Children’s Access to and Participation in the Family Justice System in France: Limits, Paradoxes and Recommendations

Summary

INTRODUCTION

Since minor children are subject to parental authority, it is their parents who make decisions relating to them. If the child is capable of acting with discernment , their parents are required to involve them in their decisionmaking. This principle flows from Article 12 of the Convention on the Rights of the Child (CRC),2 which establishes the right of the child to participate in decisions that concern them, if they are capable of forming their own views. The Committee on the Rights of the Child has raised the child’s right to be heard to the status of a general principle of the CRC, in the same way as their right to have their best interests constitute a paramount consideration for all decisions concerning them The Committee has emphasised the importance of the child’s participation, highlighting it as a prerequisite to the decision-making that make the best interests of the child a paramount consideration. Thus, the child is considered one of the best experts for their needs and interests.

A child’s right to take part in decisions regarding them has been integrated into the French Civil Code, among the provisions regarding parental authority, which call upon the parents to involve their child in the decisions concerning them, according to their age and level of maturity. The parents are the prime guarantors of the child’s participation in family decisions that concern them and, as a result, of respect for their best interests. That being said, the statistics of the Ministry of Justice suggest a trend toward the judicialization of family relationships, with the result that the decisions bearing on the daily life of the child, on their place in their family, and on their family relationships, are ever more frequently taken in the context of legal proceedings in which their parents are adversaries. This trend leads one to wonder about Children’s access to and participation in the family justice system, in particular with regard to family court, to which French law confers the jurisdiction for hearing actions related to the exercise of parental authority.