The Belgian legislation regarding the right of minors to be heard has recently undergone significant changes aimed at giving more weight to the child’s voice in legal proceedings concerning them. The following provides an overview of the key regulations and changes:
Can a minor be heard on everything?
In most cases involving minors, they have the right to be heard, except in financial matters that do not concern their assets or maintenance contributions. The purpose of this right to be heard is to allow the minor to express their concerns and needs directly to the judge and thus contribute to finding a suitable solution in their best interest.
A notable addition to the law is that now, if desired, the minor’s siblings can also be heard about housing arrangements. This is in line with the ruling of the Constitutional Court of April 21, 2022.
From what age can a minor be heard?
The law provides for a distinction depending on whether the minor has reached the age of twelve:
The judge informs children under twelve years old about their right to be heard, how the hearing takes place, and whether their request is accepted or rejected.
Children under twelve years old are not automatically informed by the judge. They are heard at their own request, by the parties, the public prosecutor, or ex officio by the judge. The legal representatives of the child (usually the parents) are informed by the judge that the child can make a request themselves. The judge can refuse a request for a hearing with motivation, unless the request to be heard comes from the minor themselves or from the public prosecutor.
Is the minor heard alone?
The minor’s hearing takes place at a suitable location and can be attended by the court clerk and/or an adult confidant if the judge agrees. The minor can choose this confidant themselves, except for their parents, who are parties to the case, and their family (up to the second degree). The minor’s siblings are not covered by this exception.
The minor also has the possibility to designate certain information as confidential. This information is not included in the written report of the hearing but can be communicated to the public prosecutor.
Is the minor a party to the proceedings?
It is important to emphasize that a minor has the right to be heard and not the right to make decisions. The hearing of the minor does not mean that they become a party to the dispute. The judge only considers the minor’s opinion, appropriate to their age, maturity, and any external influences.
The minor and their legal representative have access to the conversation report if it is not confidential. In addition, they only have access to the family file if they are parties to the dispute.
Can the minor also be heard in cross-border family disputes?
At the European level, the Brussels II bis Regulation entered into force on August 1, 2022, establishing clearer rules on the possibility for the child to express their opinion. This is to protect children in cases of cross-border disputes over parental responsibility, for example, in the context of international child abduction. Even in those circumstances, the child has the right to be heard and express their opinion.
Every court that is a member of the regulation must ensure that the child is given the opportunity to express their opinion, either directly or indirectly.
Do you have further questions about your child’s voice and its place in the context of (international) family proceedings? We are happy to assist you further.
