Children have the right to be heard by the court
The basic principle of the right to be heard for minors can be found in Article 1004/1 of the Judicial Code and sounds as follows:
‘Every minor has the right to be heard by a judge in matters concerning him except for claims relating to maintenance obligations and purely financial or property claims that do not directly affect the minor's assets. He has the right to refuse to be heard.’
A minor thus has the right to be heard, but on the other hand, the minor also has the right to refuse to be heard.
In addition, the minor's right to be heard differs depending on whether he/she is under the age of 12 or not. From the age of 12, the judge will always invite the child to be heard. Under the age of 12, this is not the case.
We discuss both situations below in this Wanted Fact.
Children under twelve years old
The law does not exclude children under 12 from being heard by the court as well. Unlike those over 12, a minor under the age of 12 can only be heard if someone requests it. The request can come from the minor himself, the parties to the proceedings (usually the parents) or the prosecution. The judge can also request to hear the minor, this is the so-called ‘ex officio hearing’.
The hearing right of the minor under the age of 12 is less absolute than that of the minor aged 12 or older. The judge can refuse the request to be heard, except when the request comes from the minor himself or from the public prosecutor. In case of refusal, the judge must always give reasons why.
Children twelve years old or older
From the age of 12, the minor always gets the opportunity to talk to the judge. After all, the law requires the judge to inform the minor over 12 of his/her right to be heard.
However, the minor is not obliged to accept the invitation to a hearing. It is the minor's free choice to exercise his/her right to be heard.
In addition, the court is not obliged to hear the minor if the minor has already been heard during the course of the proceedings, for example in the first instance. But when there is a new element that warrants a hearing, the judge is again obliged to hear the minor.
What does the judge discuss with the minor?
The judge only hears the minor on matters relating to the home situation and its organisation, such as the exercise of parental authority, residence arrangements and the right to personal contact. About financial arrangements, the judge does not speak to the minor.
The hearing takes place in the family court, often in a separate room, in the presence of the judge and the registrar. Parents or other family members may not be present at the hearing. The minor may appoint his/her own person to follow the interview, but this person may not be a parent or grandparent
The registrar draws up a report of the interview between the judge and the child, which is attached to the case file. The lawyers and parents can consult the report afterwards. This report faithfully reflects what the minor has said. However, the minor can also ask for certain things not to be included in the report. In that case, the judge will respect this and will not make any mention of it. The minor can even ask for the entire conversation to be kept confidential. In that case, there will be no record of the conversation between the judge and the minor!
What are the consequences of the hearing for the minor?
The minor never becomes a litigant in the proceedings in which he is involved as a minor child, including through his hearing. Thus, the child cannot request certain matters to which the judge must then reply with reasons, or appeal the judge's final decision.
The judge will take his opinion into account and do so in accordance with his age and maturity. By this, the legislator means that the child has no right of veto. The judge will take into account the child's opinion, but does not have to follow it. The judge will make a decision in accordance with the law and taking into account all views in the file, but always in the best interest of the child.
Contact Wanted Law!
Do you still have questions about the hearing rights of minors, or are you yourself involved in family court proceedings in which children need to be heard? Contact us without obligation! We may be able to help you further.