INTRODUCTION

When their parents are in conflict, children may be confronted by a myriad of family law proceedings. Following divorce or separation, proceedings on the exercise of parental responsibilities affect the children involved. One of the core rights children have in these family law proceedings is the right to be heard and the more extensive right to participate. This right originates from Article 12 of the UN Convention on the Rights of the Child 1989 (UNCRC). Increasingly, European human rights instruments also provide the right to participate. Consider the European Convention on the Exercise of Children's Rights of 1996 (ECECR) or more recently, the 2010 Guidelines on Child-Friendly Justice. The accumulation of international and European human rights instruments dealing with the right to participate has strengthened the right, but has also led to diverging concepts. This makes it an exciting area for comparison.

An obvious example of the difference between instruments are the maturity requirements linked to the child's right to be heard in family law proceedings. These requirements vary from sufficient capacity, capability, understanding or maturity, to age limits or explicitly no age limits. This chapter will present a vertical comparison of these requirements in the corpus of international and European human rights instruments. More specifically, this chapter addresses and attempts to explain the similarities and differences between the requirements in the UNCRC and in the case law of the European Court of Human Rights (ECtHR). In addition, the compelling question will be addressed as to what the implications of the divergence of norms are for the European jurisdictions bound to these human rights norms. When providing children a role in family law proceedings in Europe, compliance with existing children's rights must be ensured. This chapter will provide an overview of the different standards and the potential associated problems and will thus provide some clarity regarding the norms European states have to meet.

In the first section the maturity requirements for the child's right to be heard as provided by Article 12 UNCRC and the case law of the ECtHR will be set out. Subsequently, these requirements will be compared and the similarities and differences will be explained. In the conclusion, the implications of the comparison will be addressed.