The delegation of parental authority is a legal measure enabling one or more parents to transfer all or part of the exercise of their rights and duties with regard to their child to a third party, in certain specific situations and under the supervision of a judge.
Often misunderstood by the general public, it responds to the need to protect the child’s interests when parents are no longer able to fully assume their parental role.
This mechanism has undergone significant changes thanks to recent reforms, notably the laws of March 18, 2024 and February 19, 2024, and a wealth of case law that has clarified its contours.
1. What is the delegation of parental authority?
Delegation of parental authority involves entrusting a third party (family member, trusted relative, approved institution or child welfare service) with all or part of the rights and duties that the law assigns to parents over their minor child.
Delegation may be :
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- Total: the delegate takes all important and day-to-day decisions concerning the child (education, health, housing, etc.);
- Partial: only certain aspects (e.g. schooling or health) are transferred to the delegatee.
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2. Who can request delegation of parental authority?
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Voluntary delegation
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Parents exercising parental authority (together or separately) may apply to the family court judge for the delegation of parental authority when they encounter difficulties preventing them from fulfilling their role.
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Mandatory delegation
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In certain cases, delegation may be imposed by the judge, in particular :
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- manifest disinterest on the part of the parents ;
- parents unable to exercise all or part of their parental authority (illness, incarceration, etc.);
- prosecution or conviction of a parent for a serious crime.
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In addition, a family member, the person or institution that has taken in the child, or the public prosecutor (in certain serious cases), can also apply to the judge for delegation.
3. Who can be appointed delegate?
The delegate or delegates are chosen by the parents or by the judge, depending on the case. They may be :
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- a family member (grandparent, uncle, aunt, etc.) ;
- a trustworthy relative (for example, the parent’s partner);
- an approved childcare facility;
- the child welfare service.
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The judge systematically checks that the delegate presents all the necessary guarantees for the child’s welfare, and can refuse delegation if he or she considers this not to be the case.
The judge may not impose another delegate than the one proposed, except in the case of compulsory delegation.
4. Procedure for delegating parental authority
Delegation can only result from a decision by the family affairs judge in the minor’s place of residence.
It is made at the joint or separate request of the parents, or at the request of an authorized third party.
At the hearing, the judge hears all the parties concerned, including the public prosecutor, and may order various investigations (social inquiry, psychological expertise, etc.) to ensure that the delegation is in the child’s best interests.
5. Effects of delegation
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Total delegation
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The delegate exercises all the attributes of parental authority in place of the parents, with the exception of the right to consent to the adoption of the child, which remains with the parents.
The delegate may be called upon to make major decisions, such as consenting to the marriage or emancipation of the minor, subject to the terms set out in the judgment.
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Partial delegation or sharing
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Delegation may concern only certain rights or duties (for example, health or education), with the parent retaining the remainder of parental authority.
Sharing is not a « distributive » sharing but a joint exercise, requiring the agreement of all holders of parental authority and a decision by the judge.
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Parents retain their rights and duties
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Even in the event of delegation, parents remain bound by the obligation to maintain the child, unless the court decides otherwise.
They retain the right to consent to the adoption of their child, a right that cannot be delegated.
6. Termination and return of delegation
Delegation is never definitive. The parents may ask to regain the exercise of their parental authority if new circumstances justify it, following a decision by the family affairs judge.
If restitution is granted, they may be required to reimburse all or part of the expenses incurred by the delegate for the child’s upkeep.
7. The child’s best interests at the heart of the decision
The judge’s decision is always based on the child’s best interests, which are the compass for any decision concerning parental authority.
In particular, the judge assesses :
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- the concrete circumstances of the family ;
- the child’s emotional ties with the delegate ;
- the delegatee’s willingness and ability to care for the child;
- the parents’ willingness and ability to resume or retain their rights.
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Conclusion
The delegation of parental authority is an appropriate tool for protecting the child’s interests when the parents can no longer assume their mission alone.
It requires a decision by the family judge, who assesses each situation on a case-by-case basis, always taking care to preserve the minor’s balance and stability.
If you have any questions or wish to delegate, please do not hesitate to make an appointment.