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Belgium
- Edited by Wendy Schrama, Marilyn Freeman, Nicola Taylor, Marielle Bruning
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- Book:
- International Handbook on Child Participation in Family Law
- Published by:
- Intersentia
- Published online:
- 10 December 2021
- Print publication:
- 29 July 2021, pp 103-120
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- Chapter
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Summary
INTRODUCTION
This chapter provides an overview of child participation in the legal context of post-separation family proceedings according to Belgian law. In the Belgian family justice system, disputes during or after a separation or divorce in which children are involved fall under the competence of the family courts. The family courts consist of family chambers and chambers of friendly settlement, in which the judge seeks to bring the parties to an agreement. The family courts are competent for a variety of matters, which include adoption and filiation matters, proceedings concerning parental authority, residence arrangements, contact with the child and alimony.
About 36% of the Belgian population consists of married men and women, while 9% are divorced. 20% of the Belgian population are minors. In 2018, 45,059 marriages were registered in Belgium, as well as 23,135 divorces. In the same year, in the Flemish Region, nine out of 1,000 couples divorced. In the Walloon Region, this number was 12 out of 1,000, and in the Brussels Region 29 out of 1,000. The numbers were higher in 2000 and 2010. In 2014, it was estimated that in Belgium, children were involved in two out of three divorces.
Furthermore, in 2018, 38,921 partnerships were registered and 25,852 registered partnerships were dissolved. There are no reliable statistics on the number of non-registered relationships that came to an end, nor on the number of children involved in these separations.
In this chapter, firstly, the different modes of child participation according to Belgian law will be presented. In the second part, the focus is on the right of the child to be heard in the Belgian family justice system. Lastly, the representation of the child in family proceedings and the possibility for the child to initiate proceedings will be discussed. In this chapter, ‘child’ means a person who is a minor, i.e. who is not yet 18 years old.
STATUTORY PROVISIONS
There are different ways in which children can participate in family law proceedings. Children can have a substantive right to determine the outcome of the case, they can participate in judicial proceedings through the hearing of the child, and finally, they can be involved as a party to certain proceedings. The various modes of child participation are regulated by the Old Civil Code 10 and the Judicial Code. The right of the child to be heard is also enshrined in the Constitution.
Balancing the Rights of Parent and Child in Case of Non-Compliance with Contact Arrangements: A Case Law Analysis
- from PART IV - THE ROLE OF THE CHILD IN FAMILY PROCEEDINGS
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- By Eva Vertommen, Research Assistant at the Institute for Family Law, KU Leuven.
- Edited by Katharina Boele-Woelki, Dieter Martiny
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- Book:
- Plurality and Diversity of Family Relations in Europe
- Published by:
- Intersentia
- Published online:
- 09 November 2019
- Print publication:
- 29 August 2019, pp 175-202
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- Chapter
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Summary
Parents have the right to have contact with their children and vice versa. Children have the right to have their best interests taken as a primary consideration, the right to be heard and the right to have due weight given to their views. There seems to be tension between these rights when a child refuses to have contact with one parent, especially when that child is allegedly manipulated or influenced by the other parent. The aim of this chapter is to examine which elements are taken into account by the European Court of Human Rights (ECtHR) in the assessment of the way in which the national authorities handle the non-compliance with a contact arrangement due to the refusal of an allegedly manipulated child.
INTRODUCTION
When parents no longer live together, the right of the parents to have contact with their child must be concretised in a residence or access arrangement (hereafter: contact arrangement). If parents fail to reach an agreement, the arrangement will be made by the court‘s decision. Unfortunately, in situations in which there is a high degree of conflict, it often happens that these arrangements are not complied with.
In this chapter, the focus is on situations in which there is a refusal by a child to have contact with one of the parents. This refusal can be well grounded, for example in the case of abuse. It sometimes occurs, however, that a child expresses negative feelings towards one of the parents because that child is being manipulated by the other parent. A child might also experience a conflict of loyalty, and may feel that the parent with whom the child resides would be hurt if he or she does not refuse to have contact with the other parent. Especially in these situations, there may be tension between the right of the parent to family life, as protected by the European Convention on Human Rights (ECHR), and the best interests of the child and the child's right to be heard, which are protected in both the European Convention on Human Rights and the Convention on the Rights of the Child (CRC) (infra sections 2.2 – 2.4).