The Right of the Child to be Heard in Parental Responsibility Proceedings

Summary

INTRODUCTION

The child's right to be heard is considered in a number of international and national laws, including: the European Convention on Human Rights 1950 (Article 6); the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (Article 13); the Convention on the Rights of the Child 1989 (Article 12); the Charter of Fundamental Rights of the European Union (Article 24); the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (Article 23); the European Convention on the Exercise of Children's Rights of 25 January 1996 (Article 3); Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No. 1347/2000 (recitals 19 and 33; Articles 11 and 42). The latter instrument, Regulation No. 2201/2003, guarantees respect for the fundamental rights of the child as established in Article 24 of the Charter of Fundamental Rights. It gives importance to the child being heard, as it requires an opportunity for him or her to be heard during the proceedings ‘unless this appears inappropriate having regard to his or her age or degree of maturity’.

A proposal for a Council Regulation (EC) No. 2201/2003 has recently been presented (on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and matters of parental responsibility, and on international child abduction (recast) (COM(2016)0411 – C8-0322/2016 – 2016/0190(CNS)); the proposal establishes the right of the child to be heard in all proceedings on divorce and legal separation, marriage annulment and parental responsibility), and in its section III of Chapter II it establishes the right of the child to be heard in all proceedings on divorce and legal separation, marriage annulment and parental responsibility.

Both the current Regulation (EC) No. 2201/2203 and its proposal must be interpreted in the light of the Charter of Fundamental Rights of the European Union. We can say that the right of the child to be heard is considered to be an obligation, compliance with which, in the European Union, means ensuring this is done by the judge of the state that delivers the judgment, without any other state being able to control the action of the judge of origin.