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March 26, 2024 International Law

A Child's Right to be Heard

By: Melissa A. Kucinksi, Frances Goldsmith, and Andreas Hanke

Of vital importance to a U.S. family law practitioner is to ensure that they become familiar with the other country’s procedures for hearing children whenever they have a children’s case that touches upon another country.  When a judge in that other country is reviewing the U.S. state custody order to determine whether to recognize and enforce its terms, that judge may also be looking at how the child’s views were incorporated into the U.S. state custody proceeding so that the other court can ensure it meets its mandate to protect a child’s right to express their views in matters that affect them.

The U.S. Perspective (Melissa A. Kucinski)

As the only country that is not a Contracting State to the United Nations Convention on the Rights of the Child, there is no international obligation incumbent on the United States to insure that children capable of forming their own views may express those views freely in family law matters that affect them (art. 12).  All U.S. states, however, have incorporated into their state law different requirements for children to be heard, including in custody cases. For example, in the District of Columbia, D.C. Code § 16-914(a)(3)(A) mandates a court, in determining a child’s best interest in their parents’ custody case, to consider “the wishes of the child as to his or her custodian, where practicable…”.  Each U.S. state also has a variety of procedures by which to elicit the required information from a child, although each state may vary in its resources, training, and the litigants’ access to the different procedures.  

Of vital importance to a U.S. family law practitioner is to ensure that they become familiar with the other country’s procedures for hearing children whenever they have a children’s case that touches upon another country.  When a judge in that other country is reviewing the U.S. state custody order to determine whether to recognize and enforce its terms, that judge may also be looking at how the child’s views were incorporated into the U.S. state custody proceeding so that the other court can ensure it meets its mandate to protect a child’s right to express their views in matters that affect them. Make an assessment early in your case as to what procedures are available to you, whether it is to have a professional interview the child, have a lawyer appointed to represent the child, or request and structure an in-chambers interview of the child.  Your assessment will be based on resources, due process protections, and the impact it will ultimately have on the child. 

The French Perspective (Frances Goldsmith)

Texts defining a child’s right to be heard - The International Convention on the Rights of the Child, also known as the New York Convention, of 20 November 1989 (known as the CRC), was the first international text to explicitly enshrine the right of a child, capable of forming his or her own views, to be heard in any legal proceeding concerning him or her (article 12). While the French Supreme Court of Cassation first held that the CRC was not directly applicable in domestic law and therefore does not have a normative value in French law (Civ. 1re, 10 March 1993, no. 91-11.310), it reversed its position in 2005 and ruled that the provisions may be directly applied by the French courts.  It is none the less an important international guideline.

At the European level, the 1996 European Convention on the Rights of the Child sets out the right of minors who are capable of forming their own views to be consulted and to express their views in all legal proceedings affecting them (article 3). Article 24 of the EU Charter of Fundamental Rights of 7 December 2000 also reiterates this right. Furthermore, the ECHR has consecrated the child's right to be heard in proceedings concerning him or her in application of Article 8 of the ECHR (ECHR 3 Sept. 2015, M. and M. v/Croatia, req. no 10161/13).

Most importantly, the Brussels II ter Regulation, which came into effect on 1er July 2022, provides that the courts of a Member State must “provide the child who is capable of forming his or her own views with a genuine and effective opportunity to express his or her views, either directly, or through a representative or an appropriate body” (Article 21).The courts must also give due weight to the opinion expressed by the child in accordance with his or her age and maturity.

In French law, the right of minors to be heard by courts was enshrined in Law no. 2007-293 of 5 March 2007 and which was codified in Article 388-1 of the French Civil Code. The various local bar associations in France have specified the particular procedure necessary for hearing minors. For example, the Paris Bar Association adopted a Convention on improving in the testimony of children in 2011. The Family and Personal Status Department of the civil courts also adopted a protocol of good practice in April 2023.

Process under domestic law - Before the French courts, discerning minors are heard by right (C. civ., art. 388-1). However, only discerning minors may be heard. The lack of discernment on the part of the minor is a general ground for refusal of a hearing by the judge. Discernment is not only related to age (Cass. 1e civ. 18 mars 2015 n° 14-11.392 : BPAT 3/15 inf. 85), but also if a child is heavily influenced by one of the parents (Civ. 1re, 12 avr. 2012, no 11-20.357).

The minor may ask to be heard at any stage of the proceedings. The provisions of article 388-1 of the Civil Code stipulate that the family court judge must ensure that a child capable of discernment has been informed of his or her right to be heard and assisted by a lawyer during the hearing. The judge must ensure this in all proceedings involving a minor. To ensure that effective information is provided on the provisions relating to the hearing of minors, article 388-1 of the Civil Code must be included as a mandatory reference in applications, writs of summons and agreements. Lawyers will also have to attach, during the proceedings, a form on which the minor who has reached the age of discretion declares whether or not he or she wishes to be heard by the judge during the proceedings. The request for a hearing may be made at any time during the proceedings.

When the minor asks to be heard by the judge, he or she may be assisted by a lawyer or a person of his or her choice. When the minor asks to be assisted by a lawyer, the judge refers the matter to the President of the Bar so that he can appoint a specialist lawyer. In principle, the court clerk's office must allow a period of 15 days between the request for appointment and the hearing of the minor, to give the lawyer and the child time to meet.

Recognition and enforcement of judgments - Article 39 of the Brussels II ter Regulation provides that “The recognition of a decision in matters of parental responsibility may be refused if it was given without the child who is capable of forming his or her own views having been given an opportunity to express his or her views in accordance with Article 21, except where: (a) the proceedings only concerned the property of the child and provided that giving such an opportunity was not required in light of the subject matter of the proceedings; or (b) there were serious grounds taking into account, in particular, the urgency of the case”.

The German Perspective (Andreas Hanke)

Pursuant to Sec. 159  I of the German Family Procedure Code (FamFG) the court shall conduct an in-person hearing of the child and obtain a personal impression of the child in any proceeding related to the child (e.g. child custody, visitation and access proceedings). A personal hearing means a conversation between the judge and the child in the presence of both parties. A written communication or a telephone call, or video call (Skype/Facetime or similar) with the child does not meet these requirements. The focus of the hearing is on the personal interview: the child should have their say and be able and allowed to express themselves without being influenced by the parents, the youth welfare services or the guardian. While the hearing focuses more on the court's conversation with the child in order to give the child the opportunity to make a statement, the impression that the court must form of the child is more about methods of visual inspection and about drawing conclusions about the child's state of mind, wishes, inclinations and attachments from the child's behavior. The Court may forego such an in-person hearing, only when there are substantial grounds therefor, the child is obviously not in a position to make his preferences and desires known or if the preferences, relationships or desires of the child are insignificant to the decision.

The hearing of the child takes place in a separate room next to the Court room, either immediately before the evidentiary hearing or after it. In some cases, where the children shall not meet the parents the hearing will take place on a different date than the actual Evidentiary hearing. The judge will notify the parents (and parties in the proceeding) about the hearing of the child.

The most controversial issue is the age of the child, or differently phrased, that there is no minimum age for a child to be heard. The law is clear, every child no matter the age shall be heard by the Court.

The importance of the voice of the child increases with its maturity. The older and more mature the child the more weight has the voice of the child. The role of the child bears the risk that the child is exposed to manipulation by the parents as the parents obviously want their position to be reflected in the child voice. This could result in an over-burdening of the child. 

    Frances Goldsmith

    Attorney

    Paris, France

    Libra Avocats

    Andreas Hanke

    Attorney, Dr.

    Berlin, Germany

    SAWAL . SCHÜLLER . HANKE

    Melissa Kucisnki

    Esq.

    Washington, D.C.,

    MKFL International Family Law

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