Voice and representation of children in Monaco's legal system

To mark the International Day for the Rights of the Child on 20 November, the Family Law Department offers you this contribution dedicated to ‘THE CHILD'S VOICE AND REPRESENTATION IN JUSTICE’ in Monaco.

20 November is the anniversary of the International Convention on the Rights of the Child, adopted by the United Nations General Assembly on 20 November 1989 and ratified by 197 countries.

The Principality of Monaco acceded to this Convention on 21 June 1993.

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I.The Convention sets out the fundamental rights of children throughout the world

A brief reminder of the fundamental rights of the child enshrined in the Convention:

• The right to have a name, a nationality and an identity,
• The right to be cared for, protected from disease and to have an adequate and balanced diet,
• The right to go to school,
• The right to be protected from violence, ill-treatment and all forms of abuse and exploitation,
• The right to be protected against all forms of discrimination,
• The right not to be involved in, or suffer from, war,
• The right to shelter, assistance and decent living conditions,
• The right to play and leisure,
• The right to freedom of information, expression and participation,
• The right to have a family, to be cared for and loved.

4 fundamental principles protected by the Convention:

• Non-discrimination,
• The best interests of the child shall be a primary consideration in all legal decisions affecting the child,
• The right to live, survive and develop,
• Respect for the views of the child.

II. Legal representation of children in Monaco - article 307 of the Civil Code

• Children are represented in court by their legal representatives (traditionally their parents).
  In all matters, an ad hoc administrator may be appointed in situations where there is a divergence between the interests of the child and those of his or her legal representatives. For example
  • In matters of educational assistance, by the Juge Tutélaire, as part of his mission to protect the child,
  • In criminal matters, when the child is the victim of an offence (article 268-1 of the Code of Criminal Procedure).
• In other specific matters, the law provides for the intervention of an ad hoc administrator to replace the parents in representing the unemancipated minor in the exercise of his or her rights, within the limits of the mission entrusted to him or her. This is particularly the case in matters of recognition or contestation of filiation.
• Where appropriate, the ad hoc representative will request the appointment of a lawyer to defend the child's interests in court, independently of those of the parents.
• The lawyer is appointed by the Bureau d'Assistance Judiciaire.

II. The voice of the child in the courts

• Article 12 of the International Convention on the Rights of the Child guarantees a child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
• Children's views may be heard in court at all stages of proceedings:
  • In matters of educational assistance (child protection, before the guardianship judge);
  • Separation from parents (non-divorce litigation);
  • In matters of filiation;
  • In criminal matters where the child is a victim or witness in serious cases;
  • In criminal justice matters: child perpetrators.

The child's views are heard:

• By the judge directly or, when it is in the child's best interests, by a person appointed by the judge for this purpose.
  • When the judge is asked to rule on the exercise of parental authority, for example, this hearing is, under certain conditions (the child's capacity for discernment), the right of the child who requests it.
  • The child may then be heard alone, in the presence of a lawyer or a person of his or her choice. If this choice does not appear to be in the child's best interests, the judge may appoint another person.
• By a social worker appointed by the Judge for this purpose, as part of a social investigation ordered as part of an educational assistance or supervision measure in particular,
  
• Through health professionals, when a psychological and/or psychiatric assessment is organised,
  
• By child protection bodies such as the departments of the Direction de l'Action et de l'Aide Sociales.
  

There is close cooperation between the judicial authorities and child protection bodies to ensure that the child is fully monitored.

• Through a lawyer specifically appointed for the child, who may be chosen by the child's legal representatives, the child's ad hoc administrator, or appointed under the legal aid scheme (in which case the lawyer's fees will be paid by the State).
  

In all cases, legal proceedings are adapted to the child's situation, to ensure that he or she has the freedom to express his or her views.

The judge will take the child's views into consideration in the light of his or her degree of maturity.

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