The Legal Concept of 'Domestic Servitude' in the Jurisprudence of the French Cour de Cassation

• Author: Jean-Guy Huglo
• Position: Doyen de la chambre sociale de la Cour de cassation
• Pages: 40-43

IRISH JUDICIAL STUDIES JOURNAL

[2019] Irish Judicial Studies Journal Vol 3(2)

40

THE LEGAL CONCEPT OF ‘DOMESTIC

SERVITUDE’ IN THE JURISPRUDENCE OF THE

FRENCH COUR DE CASSATION

Author: Jean-Guy Huglo, doyen de la chambre sociale de la Cour de cassation

The social chamber of the French Cour de Cassation has recently handed down an

interesting decision on a situation which it described as ‘domestic servitude’ which on the

one hand, sets out the scope of the legal concepts of slavery, forced labour and servitude,

and on the other hand provides clear guidance to the judiciary, arising from a number of

European and international conventions, with respect to the positive obligations which rest

on European states in connection with modern slavery.

1

A young girl, born in Morocco in 1982, was at 11 years old the subject of a ‘kafala’

adoption under local law by a Moroccan couple resident in France. She lived in the couple’s

home in France from 1994, by which time she was 12 years old. After fleeing from their

home when she reached the age of majority, with the help of a human rights association,

she complained to the courts, including a claim for damages as a partie civile, and on 14

September 2010 the couple were convicted before the criminal chamber of the Versailles

Court of Appeal of having obtained from this young woman the provision of unpaid

services, or services with a remuneration which was manifestly disproportionate to the

work undertaken, in circumstances where her vulnerability and her state of dependence was

apparent or was known to them, pursuant to Articles 225-13 and 225-19 of the Criminal

Code (as amended).

2

The criminal court found that the minor was burdened all the time with the great majority

of the domestic tasks for the family, which included responsibilities inappropriate for her

age, and obviously, unpaid, that she was not permitted to go to school and that the couple

concerned made no effort to integrate her socially in France.

3

The court also noted the girl

had no leave to remain and was in France illegally, using the passport of the couple’s

children, which created for her a risk of being removed to her country of origin. In the

circumstances, the criminal court awarded the victim €10,000 in damages for moral injury.

It should be noted that the minor also went to the employment courts (the juridiction

prud’homale) seeking damages for economic loss and asking that such damages be assessed

in line with the appropriate salary for her years of unpaid domestic work.

4

The social

chamber of the Versailles Court of Appeal

5

refused her application for indemnity for

economic loss, reasoning that although the couple had been convicted of having

committed the offence of non-payment or inadequate payment for the work of a

vulnerable person, nevertheless the amounts now sought were based on a presumed

1

Cour de Cassation [Cass.] [supreme court for judicial matters] soc., April 03, 2019, 16- 20.490. See Social Chamber, 3

April 2019, appeal no. 16-20.490, published in the Annual Report.

2

ibid. See Code Pénal [C. Pén] [Penal Code] art. 225-13 and 225-19 (Fr.).

3

See Cour de Cassation, appeal no. 16-20.490 case (n 1).

4

ibid.

5

The French Cour d’Appel has powers and functions similar to the Employment Appeal Tribunal, not the England and

Wales Court of Appeal.