The teenager set fires eighteen times, in public spaces, in Aubagne (Bouches-du-Rhône). Who should pay for the colossal damage when their parents are separated? The father or the mother? A question decided this Friday, June 28, 2024 by the Court of Cassation, which results in a change in case law.
In this case, the father considered that he could not be held responsible, because the child lived with his mother. The Court of Appeal initially agreed with him. And for good reason: until now, the jurisprudence of the Court of Cassation considered that only the parent with whom the court has determined the child’s residence can be ordered to repair the damage. In this case, in this case, the mother. Which is the case in more than 70% of separations. And even, the mother would be similarly implicated if the child had been with his father at the time of the offenses, for example during the exercise of visitation and accommodation rights.
New case law
Friday, the Court of Cassation changed the law. From now on, separated parents, when they jointly exercise parental authority, will be “both liable for damages caused by their minor child”. According to the Court’s ruling, both parents will be responsible, “even if the minor only resides with one of his parents”.
“When parents jointly exercise parental authority, the condition of cohabitation is therefore considered to be fulfilled even when they are separated and the child only resides with one of them”, explains the Court.
Unless the child has been entrusted to a third party, “by an administrative or judicial decision”. ” In this case, continues the Court, the child resides with this third party and the responsibility of the parents of the minor child cannot be incurred, even if the latter continue to exercise their parental authority.
In the Aubagne case, the Court overturns the appeal decision. A new judgment will have to take place.
