Chapter 6 - Weight Accorded to the Child’s Views

Summary

‘The right of a child to express his or her own views should not be interpreted as effectively giving an unconditional veto power to children …’

– ECtHR, K.B. and others v. Croatia (2017)

Introduction

Once a child has been given the opportunity to express his or her views in a family law proceeding, a court is tasked with deciding on the matter and, in doing so, must take into account the views of the children. In the process of child participation, giving due weight to the views of the child is the second step following the child’s participation or, more precisely, expression of views. The topic of according weight to the child’s views is equally important as the topic of (in)sufficient participation addressed in the previous chapter, even though it is a subsequent step. Without participation, according weight is not possible, but without according weight to the views of the child, participation is simply the expression of views, not being ‘heard’. As stipulated by Article 12 of the United Nations Convention on the Rights of the Child (UNCRC), due weight has to be given to the child’s views.

What is meant by ‘due weight’ and how should weight be accorded to a child’s views in family law proceedings? This chapter examines these questions within the European Court of Human Rights (ECtHR) case law. Various perspectives are addressed: the complaints applicants raise with regard to the weight granted to the child’s views; the manner in which governments stand by the decisions taken domestically; and the reasoning of the ECtHR regarding the weight accorded to children’s views. The latter is especially important in answering the question of whether and how due weight should be accorded to a child’s views in family law proceedings. Bundling together the ECtHR’s consideration of various cases, each with differing circumstances, provides the necessary information to determine the standards set by the Court. These standards will add to the international and European framework, and a clear and comprehensive understanding of them will assist in aligning and strengthening this framework.