining certificates issued by the minister
responsible for the cinema.”
[56] BVA Opinion, impact
survey of 10 July 2006.
[57] “The
manufacture, transport, distribution, by whatever means and however supported,
of a message bearing a pornographic or violent
character, or a character
seriously violating human dignity, or the trafficking in such a message, is
punished by three years’
imprisonment and a fine of €75,000 where
the message may be seen or perceived by a minor.
Where the offences under the present article are committed through the
press or by broadcasting, the specific legal provisions governing
those matters
shall apply in determining the persons who are responsible.”
[58] France
Telecom/Wanadoo/Orange, AOL, Alice/Telecom Italia, 9 Cégétel, Club
Internet, Noos-Numéricable, Télé
2, Darty Box. Whilst it
has not ratified the agreement, Free has undertaken to abide by its terms.
[59] In particular,
article 35(I) of the Law amends article 32 paragraph 1 of Law No. 98-468 of
17 June 1998 dealing with the prevention
and punishment of sexual offences and
with the protection of minors, which now reads as follows : “When
a document which is the product of a process which can be decoded by electronic
means in either analog or digital mode presents
a danger to youth because of its
pornographic character, the item that contains it and each element of its
packaging must bear visibly,
legibly and indelibly the wording
“ supply to minors prohibited” (article 227(4) of the Criminal
Code). This wording
imposes a prohibition on offering, giving, renting or
selling the product concerned to minors.”
[60] According to
“l’Observatoire sociétal du téléphone
mobile” published by AFOM and TNS Sofres [a market research
institution] in August 2006.
[61] Bouygues Telecom,
Orange, SFR, Debitel, M6 Mobile, Omer Telecom and Universal Mobile.
[62] It is applicable in
the Wallis and Futuna Islands, the Departmental Collectivity of Mayotte and in
New Caledonia (in State secondary
teaching establishments for which the State
has responsibility).
[63] Youth Challenge
(défi jeunes) is a public interest grouping created in 1987 by the
Ministry for Youth and Sport. It is the
leading organ at a national level for
giving general support to youth initiatives. Its task is to prompt, assist,
support, develop
and publicize opportunities for young people aged between 15
and 28 to take initiatives in all areas of life through individual or
collective
projects.
[64] A federated
association founded in 1866 for the furtherance of education
[65] An association
founded in 1944 promoting personal development of the young through youth
clubs
[66] This arrangement
established by Law No. 95-125 of 8 February 1995 and its implementing
decree of 22 July 1996 was set out in France’s
second periodic report
(paras. 188 et seq).
[67] Decree
No. 2003-1166 of 2 December 2003, supplemented by an Order of 12 February
2004 and by circular DGAS/4 A No. 2004-376 of 30
July 2004.
[68] Articles 373(2)(1)
and 373-2-9 of the Civil Code amended by article 22II of the Law.
[69] Article 14 of the
Law amending article 375(7) of the Civil Code. Such measures were and still are
possible when the health, safety
or morals of a child are in danger and when the
conditions for his or her education are gravely compromised.
[70] Article 22 II of the
Law amending article 375(7) of the Civil Code. On the interests of the child:
see above, Part IIIB.
[71] Article 22 II of the
Law amending article 375(2) of the Civil Code.
[72] Article 22 II of the
Law amending article 375(7) of the Civil Code.
[73] Article 22 II of the
Law amending Article 375(7) of the Civil Code.
[74] Article 20 of the
Law inserting article 375(9)(1) into the Civil Code.
[75] Article 145(5) of
the Code of Criminal Procedure: “Where, during his questioning by the
investigating judge prior to the transfer of the case to the liberty and custody
judge, a person
makes it known that he has exclusive parental authority over a
minor of under sixteen years, who lives with him, his placement in
pre-trial
detention may not be ordered unless one of the services or people described in
article 8, paragraph 7, has first been mandated
to research and propose all
measures necessary to prevent the endangering of the minor's health, safety or
morals or the serious
compromising of his education.
The provisions of the present Article shall not apply in cases of felony,
misdemeanours committed against a minor, or in cases where
the obligations of
judicial supervision are not respected.”
[76] Article D. 401 of
the Code of Criminal Procedure.
[77] Monthly population
statistics for the imprisoned and detained in France published by the Ministry
of Justice.
[78] An occasional
daycare facility designed for children aged 0-6 with at least one non-working
parent
[79] Meaux,
Avignon-le-Pontet, Toulon-la-Farlède and Liancourt.
[80] Article 2 of the
association’s constitution.
[81]
“Intégration républicaine” is defined in a Law
of November 2003 as “knowledge of French language and the principles that
constitute the French
Republic”
[82] The Law of 4 July
2005 referred to above has been supplemented on this point by Decree
No. 2006-981 of 1 August 2006 on the approval
of persons wishing to
adopt a ward of the State or a foreign child, amending the Code for Social
Action and the Family.
[83] According to a
statistical inquiry into wards of State who have been the object of full
adoption (published by the Directorate General
for Social Action).
[84] 7,634 by
tribunaux de grande instance [regional courts with jurisdiction over a
range of civil and criminal matters] and 86 by the courts of appeal.
[85] 3,545 by
tribunaux de grande instance and 34 by the courts of appeal.
[86] New article 350 of
the Civil Code: “Parents who have not entertained with their child
relations necessary to maintain bonds of affection shall be deemed to have
obviously
taken no interest to their child. A mere withdrawal of consent to
adoption, a request for news or a wish expressed but not carried
out to take the
child back may not constitute a token of interest sufficient to constitute the
ground for automatic dismissal of
a petition for declaration of
abandonment.”
[87] Annex I.
[88] Directorate of
Justice and Civil Affairs, international division for mutual aid in civil and
commercial affairs.
[89] Implementing Decree
of 12 March 2004, fixing the location and jurisdiction of tribuneaux de
grande instance and courts of first instance competent to hear cases brought
on the basis of provisions in international and EU instruments dealing
with the
illicit international transfer of children, and amending the Code of Judicial
Organization.
[90] In consequence of
the Law of 19 July 1989 on the prevention of the abuse of minors and on child
protection.
[91] Annex VII.
[92] Articles 222(12) and
222(13).
[93] Article 14 of the
Law amending article 375 of the Civil Code.
[94] Source: DREES,
working document “Beneficiaries of social welfare services of the
départements in 2005”, No. 107 of March 2007 in
the series “STATISTIQUES”.
[95] Article 88 of Law
No. 2004-1484 on finances for 2005 dated 30 December 2004 – Article
200B of the General Tax Code.
[96] Articles L. 129(5)
and D. 129(1) of the Code of Employment.
[97] Article 98 of the
Law on finances for 2004 – Article 244 G of the General Tax Code; Decree
No. 2004-844 of 20 August 2004.
[98] A binding right for
those who meet basic qualifications including need and lawful residence on
French territory, and who fall within
certain priority categories, to be housed
by a social housing provider
[99] Annex VIII.
[100]
“Optional” in the sense that the individual chooses this
arrangement out of preference for compensation paid at a higher
rate but for a
shorter period
[101] See section D
below.
[102] Law
No. 2006-339 of 23 March 2006 for return to work and on the rights and
duties of beneficiaries of minimum social benefits and
Decree No. 2006-1753
of 23 December 2006.
[103] See below section
D.
[104] An occasional
daycare facility designed for children aged 0-6 with at least one non-working
parent
[105] Amending arts. R.
2324(16) to 47 of the Public Health Code.
[106] Codified in
Articles L. 227(4) ff and R. 227(1) et seq of the Code for Social Action
and the Family.
[107] Articles L.
421(1) et seq of the Code for Social Action and the Family and L. 773(1) et
seq of the Employment Code.
[108] Decree
No. 2005-1772 of 30 December 2005 extended the provisions of the Law by
reorganizing training.
[109] Articles L.
129(1) et seq of the Employment Code.
[110] See section D
below.
[111] See section D
below.
[112] A service
delivered at his or her home by a childcare assistant employed and monitored by
a local authority.
[113] Small
crèches with a maximum of 20 places in which parents take part in the
care of the children and in the running of the
association, alongside
professionals.
[114] Ministry of
National and Higher Education and Research, “Statistical References and
Elements for Teaching, Training and Research”,
first year pupils, August
2006.
[115] The
“branche famille” of the Social Services, consisting of a
network of local offices run by the national and local Family Allowances Funds
for the payment
of social benefits and allowances to families
[116] La maison
départementale des personnes handicapées, a centre in each
département responsible for providing care, information, support and
advice and for raising public awareness
of disablement
[117] Article L. 112(1) of
the Education Code, as amended by the Law of 11 February 2005 referred to above,
provides that “any child or adolescent with a disability or
incapacitating health problem shall be enrolled in the school or in one of the
establishments mentioned in article L. 351(1) which is closest to his or her
home, and this shall be his or her principal establishment”.
[118]
Enrolled in an establishment forming part of the national education service or
in a medical/educational or hospital establishment,
but not in higher education.
[119] Statistics from
the study published by DREES [Direction de la recherche, des études,
de l’évaluation et des statistiques] in March 2007
(No. 264).
[120] Judgement of 11
July 2007, M. et Mme Haemmerlin, No. 06-1579 and 06-2793.
[121] Opinion
No. 2003-24 of the Social and Economic Council, “Prevention and
Health”, 26 November 2003. Study by CNCDH on health
preservation, access to treatment and human rights of 19 January 2006.
Report of the Inspectorate General of Social Action
on mother and child
protection, presented to the ministers responsible for health and the family in
November 2006.
[122] Article L. 123(1)
of the Code for Social Action and the Family, amended by II in the first article
of the Law of 5 March 2007 referred
to above.
[123] Article L.
2112(2) of the Public Health Code, amended by IV in the first article of the Law
of 5 March 2007 referred to above.
[124] First two
paragraphs of article L. 2112(1) first paragraph of article L. 2112(2) amended
by article 1, III and IV, of the Law of
5 March 2007 referred to above.
[125] This obligation
appears in Article L. 541(1) of the Education Code.
[126] See Decree
No. 2005-1145 of 9 September 2005 and its implementing circular.
[127] Annex IX.
[128] A national
foundation for the welfare of children and the elderly in hospital.
[129] Article L.3342
(1) of the Public Health Code.
[130] his ban affects
alcoholic drinks in the third to the fifth groups. Consequently, selling or
giving wines, beers, perry, hydromel,
unfortified sweet wines, blackcurrant
liqueur and fermented juices up to 3 degrees of alcohol is permitted.
[131] Article L.3342(2)
of the Public Health Code.
[132] Article L.3353(4)
of the Public Health Code.
[133] Article L.3342(3)
of the Public Health Code. From the age of 13, minors may be admitted to drinks
outlets in the first category,
i.e. those that do not serve alcoholic drinks.
[134] Article L.3336(4)
of the Public Health Code. Except for minors aged from 16 to 18 under a
contrat en alternance ["sandwich course" alternating a training course or
courses with learning on the job], subject to certain conditions.
[135] Articles
L.3323(2) and R.3323(2) of the Public Health Code.
[136] Drinks flavoured
and sweetened to mask the bitter taste of alcohol and appeal to the young.
[137] By the
application of Law No. 2004-806 of 9 August 2004 on public health
policy.
[138] First section of
Volume V of the first part of the Public Health code.
[139] Article 5 of Law
No. 76-448 of 24 May 1976 and Article 568 of the General Tax Code.
[140] Article 3(1) of
the Law, codified in Article L.3511(2)(1) of the Public Health Code.
[141] Article L.
3512(2) of the Public Health Code.
[142] The Law applies
equally to tobacco products and tobacco ingredients as defined in
article L. 3511(1) of the Public Health Code.
[143] Article L.
3511(3) of the Public Health Code.
[144] Article L.3511(6)
of the Public Health Code, amended by article 7 of the above-mentioned Law of
31 July 2003.
[145] Article L. 3512(2)
of the Public Health Code.
[146] Article L.3511(2)
of the Public Health Code.
[147] Article L.3511(9)
of the Public Health Code.
[148] Article L.
5134(1)of the Public Health Code, consequential on Law No. 2000-1209
of 13 December 2000 on emergency contraception,
amended by Law No. 2001-588
of 4 July 2001 and Law No. 2004-806 of 9 August 2004, Article D. 5134(1)
et seq originating from the implementing Decrees.
[149] Study published
by DREES, prepared in May 2006, on suicides and attempted suicides in France (on
the basis of data for 2003).
[150] See Article L.
512(2) of the Social Security Code amended by Article 89 of Law
No. 2005-1579 on finance for social security in 2006
dated 19 December. The
documents to be produced are listed in Article D. 512(2) of the Code.
[151] Article L. 531(1)
et seq of the Social Security Code.
[152] Six categories
are provided for on a range extending from €89.79 to €999.83.
[153] Dispositifs
relais: classes and workshops provided in another location for pupils who
seriously and persistently reject school and the learning process.
[154] Mission
générale d’inclusion: a taskforce operating under the
aegis of the Ministry of Education responsible for preventing the exclusion of
pupils from education
and for supporting children who have completed compulsory
school education without gaining qualifications.
[155] Figures provided
by the Ministry of Youth, Sport and the Voluntary Sector.
[156] Study by the
Centre d’Analyses Stratégiques in 2000
[157] While children
have fifteen weeks’ holiday, parents on average have only seven.
[158] Following the
demonstrations by young people which occurred in outer urban areas in
November 2005, a debate was instituted by the
Town of Dunkirk from February
2006 onwards on means of achieving the integration of young people.
[159] The public
prosecutor has certain powers and functions, in addition to handling criminal
prosecutions, including providing the court
in civil cases with objective advice
on the requirements of the law and how they should apply in particular cases.
Here, the prosecutor,
and his office at para 549, appear to be operating in this
civil role and not as prosecutor.
[160]I ntroduced by
article 31 of the Law of 24 July 2006 on immigration and integration.
[161] Introduced by
article 9 of the Law of 24 July 2006 on immigration and integration.
[162] These figures
include both minors being supervised by the children’s judge and those
supervised under administrative detention
arrangements.
[163]
This involves educational monitoring and/or financial support for young adults
under the age of 21.
[164] See para. 526
above.
[165] Decree
No. 2003-220 of 7 March 2003 on the publication of the agreement, Official
Journal of the French Republic for 14 March 2003.
[166] L’agence
nationale de l’accueil des étrangers et des migrations, a State
entity providing certain services in relation to the reception of foreigners
lawfully present in France and to outward migrants
from France.
[167] A co-ordinating
body set up by French NGOs for overseas development.
[168] Belgium,
Bulgaria, Spain, France, Hungary, Norway, the Netherlands, Romania, the United
Kingdom and Switzerland.
[169] Article 41(1) of
the Code of Criminal Procedure: the alternatives recently introduced are an
awareness-raising course on road safety
(the Law of 12 June 2003), a course on
citizenship (the Law of 9 March 2004), an order for medical treatment (Law of 5
March 2005)
and a course for awareness-raising on the dangers of the use of
drugs (Law of 5 March 2007).
[170] Annex X.
[171] It may, in
exceptional cases, be extended by the same amount.
[172] See section III C
above.
[173] See note i
above.
[174] Article 55 of the
Law.
[175] Chapter VII of
the Law amending Order No. 45-174 of 2 February 1945 on young
offenders.
[176] Article 59 of the
Law.
[177]
Aménagement de peine, allowing for a penalty to be modified after
it is pronounced to reflect a range of circumstances including good
behaviour.
[178] Article 62 of the
Law.
[179] The youth court
may therefore decide from the outset, as soon as judgement is given, on the
following modifications: conditional
release, external placement,
semi-custodial treatment, electronic tagging and the suspension of the sentence
or arrangements for
it to be served in tranches.
[180] Decision
No. 2007-554 DC – 9 August 2007.
[181] Article 21 of the
Law.
[182] At Meyzieu in the
Rhône-Alpes region and Lavaur in the Midi-Pyrénées
region.
[183] Recommendation of
the Committee of Ministers of the Council of Europe of 11 January 2006
(rec 2006 (2)).
[184] Decrees
No. 2007-48 and 2007-749 and of 9 May 2007 (which came into force on 1 June
2007) on the detention of minors and Decree
No. 2007-814 of 11 May 2007 on
the disciplinary regime for detained minors.
[185] Young adults,
however, have a separate
status.
[186] The
mobile unit for consultations and treatment, the regional service for
psychological medicine, the prison service the Judicial
Protection Service for
Young People and the National Education Service.
[187] Created by Decree
No. 2004-612 of 24 June 2004, it is the successor of the interministerial
unit for combating delinquency by vagrants,
created on 9 May 1997.
[188]
Para. 5 of article 227(2)3 of the Criminal Code is now worded: “the
act of habitually consulting an online service for communication to the public
making available such an image or representation
or the possession of such an
image or representation by any means whatever shall be punishable by two
years’ imprisonment and
a fine of €30,000”. (Article
29 of the Law).
[189] Offences provided
for in articles 225(4)(1) to 225(4)(9), 225(5) to 225(12) and 225(12)(1) to
225(12)(4) of the Criminal Code.
[190] Article 35 II
inserts an Article 227(22)(1), under the terms of which: “the act by
an adult of sexually propositioning a minor aged less than fifteen or a person
representing himself or herself as
such using a means of electronic
communication shall be punishable by two years’ imprisonment and a fine
of €30,000”. These penalties increase to five years’
imprisonment and a fine of €75,000 when the proposition is followed by a
meeting.
[191] Article 44 inserts an
article 222(33)(3), under the terms of which: “The act of knowingly
recording, by any means whatever, and on any medium whatever, images relating to
the commission of these
offences shall constitute an act of complicity in the
offences of voluntarily impugning the integrity of the person provided for
by
articles 222(1) to 222(14)(1) and 222(2)3 to 222(31)and shall be punishable
by the penalties provided for by those articles.
The act of distributing such images shall be punishable by five years’
imprisonment and a fine of €75,000.
The
present article shall not apply when the recording or distribution results from
the normal conduct of a profession the aim of
which is to inform the public or
is carried out for the purposes of providing evidence in legal
proceedings”.
[192] Offences provided
for at articles 227(18) to 227(21) of the Criminal Code introduced by article
48 II of the Law.
[193] Article 36 of the
Law.
[194] Article 40 of the
Law.
[195] Article 36 of the
Law adding a new article 433-18-1 to the Criminal Code.
[196] The national
railway company.
[197] The public
transport authority for Paris and the surrounding area.
[198] The State
Prosecutor may dispense with the need for this agreement if it is impossible to
obtain and if the “Abduction Alert”
could be a decisive factor in
providing help for the victim.
[199] The means of
distribution are the television networks the radio stations, message displays
on motorways and certain other trunk
routes, SNCF, RATP,
INAVEM (which relays the alert message to almost 160 victims’ and
victim support associations, and Agence France Presse.
[200] The objective of
the INAVEM network is to promote both help and assistance for victims and
mediation techniques. It provides training for paid and volunteer
staff of
associations and to the professionals (lawyers, doctors, social workers etc)
working within them.
[201] A participant in
the improvement of arrangements for child protection, this foundation directs
its operations at professionals,
among others, by offering specialized
programmes to allow them to complete their training and to identify abusive
situations. The
Foundation provides protection for the most vulnerable children
by supporting their parents and families when in difficulty; it takes
part also
in the strengthening of the activities of professionals on the ground.
[202] In 2005,
“SOS Missing Children” received funding of €175, 025
from the State and €72,000 from the Children’s Foundation’s
own resources (including
a European grant).
[203] The Taskforce
replaced the Interministerial Taskforce for Combating Sects.
[204] Section V of the
Law.
[205] Various work
programmes and documents on diversion into involvement with sects in the field
of health establish the availability
in France of around two hundred
non-conventional therapies.
[206] Loi
ordinaire – a law made by the Parliament in the exercise of a function
reserved to it under the Constitution.
[207] French
Constitution as translated on the National Assembly
website.
a In international forums, indigenous
representative organizations insist on being referred to as peoples. But the
French constitutional
judge has decided, in a judgement of 9 May 1991, that the
expression [2](Corsican) People, as a
component of the French people, was unconstitutional”; there can be
only one French People in France, by reason of the principle of equality and
unity. The concept of “People”
implies in effect that several exist
within the State, and in so doing conflicts with the principle of unity. It can
also be taken
as meaning that rights are conferred on a group on a footing which
relates to a community, rather than being territorially-based.
It also follows
from Article 1of the Constitution that the Republic cannot accept the existence
within itself the legal existence of any “indigenous” category.
b Personal status is a concept that describes a
situation in which a person is personally subject to local law and not to
ordinary
law. In practical terms, this dual arrangement means the existence of
two kinds of civil status.
c Judgement No. 0050011P.
d Hoot Ma Whaap, Paici Camuki, Ajie Aro,
Xaracùù, Djubéa-Kaponé, Iaai, Drehu,
Nengoné
e [2]This
Law applies to provisions relating to the status and capacity of persons, to
matrimonial regimes and to questions regarding inheritance
and gifts which form
part of the civil status under the general law referred to in Article 75 of the
Constitution.”
f Second civil chamber, 6 February 1991 (Bull.1991,
II No. 44 and Dalloz 199[2], 93) and
first civil chamber, 13 October 1992 (Bull.1992, I No. 248).
g Articles 81 et
8[2] of the Constitution of 27 October 1946
and article 75 of the Constitution of 4 October 1958, which provides that:
“Citizens of the Republic who do not have civil status under the
general law, which is the only such status specified in Article
34, shall retain
their personal civil status provided that they have not renounced it”. The
phrase “the only such status
specified in Article 34” is a
cross-reference to the list of matters to be determined by statute, among which
are personal status and capacity, matrimonial
and property regimes,
inheritance and civil rights.
h Areas of competence listed in Article 59 paragraph
[2] of Law No. 2001-616 of 11 July 2001
on Mayotte.
i These marriages had however been celebrated in
the presence of the registrar since Order
No. [20]00-219 of 8 March 2000 on civil
status on Mayotte (Article 16).
j The islands of Saint-Martin and
Saint-Barthélemy, which were attached to the département of
Guadeloupe, will become full overseas collectivises on 15 July
[20]07.
k Circular No. [20]01-012 of 12.01.2001 in Journal Officiel, Special Edition No. 1 of 25 January 2001.l Circular No. [20]01-013 of 12.01.2001.m (Circular No. [20]01-014 of 12.01.2001).n
In French law, two forms of adoption are possible: simple adoption (art. 360
et seq of the civil code) and full adoption (art. 343 et seq of
the civil code). While the conditions governing whether a child may be adopted
are the same in both cases, the effects differ.
In cases of simple adoption, the
child retains its link with its original family, whereas in cases of full
adoption, the child acquires
a new line of filiation replacing its original line
of filiation. In both cases, any person seeking to adopt must, prior to
adoption,
obtain the approval of the
children[2]s social welfare service of his
or her departmental General Council. The children’s social welfare service
examines the application
for approval, carrying out social welfare checks and
psychological tests. Attached to the approval is a notice describing the
adopter’s
proposal and indicating the age and characteristics of the child
that person wishes to adopt. Once they have that approval, potential
adopters
may approach the French Adoption Agency.
o "In Melanesian society, adoption is
a customary gesture, between families, the gift of a child being used to seal
alliances. These
children who are entrusted to another family, often the
mother[2]s own family, may be
‘given’ at a relatively late age, sometimes when they are between
seven and eight years old. There
are also cases in which these children
‘given’ officially under customary law are not well treated by their
new family
and fall victim to sexual abuse."
p The result for that collectivity is
insignificant given the very low number of prosecutions; for instance,
in [20]05, the figure was 21% for 15
minors in total compared to 24 minors in 2006.
q Articles D. 514 to D. 519 of the code of
criminal procedure.
a Article 1 since the constitutional revision of 4
August 1995: "France shall be an indivisible, secular, democratic and social
Republic. It shall guarantee the equality before the law of all its
citizens
without distinction as to origin, race or religion. It shall respect all
faiths[2].
b Created by the law of 30 December
[20]04 and officially inaugurated on 23 June
2005, this independent administrative authority has, in addition to its role of
informing
the public, the primary tasks of dealing with cases of discrimination
and promoting equality. It identifies and disseminates good
practice and
experience in combating discrimination in all sectors of activity and issues
opinions and recommendations, to the government,
parliament and the public
authorities to combat discrimination, improve the texts of legislation and
advance the principle of equality
and the state of French law in that area. It
details its activities in an annual report to the President of the Republic, the
Prime
Minister and Parliament. It presented its first annual report on 5 May
2006.
a These contracts replaced Qualifications Contracts
under the Interprofessional Agreement on Lifelong Learning
of [20]03.
b The allowance, of €300, is a one-off payment
to grant recipients drawing their first accommodation allowance (almost 80,000
students), at whatever university level they are studying.
c These placements last three months, at the end of
which the business commits itself to take the applicant on under a permanent
contract.
They include training on adaptation to working life. The job
applicant, who is paid as a trainee, is supported by a tutor from within
the
business.
[208]
This credit is limited to €1,000 and is available from 1 July 2005
until 31 December 2007. The list of eligible professions
is based on objective
criteria (the size of the profession and the ratio of supply to demand in jobs).
It includes agriculture, building
and public works, mechanical engineering and
metalwork, commerce and the food and hotel and catering industries.
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