Council of State (“Conseil d’État”), Litigation Section, Ms. Cinar, 22 September 1997, No. 161364
Constitution of France
If the Constitutional Council, at the request of the President of the Republic, the Prime Minister, the President of one or the other assembly or by sixty deputies or sixty senators, has declared that an international commitment contains a clause contrary to the Constitution, authorization to ratify or approve the international commitment in question may be given only after amendment of the Constitution.
Duly ratified or approved treaties or agreements shall, upon publication, prevail over acts of Parliament, subject, in regard to each agreement or treaty, to its application by the other party.
Direct resolution of a dispute on the basis of international law
A Turkish national legally domiciled in France/ Entry of her child into France without administrative authorization/ Administrative decision of expulsion / Best interest of the child/ Direct solution of a dispute on the basis of international law
A citizen of Turkey, Ms Cinar, having obtained a resident’s permit in France following a family reunification with her parents, brought her own child, then four years old, to France without requesting prior authorization for the latter’s residence. Her later request for a residence permit was rejected by the Prefect for violation of the rules for entry into France, and the Prefect ordered the expulsion of the young child on that basis.
Ms Cinar challenged the Prefect’s decision, which was confirmed by the administrative tribunal of first instance. Based on the Convention on the Rights of the Child ratified by France, Ms Cinar appealed that decision and that appeal finally reached the Council of State.
In order to resolve the dispute, the Council of State considered first of all the applicability of an international convention to the administrative authorities and the possibility of invoking it in an appeal before the administrative tribunals. The Council of State decided the following:
“Taking into account that in the terms of Article 3(1) of the Convention on the Rights of the Child of 26 January 1990, published by law on 8 October 1990, ‘in all decisions concerning children, whether originated by public or private institutions of social protection, courts, administrative authorities or legislative bodies, the child’s best interest shall be the essential consideration’. As a result of these stipulations, which can be usefully invoked in support of a claim for ultra vires action (“recours pour excès de pouvoir”), the administrative authority, in the exercise of its power, must pay primary attention to the best interest of the child in all decisions concerning them.”
That point having been raised, the Council of State based its decision directly on the UN Convention on Rights of the Child in order to judge the validity of the Prefect’s decision:
“The records for this case showed that neither the child’s father, whom she did not know and who had never provided any aid for her education, nor any other close family member could receive the child in Turkey. Under those conditions, the Prefect’s decision to expel the young Tolga to Turkey and to separate her, even temporarily, from her mother, undermined the child’s best interest and should be considered as contrary to Article 3(1) of the Convention on the Rights of the Child.”
On the basis of violation of Article 3(1) of the Convention on the Rights of the Child, the French Council of State overturned the decision of the court of first instance and annulled the Prefect’s decision which was the reason for the appeal.