In many domestic violence cases, children suffer from the abuser’s aggression directly or indirectly by witnessing violence between adults. Different legal regulations are to be applied since the protection of child rights requires a different and more specific approach.
States have an obligation to take legislative or other measures to ensure that due account is taken of the rights and needs of child witnesses of domestic violence.
Until recently, in France, when a child was exposed to domestic violence at home but without being the target of the violence, they were not considered as victims but only as witnesses. However, since 2021, the law has changed and children who witness domestic violence are now considered as co-victims of domestic violence.
Therefore, a child victim of domestic violence now has the same right to obtain state protection, hold the perpetrator responsible for their actions and to receive compensation similarly to an adult victim of domestic violence. However, a child must be represented (e.g., for signing documents and submitting applications) by their legal guardian. If the child’s legal guardian hesitates or refuses to submit necessary applications on the child’s behalf, the public prosecutor or the investigating judge (juge d’instruction) can appoint an “ad hoc administrator” which will take on the role of the legal guardian. This “ad hoc administrator” will be in charge of ensuring the protection of the child’s interests and if necessary, exercise the child’s rights as civil party on his or her behalf. This administrator is appointed among the child’s relatives or from a list of authorised persons determined by decree.
Removal from the family or from the parent abuser
In a situation where children are endangered by their legal representatives – the parents or a guardian, and thus there is no one representing the child’s rights and interests against the abuser, the child may be separated from the family if it is impossible to eliminate the risk for the child while it stays in the family. The law states that children should stay in their usual and home environment as much as possible and should be separated from their family only as a last resort solution. If the health or safety of the child is endangered, educational assistance measures may be ordered by the court, which can include, if necessary, separating the child from one or both of his parents. The judge can decide to entrust the child to:
- The other parent
- Another member of the family or a trustworthy third party
- A departmental child welfare service (service départemental d’aide sociale à l’enfance)
- A service or establishment authorised to receive minors on a daily basis
- A regular or specialised health or education service or establishment
These educational assistance measures are normally taken under the responsibility of the Children’s judge, however in case of emergency, the public prosecutor can also take such measures.
Withdrawal of child custody
If the child’s parents or a guardian endangers the life, health and freedom of the child, then the police are obliged to report it immediately to the public prosecutor. French law states that in cases of domestic violence and before initiating criminal proceedings, the public prosecutor must check whether the violence has been committed in the presence of a child. If this is the case, the prosecutor must include in the legal file all the information that will enable the court to assess the extent of the harm suffered by the child and to make a decision on the total or partial withdrawal of child custody or its exercise.
The public prosecutor cannot decide on the suspension or removal of child custody, only the court can. However, if one of the parent (the abuser) is prosecuted or convicted, even not definitely, for a crime committed against the other parent (such as homicide), the exercise of child custody is automatically suspended for the abuser. This means that the parent cannot exercise their parental rights (accomodation, visits etc.), however it does not mean that they lose the child custody, it is only a suspension of the exercise of custody. This suspension is pronounced by the public prosecutor during the investigations and the prosecutor must refer the matter to the judge within 8 days. This suspension lasts until the judge’s decision to confirm or overturn the suspension, and for a maximum period of 6 months.
The court is authorized to issue a decision on a termination of the rights of child custody of the parent or both parents. The termination of child custody can be total or partial. The court can decide to order only the withdrawal of the exercise of child custody.
An order to withdraw child custody by the judge can happen in two situations:
- Child custody can be removed by a criminal court for the parent who is convicted as perpetrator or accomplice of a criminal offence committed against their child or against the other parent.
- Child custody can be removed by a civil court, regardless of any criminal conviction, for the parent who manifestly endangers the child’s safety, health or morals (e.g., through excessive alcohol consumption, criminal behaviour, misconduct, violence against the child or violence against the other parent etc.).
Assistance to abuse victims
A child victim of domestic violence shall be provided with emergency assistance free of charge, in order for the child to regain their physical and mental health and to reintegrate into society. Such medical treatment and reintegration shall take place in an environment favourable to the health, self-esteem and honour of the child, carefully guarding the child’s intimate secrets. General protection rules on the rights of a child victim shall be applied during any administrative, civil or criminal procedures.
It is prohibited for a child victim to:
- be left alone, except in cases when the child himself or herself so wishes and this choice is considered appropriate by a psychologist who has undergone special preparation for work with children who have suffered from violence
- be left without psychological or other form of care
- be confronted by the possible perpetrator of the violence (illegal act) while the child is not sufficiently prepared psychologically for such a confrontation
- be subjected to the use of any compulsory measures in order to obtain information or for any other purpose
There are several support and care systems put in place in France for children and mothers who are victims of domestic violence:
- Pediatric reception units for children at risk (Unités d’Accueil Pédiatrique pour Enfants en Danger): These are hospital units specialised in receiving children and teenagers who are victims or suspected victims of violence. These units are made up of pediatricians, psychologists, nurses, social workers etc. They can provide minors with advice, a diagnosis, and initial medical and psychological care. In the context of legal proceedings, UAPED enables child victims to be heard by the investigating authorities in appropriate conditions.
- In the long term, children who need psychological counselling can go to structures that provide medical and psychological care for children, such as “medical-psychological and pedagogical centres” (Centres medico-psycho-pédagogiques, CMPP). There are many CMPPS across France, you can find the nearest CMPP.
- Pregnant women and single mothers with children under the age of three are entitled to receive material and psychological support through a national system called “children’s social welfare service” (aide sociale à l’enfance). This service is also possible for minors who cannot remain in their usual living environment and need temporary accommodation and specialised care.
Criminal sanctions
The presence of a child at the time of domestic violence is an aggravating circumstance for the criminal offence committed by the abuser (physical violences, sexual assault, homicide etc.). Indeed, French Criminal Law states that for the offences of involuntary homicide and physical assaults, the sanctions are more severe when a child is present, and the offence is committed by the victim’s spouse or partner. Also, sexual offences such as rape and sexual harassment are punished more severely when committed in the presence of a child.
Child protection & Human rights
In cases where a child has become a victim of domestic violence, similar violations of human rights may occur as in the case of adult victims.
Where state authorities have failed to take appropriate protective measures specifically designed to protect a child, a violation of the right to private and family life may occur. For example, the removal of a child from a family or granting, without the necessary due diligence to the custody rights of the other parent.
There may be a violation of the right to a fair trial in cases where a child is involved in court proceedings related to domestic violence and the authorities have failed to ensure fair trial guarantees specifically designed to protect child victims.