Hear me! Improving child participation in family and child protection proceedings
The UN CRC states that children have the right to be heard in all matters affecting them. How is this right implemented in legal proceedings and daily practice in family and youth courts, and what can be improved?
Children have a right to participate in legal proceedings, such as family and child protection proceedings. According to Article 12 of the UN Convention on the Rights of the Child (CRC), children have the right to freely express their opinion on all issues that concern them. The views of the child must be given due weight in accordance with the age and maturity of the child (Article 12(1) CRC). The child must be given the opportunity to be heard in any legal proceedings affecting it (Article 12(2) CRC). Age limits can be used, but according to the Committee on the Rights of the Child, they cannot be absolute and age limits should leave room for younger children to have the opportunity to be heard by the judge. The CRC remains silent about the child’s right to (independently) initiate proceedings. But from other international standards it can be deduced that children who are confronted with legal proceedings are entitled to child-friendly proceedings and also have the right of access to justice and the possibility to challenge court decisions that are relevant to them.
In Dutch family and child protection proceedings, children are not competent to participate autonomously as litigants. The principle is that the child’s interests are safeguarded by his or her legal representatives: the parent(s) with parental responsibilities or the legal guardian(s). When the child’s interests are in conflict with the interests of their legal representatives, the judge can appoint a guardian ad litem for the child. Even though children lack competence to participate autonomously in civil law proceedings, they do have to be involved in family and child protection proceedings. Children aged twelve years or older have the right to be heard according to the Dutch Code of Civil Procedure. Is there a need for improvement of the child’s procedural position in family and child protection proceedings?
This question was answered in a research report commissioned by the Dutch Ministry of Justice and Security and was conducted by a multidisciplinary research team from Leiden University. The position of children in family and child protection proceedings was analysed from a global and domestic legal perspective. Furthermore, a literature study with insights from pedagogical sciences and neuropsychology was conducted to gain insights with regard to the procedural position of children. Another important part of the research project consisted of an empirical study focusing on experiences with hearing children and their procedural position. In this study, the experiences, needs, and opinions of professionals in legal practice were analysed, on the basis of information from questionnaires (272 respondents: 40 judges, 41 lawyers, 149 social workers, 26 guardians ad litem and 16 employees of the Children and Youth Law Centres) and interviews. The experiences of children and parents were collected through questionnaires (136 adolescents aged 16 to 24 years old, 131 parents and caretakers).
How do child hearings unfold in practice? Children aged twelve years and older are invited for a child hearing via a standard invitation letter and have a right, and not a duty, to be heard. Judges prefer to hear children directly, even though an expert (from the Child Protection Directorate or a certified care institution) has often spoken with children before the hearing and this information often reaches the judge. Adolescents also indicate that it is important to speak with the judge in person. The duration of the child hearing in family matters (including custody and access rights) and in child protection cases (including supervision and out-of-home placement) varies. In family law cases, about 15 minutes are available for a child hearing. In child protection cases, it appears that much less time is available for a child hearing and these conversations usually last five minutes. The location for the child hearing also varies; sometimes the child hearing takes place in a special child-friendly room, sometimes in the courtroom and sometimes in the court chamber. Often the child speaks only with one judge and the clerk, but sometimes several judges are present during the child interview. It also appears that there is a current need among some adolescents to take a support person to the child hearing, though this is not common practice.
The degree to which the child’s opinion is taken into account varies between judges. Judges have indicated that the opinion is taken into account more strongly when the child is older, and that this can be dependent on the type of case. In general, the majority of adolescents have indicated that they had a good feeling about the conversation they had with the judge. They had a strong feeling that they were taken seriously during the meeting.
Children do not often receive feedback about the decision. Judges mainly see practical problems with regard to feedback concerning the decision and the use of child-friendly judgments. Furthermore, the provision of information before the child hearing is not always sufficient. When adolescents were asked what they were not satisfied with regarding the right to be heard, they often replied that they would like to be better informed about the procedure and the child hearing. When asked what made them most nervous when they went to court, lack of information was also mentioned.
Furthermore, the empirical study shows that the child hearing is often stressful for a child. However, adolescents do not give this as a reason for them not to use their right to be heard. One reason that could make the child hearing stressful, is the possibility of bumping into a parent or problems being raised while the situation has just become stable, which can indirectly be strenuous. Half of the group also thought that expressing a personal opinion to the judge may impact negatively on the relationship with their parents. Nevertheless, adolescents do underline the importance of the child hearing. Almost all adolescents indicated that they thought it was important to give their opinion. This interest must therefore have outweighed the perceived negative effects.
Hearing children under twelve years of age is practically non-existent in the Netherlands. The age limit of twelve years is strictly adhered to and children younger than twelve years of age are hardly ever heard, or not at all. This does not alter the fact that in current practice, initiatives have been taken in recent years that have opted for a lower age limit to hear children (The Hague Court in child abduction cases: all children of six years of age and older; and the Amsterdam Court in family and child protection cases: all children of eight years of age and older).
It follows from the abovementioned research that the formal procedural position, the right to be heard and the support of children in family and child protection proceedings all need to be improved. With regard to the formal procedural position, there is a lack of a well-considered, accessible and clear system. There are numerous exceptions to the principle that children are not able to participate autonomously in legal proceedings, and civil law also deviates from the legal position of children in other areas of law. With regard to the right to be heard, it has been found that the legal exception to be able to hear children under the age of twelve years of age at their request is hardly ever applied in practice. With regard to the support of children in family and child protection proceedings, it has been found that there is no guarantee for children that a request for the appointment of a guardian ad litem will be granted. From the results of relevant (neuro)psychological and pedagogical scientific research, it is clear that the procedural position of children and their right to be heard in family and child protection proceedings needs improvement. With regard to the child’s right to be heard, the study shows that language comprehension and production of children is not an obstacle to lowering the current age limit of the child’s right to be heard: around the age of four, children are able to understand and produce complex sentences. In the context of possible loyalty conflicts, it is also important that children from the age of eight understand that it is possible to experience both positive and negative emotions on one subject (or person). Since around this age the cognitive development of children has also undergone a major leap forwards, especially with regard to logical reasoning, it is possible to hear children from the age of eight. All groups of respondents, including adolescents and children, endorse a lower age limit for children to be heard.
The age limit for hearing children in family and child protection proceedings should be lowered to 8 years of age; children from the age of 8 should be invited for a child hearing. The possibility of taking a counsellor to the child hearing should become standard practice. The possibility should also be explored to make support by a guardian ad litem possible (more often) for children, who so wish, in these proceedings without strict requirements being imposed on them. It is important to clearly define the role of the guardian ad litem. In addition, based on the research results, the possibility for the judge to hear children between four to eight years old should be explored in a pilot study.
Furthermore, children from the age of 12 should receive party status for issues related to parentage, adoption, divorce, custody, access rights, and child protection. This means that they can independently – without the intervention of a legal representative or guardian ad litem – initiate such proceedings and are also authorized to autonomously appeal against a judgment. Children from 12 to 18 years of age should be competent in litigation with regard to the aforementioned subjects and should have locus standi with legal representation.
For the effective participation of children in family and child protection proceedings, it is not only important that changes are made to the age limit for the right to be heard and the independent access to justice for children, but it is also necessary to improve context factors. Continuous attention should be paid to effectively informing children about their rights with regard to family and child protection proceedings. In line with this, children must also be better informed prior to the hearing about the content of the proceedings and the general course of affairs at the court. Besides this, the court should summon children in a child-friendly manner; further investigation is desirable to consider (more modern) alternatives to the invitation letter from the court. It is also suggested introducing child-friendly waiting rooms and meeting rooms in court. More attention should be paid in this context to unwelcome encounters between children and other involved parties during court proceedings. Sufficient time should be made available for a conversation between a child and a judge; this means that investments must be made in a longer period of time for these child hearings. Continuous attention and investment are also needed for regular extra training of judges who hear children in court. In every court ruling that concerns family or child protection decisions, it must be made clear how the opinion of the child has influenced the court decision. Finally, child-friendly case law – the writing of a separate recital in the judgment specifically addressed to the child or the writing of an entire judgment in child-friendly language – should be encouraged.
See (Dutch) research report with English summary.