S-LAW had previously published a news article (15 February 2021) to dispel the common misconception that, at the age of 12, a child decides which parent they want to live with.
The new Act of 27 March 2024 containing provisions on the digitalisation of the justice system and miscellaneous provisions, which came into force on 8 April 2024, more broadly enshrines a minor’s right to be heard by the judge in civil family proceedings and sets out the framework within which the hearing must take place.
From now on:
Every minor has the right to be heard by a judge in matters concerning them, with the exception of claims relating to maintenance obligations and purely financial or property-related claims that do not directly concern the minor’s assets
The aim of the Act is to enable the judge to make the most appropriate decision in the best interests of the child, by giving the child as much opportunity as possible to be heard in family proceedings that concern them, whilst ensuring that the hearing takes place in a calm setting appropriate to the child’s age.
A child who has reached the age of twelve is automatically informed, in matters concerning them, by the family court judge of their right to be heard, by receiving a letter at their home address.
They then have the right to agree to be heard, to refuse, or simply not to respond to the judge’s invitation, which will be regarded as a refusal.
As regards minors under the age of twelve, the new legislation provides that their legal representatives are to be informed by the judge of the possibility that the minor may be heard.
Nevertheless, the judge retains the discretion to accept or refuse to hear a child under the age of twelve, provided that the decision is justified by the circumstances of the case.
The procedure for the hearing of the child by the judge has also been revised, as the child now has the right to be accompanied by an adult of their choice during the hearing (this person may not be someone involved in the proceedings or a relative up to the second degree of either party, with the exception of the minor’s brothers and sisters whose parentage is established in relation to the same parents).
During this hearing, the judge must remind the minor:
- The purpose of the hearing, which is to enable the minor to raise their concerns with a view to helping find the most appropriate solution in their best interests.
- To explain that the judge is not responsible for resolving the dispute.
- Remind them that their requests will not necessarily be granted.
- Inform them that the parties will be able to view the report but that they have the right to specify that all or part of the information they provide is confidential. Confidential information will not be included in the report but may be passed on to the public prosecutor’s office.
The courts in Liège already apply this principle in practice, and the child is informed during their hearing as follows:
The judge introduces herself and explains that, in principle, it is up to the child’s parents to decide on the arrangements for the child’s living arrangements with each of them, but that, given the conflict between them, they have asked her to make a decision. It is therefore not the children who will decide, but she who will do so. In order to enable her to reach a decision that is in the child’s best interests, the judge would like to question the child, but she will not ask the child to state a preference.
She informs the child that their statements will be recorded in a written report and that their parents may have access to it.
Finally, the new Article 1004/3 of the Code of Civil Procedure also provides that the judge must act upon any correspondence from the minor until such time as a final decision has been taken on the matter in dispute on which the minor has been heard, and must reply to it in an appropriate manner.
Whilst the child’s views are important, the fact remains that the child does not make the decision, and the child’s parents are asked to explain the judge’s decision to the child, taking into account the child’s level of maturity (paragraph 7 of Article 1004/1).
