Every child has the right to be heard before the authorities and courts in situations that affect his/her interests. This helps to endure that the child’s best interests are observed in each individual case.
Importance of a child’s opinion
A child’s opinion may play a crucial role in the decision-making process. The competent authority or court will take it into account and evaluate the child’s best interests in each particular case.
example A child who has reached 10 years of age is heard by a court in adoption cases. The child’s objections against the particular adopters, or separation from his/her siblings as a result of adoption, are very important.
The child’s opinion will not always be decisive, as there may be situations when his/her wishes may not correspond to his/her best interests. However, if the state authorities take a decision contrary to the child’s opinion, such a decision has to be well-reasoned.
example If there is a serious threat that the parents are, and will continue to be, violent or neglectful, the authority may decide to separate the child from the family, notwithstanding his/her wish to be cared for by the parents.
Right to be heard
A child’s views may be ascertained by hearing him/her directly. Where this is not possible or the law explicitly allows it, the child may be heard through his/her representative, such as the parent or legal guardian.
A child has a right to be heard before the court in cases that affect his/her interests. Proceedings where the child is usually heard relate to:
- parental custody over a child, its suspension or withdrawal
- parental access rights and restrictions
- a child’s return to a family after separation
- a child’s return to family after unlawful removal to another country
- adoption
Conditions & Restrictions
The right to be heard is not an absolute right. The state institutions or courts may not be required to hear the child personally, but this depends on the circumstances of each particular case, as well as the age and maturity of the child.
example In cases concerning a child’s custody and parental access rights, the court hears the child, if he/she is mature enough to formulate an opinion. A child’s views and wishes should be particularly respected if he/she is an adolescent.
In certain situations, a direct hearing and the questioning of a child may not be suitable or even pose risks to his/her emotional stability and health. Therefore, instead of a direct hearing of the child’s views, an expert’s opinion reflecting the child’s views may be used as evidence. In these cases, the expert may have a personal meeting with the child to ascertain the child’s views.
example An expert’s opinion, like that of a psychologist, may be used if the child has suffered from violence or sexual abuse and direct questioning may pose risks to the child’s emotional stability. In a similar way, an expert opinion may be used to ascertain the views of a child who has been illegally removed from his state of residence, about a possible return.