Presentation on theme: "Hearing the child and taking account of his or her best interests: what do lawyers know? Thalia KrugerRome, 24 October 2014"— Presentation transcript:
Hearing the child and taking account of his or her best interests: what do lawyers know? Thalia KrugerRome, 24 October 2014
2 Framework Hague Convention 1980 (Art. 13,2): Court may refuse return if it finds that the child objects, and age & maturity at which appropriate to take account of its views
3 Framework Brussel IIbis : Recital 19: The hearing of the child plays an important role in the application of this Regulation, although this instrument is not intended to modify national procedures applicable. Art 11,2: Child must be given opportunity to be heard, unless inappropriate having regard to his or her age or degree of maturity
4 Framework Convention on the Rights of the Child (CRC, 1989): Art. 12(1): Child capable of forming views has right to express those views freely in all matters affecting child And due weight must be given, in accordance with age and maturity of child Art. 12(2): All judicial proceedings affecting child directly or through representative
5 Framework Convention on the Rights of the Child (CRC, 1989): Art. 9(1) and (2): Child must not be separated from parents against their will, except through proper proceedings Child must be given opportunity to participate in proceedings
6 Framework EU Charter of Fundamental Rights Art. 24(1) Children has right to protection and care as necessary for well-being. Children may express views freely. Views taken into consideration on matters which concern them in accordance with their age and maturity.
7 Framework Hague Conference Special Commission Conclusions & Recommendations 2006: Child must be given opportunity to be heard in return proceedings, unless inappropriate given child’s age or degree of maturity
8 Content of the right to be heard Two aspects: 1.Hearing the child 2.Giving due weight * Separate!
9 When must the child be heard? Child capable of expressing view Age? -Some States have age limit
10 How must the child be heard? Directly By judge In court / chambers Appropriate environment? Indirectly By social worker Reporting to judge Beware of filter-effect
11 How must the child be heard? Opportunity to explain to child Return versus custody dispute
12 National examples In Re D  (UKHL) -Child can form opinion: must be taken into account O’D v O’D  Ireland High Court -Training and guidelines N v N  Ireland High Court -Right to be heard & weight: separate issues -Child must be heard also in context of Art. 12 HC Bu v BE  Ireland Supreme Court -Child under six should not be heard (depending on circumstances) Tribunal Breda, 19 November 2009 Netherlands -Parents have not shown that child (10) mature enough -Child in loyalty conflict: not heard
13 Harmonisation CRC: unified obligation Brussels IIbis: -no harmonised procedure -Harmonisation through enforcement (Art. 23b) (not for child abduction but general)
14 Possible improvement Certificate (Annex IV) -11. The children were given an opportunity to be heard, unless a hearing was considered inappropriate having regard to their age or degree of maturity Unclear! ECJ C-491/10PPU Aguirre Zarraga v. Pelz Was child given opportunity to be heard?
15 Possible improvement Certificate (Annex IV) Proposed amendment: -11.a) Was the child heard? yes □ no □ -11.b) If no, reason: __________________________
16 Possible improvement Explicit reference in Brussels IIbis (Preamble) to CRC for best interests More emphasis on rights of child in all instruments
17 Possible improvement Mediation -Encouraging, ensuring enforcement -Ensuring rights of child in mediation!
18 Possible improvement Training for judges and court officials Interdisciplinary research and training Guides to good practice Codes of conduct