French legislation knows two different kinds of adoptions:
- One where the blood parent is deprived of any right on his child, where all links between the child and his biological family end;
- One where, in the contrary, the child meets two families: his biological one and his adoptive one.
Both have rights on the child, custody and authority to help him/her grow up and become adult.
The latter adoption is often used for step children, or where one child was raised in the absence of his biological parent (car or plane accident, disease…) by uncles and aunt for instance.
When stepparents are taking full day-to-day responsibility for stepchildren they may want to make their relationship with these children more formal and this is where the adoption comes.
English Law knows only one kind of adoption. We call it under French Law : ‘full adoption’ !
Several conditions must be fulfilled in the UK – Adoption and Children Act 2002:
The Child must :
- be under the age of 18 when the adoption application is made
- not be (or have never been) married or in a civil partnership
Both birth parents normally have to consent to the adoption, unless:
- they can’t be found
- they’re incapable of giving consent, eg due to a mental disability
- the child would be put at risk if he/she wasn’t adopted
The adoption assessment in England is very similar to that in France:
An assessment is used to help a court decide if you can adopt the child (rather than being sent to an independent adoption panel).
The court will ask your local council to provide a report on your partner, the child and the other birth parent.
If granted, the adoption court order gives you parental responsibility for the child – along with your spouse or partner.
International conflict of law:
Pursuant to UK law, one must follow the adoption laws of the country of residency of the adopter.
You must follow UK adoption law if you’re normally resident in the UK.
You may have to give a sworn statement in front of a solicitor that you’re no longer habitually resident in the UK, the Isle of Man or the Channel Islands if the country asks for a ‘no objection’ letter from the UK government.
You must send this statement either to the Intercountry Adoption Team at the Department of Education or the nearest British embassy.
Also, the guidance for adoption provided by the British government is clearly recognized by the convention on adoption made under the Hague convention of 29 May 1993. The UK implemented that convention on 1 June 2003.
How can somebody adopt a stepchild? Is a British citizen entitled to adoption in France? What are the limits?
Article 370-3 of the French Civil code foresees whichever the law is applicable that adoption requires the consent of the legal representative of the child. Consent must be free, without consideration and with full understanding of its consequences.
This rule is inspired from the historic case of PISTRE in January 1990 and from article 4 of the International Hague Convention on adoption.
French Law also provides that the conditions of adoption are normally subject to the National Law of the adopter or, in case of adoption by spouses, with regard of the law governing the effects of their union.
The adoption cannot be pronounced if the national law of one of the spouses bans it.
Legally speaking the “adoption simple” is not forbidden in the UK but unknown! Does that mean a British resident in France can adopt “simply” his/ her stepchild? Would that be recognized and would that have any effect in France?
If the adopted child is under 18, the French jurisdiction would certainly accept to pronounce the adoption whereas if the child is over 18, the French jurisdiction would certainly refuse it because of the rules applicable in the UK.
When the adoption is ordered it will have full effect in France and of course and in the UK because of the implementation of the Hague convention in UK Law as evoked here above.
Be careful with Adult adoption which is permitted in France contrary to England. Although you have legally adopted a child abroad according to the rules of the state of your residency, England might not consider that adoption as valid.
What are the regular effects of an adoption order?
a) Legally speaking
The Court order of adoption takes away parental responsibility from:
- the child’s other birth parent
- anyone else who has parental responsibility for the child
b) From a tax point of view:
Transmissions that occur between adoptive parents and the adopted person are subject to normal taxation in the direct line for succession rules, (progressive rate after application of a personal allowance of € 100.000,00).
What are the effects of a ‘simple adoption’ order?
a) Legally speaking
The Court order of adoption does not take away parental responsibility from the child’s other birth parent but can multiply the number of guardians in the best interest of the child.
Simple adoption creates a maintenance obligation between adopter and adoptee and vice versa.
The biological parents of the adopted child are not bound by this obligation unless the adoptee proves that he cannot obtain relief of his adoptive parents.
The obligation of the adopted child to his biological parents ceases if he was admitted as a ward of the state and supported by welfare.
b) from a tax point of view:
Transfer of assets that occur between adoptive parents and adopted follow are levied at the prescribed tariff for the link natural kinship between them or, where applicable, the tariff for transmissions between non-relatives.
Article 786 of the French CGI provides for a number of exceptions to this principle, so that transmissions thus referred to are taxed according to the tax regime applicable to lineal transmissions.
It is especially the case when somebody adopt his/her stepchild where stamp duties are the same as the ones applicable in the direct line.
Examples :
Mr Smith, British Citizen, is residing in Dordogne (France) where he married Hilary in 2007 who is the widow of a UK soldier. Hilary had one child from her previous marriage named Winston.
Mr. Smith is willing to adopt his stepchild who agrees with that. Is that adoption possible?
According with article 370-3 of the French civil code, the adoption is subject to the British rules (National law of the adopter).
We know that UK law prohibits adoption between adults and only knows ‘full adoption’.
That should imply whether Mr Smith is still willing to continue the adoption process that he will have to adopt his stepchild before he turns18 and in ‘full adoption’ (with the consequence of wiping out his stepchild natural/ biological kinship).
When a stepparent adopts their partner’s child it ends the legal relationship between that child and their other natural parent and that wider family network (grandparents and other relatives).
Sometimes that makes the child feel that they have to choose between different adults and later may blame you or your partner.
The child is losing all maintenance and inheritance rights too.
It is likely the French court would accept a ‘simple adoption’ (see case 1 infra) yet the British court does not know that type of adoption for the reason seen aboved.
