To Hear or Not to Hear: Reasoning of Judges Regarding the Hearing of the Child in International Child Abduction Proceedings

Due to the sensitive family context in which child abductions occur, the hearing of the child in these proceedings often generates tensions. Judges as well as children may experience dilemmas related to the technical nature of the procedure, difficulties in assessing children’s maturity, specific challenges related to hearing young children, or lack of information and transparency, to name a few. Some of these tensions have been described in earlier research, among others on the well-being of abducted children,³ the hearing of abducted children in local jurisdictions,⁴ and more broadly the private international law context.⁵

The objective of the present Article is to analyze whether there is a tension between the legal framework on the right of the child to be heard and the arguments judges employ in their judgments against the hearing of the child in (non)return proceedings. Thus, the reasoning of judges is critically assessed against what is expected from them based on the applicable legal framework.

Even though authoritative legal and academic sources have provided guidance on the legal obligations of States, considerable discretion is left to judges to interpret the legal concepts.⁶ While many judges fulfill this task “with notable skill,” others’ decision making is led by “poor tendencies,” such as the tendency to ignore the child’s views and wishes, “often with damaging consequences for the individual child in any particular case and for children’s rights more generally.”⁷ As Daly notes: “The right to be heard provides . . . too many excuses to override children’s wishes, because it leaves adults (usually judges) with all of the discretion, and therefore all of the power.”⁸

The present Article contributes to this debate on the right of the child to be heard in general and the application of this right in the specific context of child abduction proceedings. It does this in particular by bringing a large sample of legal empirical data to the table. These data have been gathered during the EU-funded VOICE project (2018–2019).⁹ During this large-scale study, researchers analyzed 938 national and 62 transnational judgments concerning child abduction so as to understand if and how judges across Europe give substance to the notion of the child’s best interests when ruling on (non)return proceedings. In the 435 cases in which national judges did refer to the best interests of the child, researchers also analyzed whether judges heard the child in this regard. Case law from seventeen EU countries, decided between March 2005 and December 2017, was subjected to a qualitative analysis in NVivo.¹⁰ The selected judgments discussed return proceedings following a wrongful removal or retention of a child as understood under the HCCA and/or Brussels IIbis.

The Article will proceed as follows: the legal framework will be set out in Part I. Part II will give a brief overview of the research and the main results with regard to the hearing of the child. In Part III, the reasoning judges use to argue why not to hear the child in an international child abduction case will be discussed and assessed against the States’ legal obligations under the UNCRC, the HCCA, and Brussels IIbis.

I. Legal Framework on the Right to Hear the Child

A. Article 12 UNCRC

The right of the child to be heard in international child abduction proceedings is anchored in several legal instruments. The first relevant legal instrument is the UNCRC. This Convention is ratified by 196 States.¹¹ Article 12 UNCRC guarantees the right of the child to be heard in all matters affecting him or her and is thus not specific to child abduction cases. Paragraph one entails, first, the right of the child to express his or her views, which applies to every child “capable of forming his or her own views.” In its General Comment No. 12, the main jurisprudential source for guidance on how to interpret the legal implications of Article 12 UNCRC, the Committee on the Rights of the Child (the Committee) states that this phrase should not be seen as a limitation. Instead, the capacity of the child to form his or her views should be presumed.¹² Such capacity is not limited to mere rational competences. It also involves the child’s moral, emotional, and social capacity¹³ and does not require the child to have comprehensive knowledge of all aspects of the matter.¹⁴ Further, the Committee emphasizes that no age limit is imposed on this right and that States should refrain from imposing such age limits either in law or in practice.¹⁵

Second, the first paragraph of Article 12 UNCRC aims to ensure that this right would not be meaningless: The views expressed must be given due weight in accordance with the age and maturity of the child. The Committee offers little guidance on the implications of the notion of due weight. However, broader human rights standards suggest that the extent of “due weight” could be determined by taking into account a range of relevant factors, including to what extent children will be affected by the decision, how strongly they expressed their views, the potential harm that could result to the child, his or her rights or the rights of children generally by failing to act on those views, and whether the views of the child could possibly be followed in part.¹⁶ As a rule of thumb that could easily be adopted in cases of parental abduction, authors have suggested to interpret due weight in such a way that “[the] more [a] decision has far-going consequences for the child, the more his or her views need to be taken into consideration.”¹⁷

Further, it is important to note that according to Article 12 UNCRC, age in itself is insufficient to determine the significance of the child’s views.¹⁸ Also, the child’s maturity should be taken into account to this end. Age and maturity are dual criteria and should be considered together.¹⁹ The Committee defines maturity as “the ability to understand and assess the implications of a particular matter,” and “in the context of article 12, it is the capacity of a child to express her or his views on issues in a reasonable and independent manner.”²⁰ While these explanations might not clarify the exact scope of the age and maturity test, it is clear that this test should be conducted on a case-by-case basis and be guided by the concept of the child’s evolving capacities (Article 5 UNCRC).²¹

Thus, whether a child should be given the opportunity to be heard depends on the “capability of the child,” while the weight that should be attached to the views of the child depends on the “age and maturity of the child.” These legal concepts are not strictly distinguished in General Comment No. 12. The Committee uses the terms “capability” and “capacity” interchangeably in the literal analysis of the clause “capable of forming his or her own views.” When discussing the clause “being given due weight in accordance with the age and maturity of the child,” the Committee states that this refers to the capacity of the child. In particular, to define the concept of maturity, the Committee refers to the capacity to express views in a reasonable and independent manner. The addition “in a reasonable and independent manner” might hint at what is different between the legal concepts; a child should be given the opportunity to be heard when he or she has the capacity to express his or her views, but the extent to which the child is able to do this in a reasonable and independent manner will influence the weight that should be given to the child’s views.²²

Lastly, the second paragraph of Article 12 UNCRC expresses the right of the child to be heard in “any judicial and administrative proceedings affecting the child.” There is no doubt that international child abduction proceedings fall within the scope of this phrase.²³

B. Article 13(2) HCCA

The Convention of 25 October 1980 on the Civil Aspects of International Child Abduction regulates the return proceedings in international child abduction cases. This Convention applies between Contracting States to situations of wrongful removal or retention of a child under the age of sixteen.²⁴ Even though not as widely ratified as the UNCRC, the HCCA has nonetheless 101 Contracting States.²⁵ The HCCA does not explicitly provide a right for the child to be heard or an obligation for the States to hear the child in (non)return proceedings. However, Article 13(2) HCCA leaves room for the child’s voice.²⁶ The legal obligation on States to hear the child’s voice is, however, much more limited under this Convention than it is under the UNCRC: The HCCA does not contain an explicit obligation for courts to hear each child. Article 13(2) HCCA only provides an exception to return if the child objects to such return.²⁷ The ground for refusal is to be used only if the court finds that the child has attained an age and degree of maturity at which it is appropriate to take into account his or her views.²⁸ Moreover, like all other grounds for refusal under the HCCA, Article 13(2) is to be interpreted strictly.²⁹

Like Article 12 UNCRC, Article 13(2) HCCA requires an age and maturity test. However, the wording and the practical consequences of the test in both articles are not identical. In Article 12 UNCRC, the age and maturity test is used to determine how much weight should be given to the child’s views. This implies that the child’s views are taken into account but to a greater or lesser extent based on the child’s age and maturity. In Article 13(2) HCCA, the child has to have the age and maturity at which it is appropriate to take account of his or her views. If this is not the case, judges can simply ignore the child’s perspective.³⁰ Similar to Article 12 UNCRC, Article 13(2) HCCA does not determine a specific age limit but relies on a case-by-case assessment by a competent authority.³¹ The required degree or the exact meaning of maturity are not specified by the HCCA and will thus depend on the interpretation of individual judges or other professionals in charge of the child’s hearing.³²

C. Article 11(2) Brussels IIbis

For international child abduction cases between EU Member States, the HCCA has to be applied together with Brussels IIbis.³³ Article 11(2) Brussels IIbis provides that a child must be heard in (non)return proceedings “unless this appears inappropriate having regard to his or her age or degree of maturity.”³⁴

Thus, this Article expresses the right of the child to be heard during an international child abduction proceeding.³⁵ It is relevant to note that unlike Article 13(2) HCCA, Brussels IIbis does not limit this right to objections by the child. Article 11(2) Brussels IIbis “is not to be considered as a particular basis for a non-return order,” but rather reflects “a general requirement concerning the child’s fundamental rights.”³⁶ While the wording of Article 11(2) Brussels IIbis makes clear that the hearing of the child should be the principle, it still leaves room for the exception of not hearing the child and refers to the concepts of “age” and “maturity” to give expression to this exception. Brussels IIbis does not foresee any criteria regarding the determination of the required age or maturity.³⁷ The only guiding principle is “that this exception should be interpreted very strictly,” while it is up to the individual judges to give substance to the exception.³⁸

Both Article 11(2) Brussels IIbis and Article 12 UNCRC leave room to decide not to hear the child. However, the criteria on which this decision has to be based are different. A child does not have to be heard according to Article 11(2) Brussels IIbis if this appears inappropriate according to the age or maturity of the child. According to Article 12 UNCRC, a child does not have to be heard if the child is not capable of forming his or her own views. Even though the legal implications of the terms “maturity” and “capacity” are not fully clarified in the Committee’s General Comment No. 12, the scope of Article 11(2) Brussels IIbis seems narrower than Article 12 UNCRC. In particular, being capable of forming a view requires less than being mature,³⁹ as “children’s right to express their views is not dependent upon their capacity to express a mature view; it is dependent only on their ability to form a view, mature or not.”⁴⁰

The provision on the hearing of the child was identified by the European Commission as one of the main shortcomings of Brussels IIbis and as one of the reasons to propose an amendment in its recast in June 2016.⁴¹ The essence of the Commission’s proposal was accepted by the Council of the EU in its General Approach⁴² and was retained in the final version of the Recast Regulation, which was adopted on June 25, 2019.⁴³ Article 21 of the Recast Regulation provides a general right for the child to be heard. The wording of this article is almost entirely in line with Article 12 UNCRC: The child has to be provided the opportunity to be heard when he or she is “capable of forming his or her own views” and “the court shall give due weight to the views of the child in accordance with his or her age and maturity.” The Recast Regulation moreover explicitly refers to the UNCRC and the Charter of Fundamental Rights (CFR) of the EU⁴⁴ to indicate the importance of the opportunity of the child to express his or her views freely.⁴⁵

This overview of relevant legal instruments leads to two conclusions: (1) in principle, the child should be heard during an international child abduction proceeding and (2) exceptions to this principle can apply and are to a great extent dependent on the interpretation by individual judges or other professionals in charge of the child’s hearing. Thus, whereas in principle, the UNCRC applies to all children capable of forming their views, whether children will really be heard in practice and have their views taken into account largely depends on how adults in charge, and in particular judges, will interpret the concepts “capable of forming own views,” “age,” “maturity,” and “‘due weight.”

II. Research Method

The reasoning of judges regarding the hearing of the child in international child abduction proceedings was analyzed in the context of the VOICE project. Because the main focus of this research project was the best interests and not the hearing of the child in itself, the hearing was not analyzed for 503 out of 938 domestic cases where no explicit or implicit reference to the best interests of the child was made. Whereas it is possible that the child was heard in these cases, this information was not included in the research. In the remaining 435 cases that do discuss the child’s best interests, the hearing of the child was analyzed.

The results show that one or more children were heard in 194 out of the 435 analyzed cases. In 127 out of the 435 cases, the judge explicitly decided not to hear the child, and in 114 cases it was not clear whether the child was heard (see Table 1 for a break-down by country). These overall findings show that in almost thirty percent of the domestic child abduction cases, none of the children involved were heard. This solicits the question why judges decided not to hear the child—in particular, in light of the legal framework according to which hearing the child is the principle and not hearing the child the exception.⁴⁶

Table 1: The Hearing of the Child in National Case Law⁴⁷

III. Judges’ Reasoning Regarding the Hearing of the Child

The legal framework makes clear that not hearing the child can in principle only be justified when the child is not “capable of forming his or her own views” (Article 12 UNCRC) or when hearing the child would be “inappropriate having regard to his or her age or degree of maturity” (Article 11(2) Brussels IIbis). In the next sections, we will discuss whether the reasoning of judges stays within these legal boundaries when they decide not to hear the child.

A. Age and/or Maturity

In 46 out of the 127 cases in which none of the children involved were heard, the courts point out that they did not hear the child due to his or her low age,⁴⁸ degree of maturity,⁴⁹ or both.⁵⁰ In these cases, the children were between one and ten years old.

1. Age

To decide that a child is not capable of expressing his or her views based solely on the low age of the child is, strictly speaking, not in line with the States’ legal obligation under Article 12 UNCRC. Moreover, in its General Comment No. 12, the Committee stated that “the child is able to form views from the youngest age, even when she or he may be unable to express them verbally.”⁵¹ This is upheld in another General Comment on the implementation of children’s rights in early childhood, where the Committee explicitly confirms Article 12 UNCRC applies to young children too.⁵² Rather than using written or spoken language, these children could exercise their rights under Article 12 UNCRC, for example, through “emotions, drawing, painting, singing, drama.”⁵³ Thus, in principle, age should not be a barrier to let a child express his or her views and should not be the sole criterion to decide on a child’s capacity.

In light of Article 12 UNCRC, judges should consider hearing the child irrespective of the child’s young age, and take the age into account for the case-by-case determination about what weight should be attached to the child’s views. Indeed, for this assessment, “a higher threshold of competence is required.”⁵⁴ As a rule of thumb, the greater the impact on the life of a child, the more important it is to ensure that an appropriate assessment of the child’s age and maturity has been undertaken.⁵⁵ Similarly, the more elaborate the child’s capacities, the more adults should grant the child the freedom and responsibility to make decisions for him- or herself.⁵⁶

In two cases, the judges’ reasoning not to hear the child because of the low age of the child was explicitly based on the wording of Article 11(2) Brussels IIbis: “inappropriate having regard to his or her age or degree of maturity.”⁵⁷ In one of these cases, the child was two and a half years old. The age of the child in the other case is unknown. While Brussels IIbis does not specify which age and degree of maturity are required, it is clear from the Practice Guide that not hearing the child is an exception that should be interpreted very strictly. Also, younger children can be heard, but assessing their views “needs to be done with special expertise and care.”⁵⁸ However, some jurisdiction may apply age limits for hearing a child. Nevertheless, even if such a provision applies, Brussels IIbis cannot modify national procedures or oblige national courts to hear children below this age limit.⁵⁹

In five cases, the child was not heard because “hearing of the child was not asked for and is not mandatory.” In these cases, the child had not reached the minimum age to be heard as established by the specific national law.⁶⁰ In Bulgaria and Romania, it is only mandatory to hear a child beginning at the age of ten.⁶¹ Belgium,⁶² the Czech Republic,⁶³ Italy,⁶⁴ and the Netherlands⁶⁵ put the starting age limit at twelve, while Malta⁶⁶ and Hungary⁶⁷ begin their age limits at fourteen. Thus, while the Committee discourages States “from introducing age limits either in law or in practice which would restrict the child’s right to be heard,” age limits in law are not exceptional across EU jurisdictions.⁶⁸ Following the Committee’s recommendations in the General Comment No. 12, however, if such age limits are imposed, they should not restrict the opportunity for children under the age limit to have access to a judge or other adult in charge and be heard about their perspective on the case.⁶⁹ In Belgium, for example, children under twelve can request to be heard, for instance by writing a letter to the judge, which may not be dismissed.⁷⁰

On a positive note, it is noteworthy that of the fifty cases in which all of the involved children were between zero and three years old, the children got the opportunity to be heard in twenty percent of these cases. However, the hearing of the children in this age category never took place in front of a judge.⁷¹

2. Maturity

In four cases, the courts found that the children did not have the required degree of maturity to express their opinion.⁷² The children were between five and ten years old.

When taking into account the literal text of Article 12 UNCRC, it would not be correct to decide not to hear a child based on the degree of maturity because this criterion is only relevant for deciding how much weight to attach to the child’s views. The decision on whether to hear a child should be based on the capability of the child to express his or her views. However, as stated above, these legal concepts are not clearly distinguished in the General Comment No. 12. Further, by defining the concept of maturity as “the capacity to express views in a reasonable and independent manner,” the Committee facilitates terminological confusion between the legal concepts. Thus, when judges refer to “degree of maturity” as a reason not to hear the child, it could be that they actually refer to being capable of expressing one’s views because capability and maturity may not be so easy to distinguish.

3. Age and Maturity

In seven cases, courts decided not to hear the child based on age and maturity. In two of these cases, the courts’ reasoning was explicitly based on the wording of Article 11(2) Brussels IIbis. The courts stated that it would be inappropriate to hear the child given his or her young age and degree of maturity.⁷³ The children involved were three and seven years old. In two cases, the legal basis was not entirely clear. However, because all involved countries in these cases are Member States of the EU, Brussels IIbis was certainly applicable.⁷⁴ The children in these cases were six, eight, and nine years old. In three cases, the reasoning was based on Article 13(2) HCCA.⁷⁵ The children involved were respectively four, six, seven, and ten years old. The reasoning in these seven cases is completely in accordance with the applicable legal framework and more specifically with the wording of Article 11(2) Brussels IIbis and Article 13(2) HCCA. The only question that can be posed with regard to these cases is on the basis of which arguments the courts decided that these children would be too young and immature to express their views. Unfortunately, this is not explained in the judicial decisions.

In two cases, the courts seem to add conditions for the hearing of the child that go beyond the condition “capable of expressing his or her views” in Article 12 UNCRC and “age and degree of maturity” in Article 11(2) Brussels IIbis. The courts stated:

The hearing can only be justified having regard to the age and the level of maturity if there is reason to believe that he or she has an ability of understanding: he or she could decide what his or her interests are and he or she could identify a physical or psychological harm or an intolerable situation.⁷⁶

Because these conditions were not fulfilled, the courts did not hear the child. Whereas scholars disagree about the extent to which children should have an understanding of the issue,⁷⁷ the Committee has held that comprehensive knowledge is not required to determine a child’s capacity to form his or her views.⁷⁸ In particular, children’s capacity to decide what their best interests are and what constitutes an intolerable situation may be indicators for which even most adults would fail to show sufficient understanding. As Archard and Skivenes have stated: “a child should not be judged against a standard of competence by which even most adults would fail.”⁷⁹ In light of the General Comment No. 12, making a hearing dependent on such criteria does injustice to children’s right to be heard under Article 12 UNCRC.⁸⁰

B. Children Requiring Additional Support

The right to be heard should also be ensured for children “experiencing difficulties in making their views heard,” such as children with disabilities.⁸¹

In one case, the child showed signs of slowed speech and attention deficit disorder according to the medical examination. The court therefore decided not to carry out an interview with the four-year-old child.⁸²

However, a child with slowed speech and attention deficit disorder, and by extension a child with any kind of disability, could be “capable of expressing his or her own views” when provided with the right equipment and support.⁸³

Such additional support measures are a legal obligation of States under Article 12 UNCRC⁸⁴ and could apply equally for children who experience difficulties when being heard as for adults who are responsible for the child’s hearing. On the one hand, taking into account a child’s evolving capacities, some children may require assistance from others to explore and develop their views.⁸⁵ On the other hand, implementing the right to be heard for children with disabilities or other marginalized groups of children may require additional support measures for those in charge of the conversation with the child to meet the standards necessary for a proper hearing.⁸⁶ At the moment, judges in some jurisdictions report a lack of proper training, equipment, and support to develop these competencies fully.⁸⁷

C. Influence or Manipulation

In one case, the court decided not to hear the child because of possible influence or manipulation. The court determined that the child could be manipulated by the father and did not hear the child because of this possibility.⁸⁸ This reasoning is regrettable for two reasons. First, the judge based the decision not to hear the child on the mere possibility of influence. The possibility of pressure, manipulation, or coercion can never be the sole reason why children are denied their right to be heard.⁸⁹ In the specific context of child abduction, the possibility that the child is influenced will exist in every case because the abducting parent is necessarily alone with the child for a shorter or longer period. Moreover, it could be argued that no human being is fully autonomous and independent when forming or expressing a view.⁹⁰ Second, the judge concluded that there was possible influence or manipulation without even hearing the child.⁹¹ If the judge had heard the child, he or she could have decided how much weight should be given to the child’s views in the final decision considering the possibility of influence or manipulation, as was done in other cases.⁹² In this manner, the judge would not have breached the obligation to hear the child based on Articles 12 UNCRC and 11(2) Brussels IIbis.

D. Best Interests of the Child

In exceptional cases, hearing the child could be a traumatizing event because the child gets involved in the parents’ dispute.⁹³ This rather protectionist perspective, however, may entail a risk of paternalism. Adults would then limit children’s liberty or autonomy under the pretense that this is for their own good, as such precluding expression of the child’s views or not leaving room for their perspectives.⁹⁴ Such protectionist line of thinking was found in one case, in which the court found that hearing the child would not be in the child’s best interests due to the risk of anxiety.⁹⁵ However, more recent research shows that children want to be heard in judicial proceedings that concern them and that not giving a voice to the children can be more harmful than the possible negative effects of a hearing.⁹⁶ In exceptional circumstances, a hearing can be a difficult process that may have a negative or even traumatic impact on the child.⁹⁷ To accommodate this risk, States have a legal obligation to ensure that protection measures are in place so that the child is not in danger (whether physical, mental, or emotional) as a result of expressing his or her views.⁹⁸ Further, Parkes has argued that the possibility of harm cannot be the sole reason to deny a child the right to express his or her views.⁹⁹ Rather, measures should be taken to prevent such harm from occurring so that children can be involved to the greatest possible extent.

E. Specificities of Legal Procedures

In eleven cases, the child was already heard during the first instance proceedings so that the court found a second hearing of the child unnecessary¹⁰⁰ or not appropriate.¹⁰¹ The reasoning of the courts in these cases is supported by the General Comment No. 12 in which the Committee states that “a child should not be interviewed more often than necessary.”¹⁰² Thus, while this is not an exception provided for in Article 12 UNCRC itself, the Committee is aware that hearing the child too many times might not be in his or her best interests as provided for in Article 3 UNCRC.

In twelve cases, the case was dealt with by a court that, according to national law, can only deal with questions of law or where the procedure is ex parte.¹⁰³ Inevitably, children are not heard during these kinds of proceedings. The national structure of the court system and the competences assigned to the courts have to be respected.¹⁰⁴ However, this does not exempt the national authorities from their procedural obligations under Article 3 UNCRC to communicate with children and inform them about the process.¹⁰⁵

In two cases, the courts found that hearing the child has to be carried out by the court of the State of the former habitual residence that will decide on the parental responsibilities.¹⁰⁶ This reasoning stems from the distinction made in the HCCA between the return proceedings and the proceedings on the merits.¹⁰⁷ This distinction is reflected in Article 1 HCCA, in which the two objectives of the HCCA are defined, namely (a) to secure the prompt return of children wrongfully removed to or retained in any contracting State and (b) to ensure that rights of custody and of access under the law of one contracting State are effectively respected in the other contracting States. These two objectives can be considered as intertwined in the sense that a prompt return of the child to the State of habitual residence facilitates ensuring respect for the rights of custody and access under the law of that State.¹⁰⁸ In this sense, the two objectives also represent the two distinct procedures: the return proceedings in the State of refuge in which the courts of that State can only decide on the return of the child by applying the HCCA and the proceedings on the merits in the State of habitual residence during which the courts of the State of habitual residence have to decide on the rights of custody and access. This latter decision will be taken based on national law concerning custody and access rights, complemented by Brussels IIbis for proceedings within the EU. It is made very clear in Article 16 HCCA that the courts of the State of refuge shall not decide on the merits concerning the rights of custody and in Article 19 HCCA that a decision on the (non)return shall not be taken to be a decision on the merits of any custody issue.

However, the reasoning that the hearing of the child only has a place in the proceedings on the merits is not in line with the court’s obligations under Article 12 UNCRC, which clearly states that the child has the right to express his or her views in all matters affecting the child.¹⁰⁹ Whether the child has to return is without doubt a matter that affects the child and, thus, the child should be given the opportunity to express his or her views. Also Article 11(2) Brussels IIbis makes clear that the right of the child to be heard is important not only during the procedures on the merits. This article reinforces the right of the child to be heard in (non)return proceedings where courts apply Article 12 or 13 HCCA. In the Brussels IIbis Recast Regulation, the importance of hearing the child in (non)return proceedings is acknowledged for the entire procedure, not only when applying Article 12 or 13 HCCA.¹¹⁰

IV. Conclusion

The legal framework applicable in child abduction cases makes clear that in principle, a child must be given the opportunity to be heard in (non)return proceedings following an international child abduction. An exception can be made if a child is not capable of expressing his or her views (Article 12 UNCRC) or when hearing the child would be inappropriate given his or her age or degree of maturity (Article 11(2) Brussels IIbis).

Because considerable discretion is left to judges for interpreting these legal concepts, this Article focused on the question whether there is a tension between the general legal framework on the right of the child to be heard on one hand and the application of this legal framework in the specific context of cases on international child abduction on the other.

Through the lens of judges’ reasoning not to hear children in (non)return proceedings, this Article has contributed to the debate on the right of the child to be heard in general and the application of this right in the specific context of child abduction proceedings. In particular, the analysis of case law has shown that judges use a number of different reasons not to hear children. These reasons concerned the age and/or maturity of the child, need for additional support of the child, influence or manipulation, the child’s best interests, and specificities of legal procedures.

When judges base their reasoning on Article 12 UNCRC, they have to show that the child is not “capable of forming his or her own views.” The analysis shows, however, that judges do not use this reason in line with the Committee’s interpretation of this right in General Comment No. 12. While, in some cases, judges find that children between one and four years old are too young to express their views, the General Comment states that children are able to “form views from the youngest age.” Even when they cannot express their views verbally, it could be done through emotions, drawing, etc.

Article 11(2) Brussels IIbis provides a different standard for not hearing the child, namely age or maturity. When using this legal basis, judges tend to base their reasoning mostly on the age of the child. Children between one and ten years old were found too young to be given the opportunity to be heard. While there are no specific guidelines similar to the General Comment No. 12 for applying this provision, the observation in the latter document—that even the youngest children are able to form views—is without doubt valid when Article 11(2) Brussels IIbis is used as a legal basis. Whereas this does not imply that young children should always be considered old and mature enough to be heard in cases of parental abduction, it does put an obligation on States to have the child’s capacity to form his or her own views assessed on a case-by-case basis by an expert who is trained to understand a child’s feelings and perspectives.¹¹¹

Another reason used not to hear the child in (non)return proceedings is the child’s physical limitations. However, physical characteristics do not automatically make a child incapable of forming his or her views. In particular, the Committee’s General Comment No. 12 states that “children with disabilities should be equipped with, and enabled to use, any mode of communication necessary to facilitate the expression of their views.”¹¹² Thus, this reason does not correspond with States’ legal obligations on hearing the child.

Other arguments judges invoked in child abduction proceedings include the possible influence of the child and the possible harm that the hearing could have on the child. Following the legal framework, however, both reasons are not satisfactory for deciding not to hear the child. The possible influence of the child is not a reason not to hear the child, but it is an element to take into account when deciding how much weight to give to the child’s views. The possible harm that a hearing could impose on a child cannot be the sole reason not to hear the child; rather, measures must be taken to prevent this harm from occurring.

The above argumentation is relevant for both the general discussion on the right of the child to be heard as well as the application of this right in (non)return proceedings. Specific to cases of child abduction, however, is the persistent belief among some judges who deal with such cases that the hearing has to be carried out by the court of the State of the former habitual residence. This reason for not hearing the child is very specific to the proceedings concerning international child abduction. However, it is contrary to Article 12 UNCRC, which provides a right for the child to express his or her views in all matters affecting the child. Further, this belief is also contrary to Article 11(2) Brussels IIbis insofar as the court applies Article 12 or 13 HCCA to decide on the return of the child.

Overall, it can be concluded that there is indeed a tension between the exceptions on the right of the child to be heard provided for in the legal framework and the arguments judges rely on to decide not to hear a child in cases of international child abduction. Some judges deny the child the right to be given the opportunity to be heard based on reasons that are not provided for within the legal framework. The question on whether a tension exists can hereby be answered in the positive. However, the logical follow-up question—why such a tension exists—cannot be answered based on the case law analysis done in the context of the VOICE project.

We can only make a first guess on why this could be so. First, the legal framework is in itself not very clear. Article 12 UNCRC has different conditions for the hearing of the child than Article 11(2) Brussels IIbis, while some legal concepts (“age” and “maturity”) are used in both articles but in a different manner. Also, General Comment No. 12 does not elucidate the confusion that may exist between the concepts of capability and capacity used in Article 12 UNCRC. The Practice Guide on Brussels IIbis does not give an extensive explication on how to interpret Article 11(2) Brussels IIbis either. In this sense, the Brussels IIbis Recast Regulation is very welcome. While the Recast will not solve all problems concerning, for example, the confusion on the difference between “capacity” and “maturity” in the context of child abduction proceedings, it will at least make an end to the different standards on when a child can be heard employed in Article 12 UNCRC and Article 11(2) Brussels IIbis.

Further, a fear may exist that hearing an abducted child would leave the child with too much responsibility. However, from a children’s rights perspective, it should be clear that the purpose of a hearing is not to grant the child an exclusive right to decide,¹¹³ nor to burden children with the responsibility to choose between their parents.¹¹⁴ Rather, a hearing creates opportunities for judges and other decision makers to look at matters deeply affecting children through the eyes of this child. Also, the fear that children may be harmed by hearing them can be a reason for judges not to strictly follow the legal framework. However, a genuine interest in the voice of the child may also overcome this fear. Whereas a child should not be interviewed more often than necessary when harmful events are explored,¹¹⁵ children tend to cope better if they are appropriately informed about the procedures and the decision at stake.¹¹⁶

Of course, we cannot place full responsibility for the success of (non)return procedures on the shoulders of the judge. As mentioned before, judges in some jurisdictions report a lack of proper training, support, equipment, and financial means. In addition, they are bound by national procedural law, including age limits, and the national structure of the court system. Thus, to make sure that all professionals with a responsibility to guarantee an adequate implementation of children’s right to be heard are enabled to apply the legal framework and to make sure that the hearing can take place in adequate, safe, and child-friendly conditions, States should be reminded of their obligation to provide adequate intellectual, logistical, and financial support.¹¹⁷ In addition, whereas a legal analysis of case law only gives an indication of judges’ perspectives, other key decision makers and professionals—including central authorities, lawyers, child experts, mediators, and policymakers—are equally accountable for realizing children’s rights in such proceedings. Further (empirical) research is necessary to bring their approaches to the table.

Notes

1. United Nations Convention on the Rights of the Child, art. 12, Nov. 30, 1989, 1577 U.N.T.S. 3 [hereinafter UNCRC].

2. Hague Convention on the Civil Aspects of International Child Abduction, art. 13(2), Oct. 25, 1980, 1343 U.N.T.S. 89 [hereinafter HCCA]; see also Council Regulation (EC) No. 2201/2003, art. 11(2), Nov. 27, 2003 [hereinafter Brussels IIbis].

3. Rhona Schuz, The Hague Child Abduction Convention: A Critical Analysis (Hart Publishing 2013); Michael Freeman, The Best Interests of the Child? Is the Best Interest of the Child in the Best Interests of Children?, 11 Int’l J. Law Pol’y & Fam. 360 (1997); Marilyn Freeman, Parental Child Abduction: The Long-Term Effects, Int’l Ctr. for Fam. L., Pol’y & Prac. (2014), http://www.famlawandpractice.com/researchers/longtermeffects.pdf; Geoffrey L. Greif, The Long-Term Aftermath of Child Abduction: Two Case Studies and Implications for Family Therapy, 37 Am. J. Fam. Therapy 273 (2009); Kim Van Hoorde et al., Enhancing the Well-being of Children in Cases of International Child Abduction, Bouncing Back: The Wellbeing of Children in International Child Abduction Cases (2017), http://missingchildreneurope.eu/Portals/1/Docs/Compiled_research_report_final.pdf.

4. Sara Lembrechts et al., Conversations Between Children and Judges in Child Abduction Cases in Belgium and The Netherlands, Tijdschrift voor Familie en Recht – J. Fam. L., Feb. 2019.

5. Thalia Kruger, International Child Abduction: The Inadequacies of the Law (Hart Publishing 2011).

6. Helen Stalford, Kathryn Hollingsworth & Stephan Gilmore, Rewriting Children’s Rights Judgments—From Academic Vision to New Practice 41 (Hart Publishing 2017).

7. The other tendencies described by Stalford, Hollingsworth, and Gilmore are the following: fixed judicial conceptualisations of children and childhood, a resistance to seeing children as right-holders, the tendency to obscure best interests assessments, and the tendency to sideline children in court proceedings. See id. at 30.

8. Aoife Daly, Children, Autonomy and the Courts: Beyond the Right to be Heard 2 (Brill Nijhoff 2017).

9. Project reference: JUST/2016/JCOO/AG/CIVI/764206.

10. The countries included in the analysis are Belgium, Bulgaria, Croatia, Czech Republic, Finland, France, Germany, Greece, Hungary, Italy, Latvia, Malta, the Netherlands, Poland, Romania, Spain, and Sweden (n = 938). Also, the case law of the European Court on Human Rights (ECtHR, n = 54) and the Court of Justice of the European Union (ECJ, n = 8) has been studied to the extent it could enhance the understanding of the notion of the best interests of the child.

11. Only the United States signed but did not ratify. See Status of Ratification Interactive Dashboard, UN Human Rights Office of the High Comm’r, http://indicators.ohchr.org (last visited June 2, 2020).

12. UN Comm. on the Rights of the Child, General Comment No. 12: The Right of the Child to Be Heard, ¶ 20, UN Doc. CRC/C/GC/12 (July 20, 2009), www2.ohchr.org/english/bodies/crc/docs/AdvanceVersions/CRC-C-GC-12.pdf [hereinafter UN Comm. on the Rights of the Child, General Comment No. 12].

13. Katrien Herbots & Johan Put, The Participation Disc: A Concept Analysis of (a) Child(’s Right to) Participation, 23 Int’l J. Child. Rts. 154, 161 (2015).

14. UN Comm. on the Rights of the Child, General Comment No. 12, supra note 12, ¶ 21.

15. Id.

16. Carolyne Willow, Save the Children Sweden, Children’s Right to Be Heard and Effective Child Protection 40 (2010), https://resourcecentre.savethechildren.net/node/2481/pdf/2481.pdf. However, jurisprudence of the European Court of Human Rights has shown that States’ legal obligations in this regard are constantly evolving. See, e.g., M. & M. v. Croatia, App. No. 10161/13, Eur. Ct. H.R. para. 185 (2015) (where the European Court of Human Rights pushes “giving due weight to the child’s views” to the point of respecting and thus following the child’s views (in situations where both parents are equally fit to take care of the child, and the child, having regard to his or her age and maturity, is capable of forming his or her own views and expressing them)).

17. Fiona Ang et al., Participation Rights in the UN Convention on the Rights of the Child 19 (Intersentia 2006). See also Marie-Francoise Lucker-Babel, The Right of the Child to Express Views and to Be Heard: An Attempt to Interpret Article 12 of the UN Convention on the Rights of the Child, 3 Int’l J. Child. Rts. 391, 399 (1995).

18. UN Comm. on the Rights of the Child, General Comment No. 12, supra note 12, ¶ 29.

19. Aisling Parkes, Children and International Human Rights Law: The Right of the Child to Be Heard 36 (Routledge 2013).

20. UN Comm. on the Rights of the Child, General Comment No. 12, supra note 12, ¶ 30.

21. Id. ¶ 29.

22. See Laura Lundy, “Voice” Is Not Enough: Conceptualising Article 12 of the United Nations Convention on the Rights of the Child, 33 Brit. Educ. Res. J. 927, 935 (2007).

23. UN Comm. on the Rights of the Child, General Comment No. 12, supra note 12, ¶ 32.

24. Art. 4 HCCA; Art. 35 HCCA.

25. See HCCH, 28: Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Oct. 25, 1980, http://www.hcch.net/en/instruments/conventions/status-table/?cid=24 (last visited June 2, 2020).

26. Kruger, supra note 5, at 36; Benedetta Ubertazzi, The Hearing of the Child in the Brussels IIa Regulation and Its Recast Proposal, 13(3) J. Pvt. Int’l Law 568, 583 (2017).

27. Ar. 13(2) HCCA.

28. Id.

29. Elisa Pérez-Vera, Explanatory Report on the 1980 Hague Child Abduction Convention, ¶ 34 (1982), https://assets.hcch.net/docs/a5fb103c-2ceb-4d17-87e3-a7528a0d368c.pdf.

30. Trynie Boezaart, Listening to the Child’s Objection, New Zealand L. Rev. 357, 362–63 (2013).

31. Pérez-Vera, supra note 29, ¶ 30.

32. Linda D. Elrod, Please Let Me Stay: Hearing the Voice of the Child in Hague Abduction Cases, 63 Okla. L. Rev. 663, 678 (2011); Schuz, supra note 3, at 324.

33. Brussels IIbis arts. 11, 60(a) & Recital 17–18.

34. Id. art. 11(2).

35. Eur. Comm’n, Practice Guide for the Application of the Brussels IIa Regulation 55 (2016), https://publications.europa.eu/en/publication-detail/-/publication/f7d39509-3f10-4ae2-b993-53ac6b9f93ed# [hereinafter Eur. Comm’n, Practice Guide].

36. Ulrich Magnus, Peter Mankowski & Étienne Pataut, Brussels IIbis Regulation, European Commentaries on Private International Law, art. 11, n.23 (2012); Schuz, supra note 3, at 374.

37. Eur. Comm’n, Practice Guide, supra note 35, at 55.

38. Id. at 77.

39. Boezaart, supra note 30, at 363.

40. Lundy, supra note 22, at 935.

41. Eur. Comm’n, Proposal for a Council Regulation on Jurisdiction, the Recognition and Enforcement of Decisions in Matrimonial Matters and the Matters of Parental Responsibility, and on International Child Abduction (Recast) (2016), https://ec.europa.eu/transparency/regdoc/rep/1/2016/EN/1-2016-411-EN-F1-1.PDF.

42. Council of the European Union, Proposal for a Council Regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast) - General approach (2018), http://data.consilium.europa.eu/doc/document/ST-15401-2018-INIT/en/pdf.

43. Council Regulation (EU) No. 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction.

44. Article 24 of the Charter enshrines the rights of the child to such protection and care as is necessary for their well-being, to express their views and have them taken into consideration (§ 1), to have his or her best interests taken into consideration in all actions concerning children (§ 2), and to maintain a relationship with both parents, unless this would not be in the child’s best interests (§ 3). Article 24 CFR applies when EU law—in casu Brussels IIbis—is applicable.

45. Recital 39.

46. It is a well-known maxim that “Exceptio est strictissimae interpretationis,” which means that an exception to a principle has to be interpreted in a strict manner. Boudewijn Bouckaert & Bart de Moor, Handleiding Juridisch schrijven 113 (Maklu 2004); Aaron X. Fellmeth & Maurice Horwitz, Guide to Latin in International Law 101 (Oxford Univ. Press 2009).

47. It should be noted that the big difference in the amount of cases that could be collected for each country is due to the differences in the country’s publishing traditions.

48. BG001 [Feb. 23, 2009] РЕШЕНИЕ ОТ 23.02.2009 Г. ПО ГР. Д. № 508/2008 Г. НА СОФИЙСКИ ГРАДСКИ СЪД; CR001 [Oct. 3, 2016] Općinski sud u Osijeku R1 Ob-566/2016-26; CR003 [Apr. 27, 2017] Općinski sud u Osijeku R1 Ob-223/17-22; CR016 [May 25, 2017] Općinski građanski sud u Zagrebu 131-R1 Ob-649/17-11; CZ009 [Feb. 27, 2007] Supreme Court of the Czech Republic 3425/2006; CZ010 [Nov. 28, 2006] 30 Cdo 1931/2006; CZ012 [Feb. 5, 2014] II. ÚS 1116/13; FI021 [Apr. 7, 2006] Korkein oikeus päätös 0774/2006; FR056 [Feb. 17, 2011] Cour d’appel Paris 11/00507; FR062 [Dec. 1, 2011] Cour d’appel Agen 11/01437; FR100 [Feb. 10, 2015] Cour d’appel Paris 14/21136; FR107 [July 7, 2015] Cour d’appel Orléans 15/01258; FR113 [Apr. 14, 2016] Cour d’appel Paris 16/02260; GE007 [Nov. 12, 2009] OLG Zweibruecken 6 UF 118/09; GE015 [June 12, 2013] KG 16 UF 122/13; GE020 [July 23, 2008] AG Rostock 11 F 159/08; GE031 [Mar. 18, 2016] OLG Stuttgart 17 UF 44/15; GE038 [Dec. 15, 2011] OLG Hamm II-11 UF 240/11; GR004 [2015] Court of First Instance of Athens 15/03/2015; GR017 [2006] Court of Appeal of Patras 797/2006; HUN23 [Sept. 7, 2016] Central District Court of Pest 31.Pk.500228/2016; IT030 [Jan. 23, 2013] Cassazione civ. sez. I 23/01/2013 n. 1527; LV021 [Apr. 24, 2015] C3143741; MA004 Direttur tad-Dipartiment ghal Standards fil-Harsien Socjali v. Josephine Arslan [July 8, 2008] Qorti ta’ L-Appell 78/2007/1; MA008 Direttur tad-Dipartiment Ghal Standards fil-Harsien Socjali vs. RR [June 28, 2012] Qorti Civili 15/2012; MA009 Direttur tad-Dipartiment ghal Standards fil-Harsien Socjali vs. Michael Caruana [Aug. 3, 2012] Qorti ta’ L-Appell 15/2012/1; MA016 Sharon Rose Roche [July 28, 2016] Prim Awla Qorti Civili (Sede Kostituzzjonali) 81/2015/AF; NE104 [May 26, 2014] Gerechtshof Den Haag 200.148.437/01; RO008 [Sept. 18, 2007] Bucharest Tribunal 22978/3/2007; RO039 [Oct. 31, 2006] Bucharest Tribunal 24553/3/2006; RO040 [Mar. 1, 2007] Bucharest Court of Appeal 24553/3/2006; RO042 [Nov. 27, 2006] Bucharest Court of Appeal 10835/3/2006; RO045 [May 12, 2011] Bucharest Tribunal 62900/3/2010; SP004 [Dec. 14, 2016] Juzgado de 1ª Instancia n3 de Granada ECLI: JPI:2016:723; SP014 [Jan. 19, 2016] ECLI:ES:APZ:2016:18.

49. CR027 [June 16, 2017] Općinski sud u Rijeci R1 Ob-649/16; CZ012 [Feb. 5, 2014] II. ÚS 1116/13; FR039 [Feb. 25, 2009] Cour de Cassation 08-18126; NE013 [Jan. 7, 2009] Gerechtshof ‘s-Gravenhage 200.019.995-01.

50. BE035 [Feb. 20, 2015] Cour d’appel Bruxelles 2014/JR/73 and 2014/FA/113; FI008 [July 5, 2011] Helsingin hovioikeus Päätös 2268; FR027 [May 22, 2008] Cour d’appel de Paris 07/44064; FR028 [June 4, 2008] Cour d’appel Grenoble 08/01779; FR082 [July 5, 2013] Cour d’appel Paris 13/11740; IT035 [June 16, 2011] Cassazione civile sez. I 16/06/2011 n. 13241; MA019 Director of the Department for Social Welfare Standards vs. ABCDE [Dec. 7, 2016] Civil Court (Family Section) 179/16 RGM.

51. UN Comm. on the Rights of the Child, General Comment No. 12, supra note 12, ¶ 21, subpt. 1.

52. UN Comm. on the Rights of the Child, General Comment No. 7 (2005): Implementing Child Rights in Early Childhood, ¶ 14 (Sept. 20, 2006).

53. Gerison Lansdown, Innocenti Research Centre, UNICEF/Save the Children, Florence, The Evolving Capacities of the Child 4 (2005).

54. Id.

55. Gerison Lansdown, UNICEF, Every Child’s Right to Be Heard: A Resource Guide to the UN Committee on the Rights of the Child General Comment 12, at 23 (2011).

56. Id. at 24.

57. BE016 [Oct. 20, 2009] Tribunal de première instance Bruxelles 09/9117/A; BE033 SS v AS [Apr. 15, 2014] Hof van Beroep Antwerpen.

58. Eur. Comm’n, Practice Guide, supra note 35, at 55, 77.

59. Brussels IIbis Recital 19.

60. RO008 [Sept. 18, 2007] Bucharest Tribunal 22978/3/2007; RO039 [Oct. 31, 2006] Bucharest Tribunal 24553/3/2006; RO040 [Mar. 1, 2007] Bucharest Court of Appeal 24553/3/2006; RO042 [Nov. 27, 2006] Bucharest Court of Appeal 10835/3/2006; RO045 [May 12, 2011] Bucharest Tribunal 62900/3/2010.

61. Bulgarian legal provision: art. 15(1) Child Protection Act, art. 15(1); Romanian law: Law 369/2004, art. 11(4–5).

62. Code Civil P. art. 1004/2(3) (Belg.).

63. Civil Code § 867/2 (Czech).

64. C.c arts. 315-bis, 336-bis, 337-octies (It.).

65. Art. 809§1 Rv (Neth.).

66. Laws of Malta, ch. 16, arts. 6A, 131(4).

67. § 230(4) Act CXXX of 2016 on Code of Civ. Pro. (Hung.).

68. An age limit concerning the hearing of a child is, for example, also known in Belgian law (C.Jud. art. 1004/1) and Dutch law (Art. 809 Rv).

69. UN Comm. on the Rights of the Child, General Comment No. 12, supra note 12, ¶ 21.

70. Code Civ. P. art. 1004/1(2) (Belg.).

71. BG007 [July 4, 2011] РЕШЕНИЕ No 1129 ОТ 04.07.2011 Г. ПО Ч. ГР. Д. No 2056/2011 Г., Г. О., ІV С-В НА АПЕЛАТИВЕН СЪД – СОФИЯ; BG013 [June 29, 2012] РЕШЕНИЕОТ 29.06.2012 Г. ПОГР. Д. No 17219/2011 Г.НАСОФИЙСКИГРАДСКИСЪД; BG014 [Feb. 8, 2013] РЕШЕНИЕ No 230 ОТ 08.02.2013 Г. ПОГР. Д. No 4529/2012 Г. НААПЕЛАТИВЕНСЪД – СОФИЯ; BG017 [Jan. 1, 2013] РЕШЕНИЕ No 2417 ОТ 01.04.2013 Г. ПОГРАЖДАНСКОДЕЛО No 13970/2012 Г. НАСОФИЙСКИГРАДСКИСЪД; BG029 [Oct. 22, 2014] РЕШЕНИЕ No 1925 ОТ 22.10.2014 Г. ПОГР. Д. No 2776/2014 Г. НААПЕЛАТИВЕНСЪД – СОФИЯ; BG031 [May 19, 2014] РЕШЕНИЕ No 3533 ОТ 19.05.2014 Г. ПОГР. Д. No 17289/2013 Г.НАСОФИЙСКИГРАДСКИСЪД; BG037 [Feb. 13, 2015] РЕШЕНИЕ No 1030 ОТ 13.02.2015 Г. ПОГР. Д. No 8800/2014 Г. НАСОФИЙСКИГРАДСКИСЪД; BG049 [Dec. 27, 2016] РЕШЕНИЕ No 9391 ОТ 27.12.2016 Г. ПОГР. Д. No 3731/2016 Г. НАСОФИЙСКИГРАДСКИСЪД; FR080 [June 25, 2013] Cour d’appel Bordeaux 13/02540; PL001 [Nov. 26, 2015] Sad Rejonowy w Bialymstoku IV Nsm 413/15.

72. CR027 [June 16, 2017] Općinski sud u Rijeci R1 Ob-649/16; CZ012 [Feb. 5, 2014] II. ÚS 1116/13.

73. BE035 [Feb. 20, 2015] Cour d’appel Bruxelles 2014/JR/73 and 2014/FA/113; FR027 [May 22, 2008] Cour d’appel de Paris 07/44064.

74. FI008 [July 5, 2011] Helsingin hovioikeus Päätös 2268; FR082 [July 5, 2013] Cour d’appel Paris 13/11740.

75. FR028 [June 4, 2008] Cour d’appel Grenoble 08/01779; IT035 [June 16, 2011] Cassazione civile sez. I 16/06/2011 n. 13241; MA019 Director of the Department for Social Welfare Standards v. ABCDE [Dec. 7, 2016] Civil Court (Family Section) 179/16 RGM.

76. HUN02 [July 4, 2016] Central District Court of Pest 29.Pk.500142/2016/12; HUN23 [Sept. 7, 2016] Central District Court of Pest 31.Pk.500228/2016.

77. Fiona Ang et al., Participation Rights in the UN Convention on the Rights of the Child 13 (Intersentia 2006).

78. UN Comm. on the Rights of the Child, General Comment No. 12, supra note 12, ¶ 21 subpt. 2.

79. David Archard & Marit Skivenes, Balancing a Child’s Best Interests and a Child’s Views, 17 Int’l J. Child. Rts. 1, 10 (2009).

80. Herbots & Put, supra note 13, at 161.

81. UN Comm. on the Rights of the Child, General Comment No. 12, supra note 12, ¶ 21 subpt. 3.

82. LV035 [Nov. 19, 2014] C20 2745 14.

83. UN Comm. on the Rights of the Child, General Comment No. 12, supra note 12, ¶ 21 subpt. 3.

84. Id. ¶ 8; see also UN Comm. on the Rights of the Child, General Comment No. 4 (2003): Adolescent Health and Development, UN Doc. CRC/GC/2003/4 (July 1, 2003) (discussing general measures of implementation and what such measures entail). This topic has also been elaborated by Lansdown, UNICEF, supra note 54, at 20; Ang et al., supra note 76, at 25; Geraldine Van Bueren, The International Law on the Rights of the Child 132 (Martinus Nijhoff 1998).

85. Lundy, supra note 22, at 937.

86. Lansdown, UNICEF, supra note 54, at 20; Ang et al., supra note 76, at 25; Van Bueren, supra note 83, at 132.

87. Lembrechts et al., supra note 4; Pasquale Maiorano, Il quadro normative, in L’ascolto del minore nei procedimenti giudiziari civili e penali 32–35 (Elena Buccoliero ed., Regione Emilia-Romagna—Difensore civico regionale 2013); Paolo Martinelli, Francesco Mazza Galanti, L’ascolto del minore, in Affidamento condiviso e diritti dei minori 244 (Massimo Dogliotti ed., Giappichelli 2008); Tiziana Amodeo, Sull’ascolto del minore in tribunale, 2016 Judicium 1. While these articles only cover the perspectives of Belgian, Dutch, and Italian judges, it is imaginable that their need for more support and training is transferable to other jurisdictions.

88. SP010 [Mar. 8, 2016] Audiencia Provincial de Barcelona (Sección 18ª) ECLI: ES:APB:2016:2563.

89. Parkes, supra note 19, at 91.

90. Kay Tisdall, Children and Young People’s Participation: A Critical Consideration of Article 12, in Routledge International Handbook of Children’s Rights Studies 191 (Wouter Vandenhole et al. eds, Routledge 2015).

91. Schuz, supra note 3, at 422–23.

92. FI022 [Sept. 15, 2005] Helsingin hovioikeus Päätös 2933; HUN16 [June 6, 2016] Pk.500132/2016; HUN20 [Sept. 14, 2015] Central District Court of Pest 2.Pk.500.188/2015.11; RO006 [Dec. 17, 2007] Bucharest Tribunal 37505/3/2007.

93. Ubertazzi, supra note 26, at 570–71; Schuz, supra note 3, at 423–24.

94. Tisdall, supra note 89, at 196.

95. BG004 [Dec. 14, 2010] РЕШЕНИЕ № 385 ОТ 14.12.2010 Г. ПО ГР. Д. № 218/2010 Г., Г. К., ІV Г. О. НА ВКС.

96. Kruger, supra note 5, at 200; Hoorde et al., supra note 3, at 76–80.

97. UN Comm. on the Rights of the Child, General Comment No. 12, supra note 12, ¶ 24.

98. Id. ¶ 21, subpt. 4.

99. Parkes, supra note 19, at 91.

100. BG040 [Nov. 30, 2015] РЕШЕНИЕ № 2357 ОТ 30.11.2015 Г. ПО ГР. Д. № 3787/2015 Г. НА АПЕЛАТИВЕН СЪД - СОФИЯ; GE010 [Oct. 31, 2008] OLG Stuttgart 17 UF 234/08; GE012 [Mar. 4, 2008] OLG Düsseldorf II-UF 18/08; GE017 [Oct. 12, 2007] OLG Stuttgart 17 UF 214/07; GE036 [Aug. 7, 2008] OLG Hamm 11 UF 135/08; GE041 [Mar. 14, 2017] OLG Stuttgart 17 UF 37/17; GR010 [May 25, 2010] Supreme Court of Greece 916/2010; HUN018 [Dec. 6, 2016] Curia Pk.500132/2016; MA003 [July 27, 2007] 53/2007/1; MA009 Direttur tad-Dipartiment ghal Standards fil-Harsien Socjali vs. Michael Caruana [Aug. 3, 2012] Qorti ta’ L-Appell 15/2012/1.

101. BE026 [Oct. 6, 2011] Rechtbank van eerste aanleg Gent 11/3355/A; SP010 [Mar. 8, 2016] Audiencia Provincial de Barcelona (Sección 18ª) ECLI: ES:APB:2016:2563.

102. UN Comm. on the Rights of the Child, General Comment No. 12, supra note 12, ¶ 24.

103. CR002 [Dec. 2, 2016] Županijski sud u Zagrebu Gž Ob-1456/2016-2; CR004 [July 4, 2017] Županijski sud u Splitu Gž Ob-411/2017; CR006 [May 10, 2016] Županijski sud u Zagrebu Gž Ob-600/16-2; CR015 [June 12, 2015] Županijski sud u Zagrebu 2 Gž Ob-103/15-2; CR017 [Nov. 3, 2017] Županijski sud u Puli Gž Ob-275/2017-2; CR018 [Mar. 29, 2018] Constitutional Court of the Republic of Croatia U-III-5232/2017; CR024 [Aug. 31, 2017] Županijski sud u Zagrebu 2 Gž Ob-911/17-13; CR026 [Oct. 11, 2016] Županijski sud u Zagrebu 13 Gž Ob-1264/16-2; CR027 [June 16, 2017] Općinski sud u Rijeci R1 Ob-649/16; GE035 [July 18, 2006] BVerfG 1 BvR 1465/05; GR008 [July 2, 2012] Supreme Court of Greece; IT006 [July 27, 2017] Cassazione civile 18649/2017.

104. The obligation to respect the national identities of European Member States is guaranteed by art. 4(2), Treaty of the European Union.

105. UN Comm. on the Rights of the Child, General Comment No. 14 on the Right of the Child to Have His or Her Best Interests Taken as a Primary Consideration (art. 3, para. 1), ¶ 89, UN Doc. CRC/C/GC/14 (May 29, 2013), www2.ohchr.org/English/bodies/crc/docs/GC/CRC_C_GC_14_ENG.pdf.

106. FR010 [June 27, 2006] Cour d’appel d’Orléans 06/01084; HUN030 [Mar. 28, 2017] Central District Court of Pest 28.Pk.500.039/2017/27.

107. Pérez-Vera, supra note 29, ¶¶ 16–19.

108. Id.

109. See also UN Comm. on the Rights of the Child, General Comment No. 12, supra note 12, ¶ 27.

110. Art. 21 Brussels IIbis Recast Regulation Recital 39: “Proceedings in matters of parental responsibility under this Regulation as well as return proceedings under the 1980 Hague Convention should, as a basic principle, provide the child who is subject to those proceedings and who is capable of forming his or her own views, in accordance with the case law of the Court of Justice, with a genuine and effective opportunity to express his or her views and when assessing the child’s best interests, due weight should be given to those views.”

111. Ang et al., supra note 76, at 14.

112. UN Comm. on the Rights of the Child, General Comment No. 12, supra note 12, ¶ 21.

113. Parkes, supra note 19, at 35; Gerison Lansdown, Innocenti Research Centre & UNICEF/Save the Children, Florence, Promoting Children’s Participation in Democratic Decision-Making 2 (2001); Herbots & Put, supra note 13, at 181.

114. Lothar Krappmann, The Weight of the Child’s View (Article 12 of the Convention on the Rights of the Child), 18 Int’l J. Child. Rts. 501, 507–508 (2010); Kruger, supra note 5; see a contrario, M. & M. v. Croatia, App. No. 10161/13, Eur. Ct. H.R. para. 185 (2015) (where the European Court on Human Rights decided that “in situations where both parents are equally fit to take care of the child, and the child is, having regard to his or her age and maturity, capable of forming his or her own views and expressing them, the child’s wishes as regards which parent to live with must be respected. . . . [O]therwise the rule that the views of the child must be given due weight would be rendered meaningless.”).

115. UN Comm. on the Rights of the Child, General Comment No. 12, supra note 12, ¶ 21.

116. Parkes, supra note 19, at 92.

117. UN Comm. on the Rights of the Child, General Comment No. 12, supra note 12, ¶ 49 subpts. 3–4, ¶ 134 subpt. (g).