Child’s right to be heard in family cases

“Direct contact between a court and a child is necessary for the full recognition of a minor’s subjectivity and obtaining of insight into their individual perspective”, emphasises the Helsinki Foundation for Human Rights in an amicus curiae brief on a child’s right to be heard in a foster care civil case.

The HFHR has filed the amicus curiae brief with the District Court in Ł. in the case of X.Y., a minor. The proceedings concerned termination of Y.’s foster family and his placement in another family.

“We have noted that in these proceedings the court had collected many documents from different institutions, taken testimony of witnesses and foster parents, and obtained two evaluation reports from a family diagnostic and consultation centre. However, the court has failed to hear the minor directly, despite the fact that the extensive body of expert evidence collected in the case did not unequivocally explain what measures should be taken in order to best protect the interests of the child or what the minor preferences are in this respect”, says Joanna Smętek, a lawyer working with the HFHR.

The Helsinki Foundation reiterates that a child’s right to be heard has been guaranteed in the Constitution of the Republic of Poland and Convention on the Rights of the Child. Also, the Code of Civil Procedure expressly provides that courts should hear children in cases that involve them. “The European Court of Human Rights recognises in its jurisprudence that a child’s opinion must be taken into account in resolving matters concerning the child. A court’s failure to hold a child hearing or obtain a psychological evaluation of a child’s opinions may violate Article 8 of the Convention”, HFHR legal expert Małgorzata Szuleka explains.

According to international standards invoked by the HFHR a child hearing may take an indirect or direct form. In Poland, children are frequently evaluated in family diagnostic and consultation centres; such an evaluation is an indirect type of a hearing. “In our brief, we point to different functions of each type of the child hearing. The purpose of an evaluation at an FDCC is to assess the relationships and bonds between a minor and their family and environment, while the primary objective of a judicial hearing is to enable a child to express their opinion on a given issue”, Ms Smętek clarifies. “The best interests of the child will be best protected when both forms are used because this is the best way to obtain a full picture of a case”, she adds.

Children’s participation in justice has been a long-standing focal point of the HFHR’s concerns. In 2012-2014 the Helsinki Foundation for Human Rights partnered with the European Union Agency for Fundamental Rights in conducting an extensive survey on child-friendly justice. The research’s objective was to identify the practices of child hearings in criminal and civil proceedings (for more information on the subject, follow this link).