Procedural Rights Of The Child In Family Proceedings In Croatia

Procedural Rights Of The Child In Family Proceedings In Croatia Presented by: Prof. Dr. Graovac Date: 02 December 2022 Parental International framework - Convention on the Rights of the Child • Art. 12 Right of the child to be heard ""1. States Parties shall assure to the 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. • For this purpose the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law." • General comment no. 12 (2009) The right of the child to be heard International framework Council of Europe - European Convention for the Protection of Human Rights and Fundamental Freedoms - European Convention on the Exercise of Children's Rights (1996) • Signed and ratified by Croatia - compliance by legislation • Declaration at least three categories of family cases before a judicial authority to which this Convention is to apply (according to Art. 1 par 4): • Parental responsibility as part of divorce proceedings • Exercise of parental care • Measures for protection of personal rights and interests of the child • Adoption • Guardianship for minors European Union Child-friendly justice a key agenda for EU Activities of Fundamental Rights Agency Research 2017 - Establishing procedural safeguards to ensure child participation - Assessing maturity - Providing professionals with rules and guidelines on how to hear children - Introducing specialized courts, panels or judges for children - Using child-friendly facilities to hear children - Making free legal aid available, including free and easy access to legal representation - Reducing the length of proceedings - Right to information - Mandatory procedures on how to inform children when, on what an by whom - Availability of child-friendly information - Availability of support services to properly inform children and parents - Single professional contact person to support children during proceedings - Right to protection and privacy - Protective support for children - Establishing procedural safeguards to ensure child protection - Ensuring a child's right to privacy and confidentiality - Right to non-discrimination. - Principle of the best interests of the child - Training of professionals - Multidisciplinary cooperation - Availability of resources Croatian Law Historical View - The Act on parent child relations 1947 - The Act on Marriage and Family Relationships - The Family Act 1998 - The Family Act 2003 - Social welfare office could represented the child in court proceedings in some paternity or maternity proceedings - Children's views were reported as part of the report about family environment and circumstances - Confusion of roles - social welfare office might: • Initiate a court proceeding for the protection of children • Act as a guardian ad litem • Was a special body that might help the court to collect the facts (also hearing of a child) The Family Act 2015 - Principles • Parents and children's guardians are obliged to respect the child's views in accordance with their age and maturity • In all proceedings affecting any right or interest of the child, the child has the right: • To find out, in an appropriate way, about relevant circumstances of the case, • Get advice, • Express his/her views and • Obtain information on the possible consequences of the respect for their opinion • The child shall be heard in accordance with their age and maturity • The child has no obligation to express views! (a mistake in the Family Act 2014) The Family Act Procedural provisions - The child has the status of a party in all family proceedings - Has the right to directly or indirectly express his/her views in all extrajudicial and judicial family proceedings and with a special guardian whose duties are clearly prescribed by the law - Judges are not always sure how to express the child's status of a party (i.e. In divorce proceedings) - Constitutional court took seriously into account if the child has possibility to express his/her views - When the child was manipulated an obstacle to form his/her views freely The Family Act Article 240, paragraph 1 - In order to protect certain personal and property rights and interests of the child, the social welfare office or the court shall appoint a special guardian: • To a child in matrimonial disputes and in proceedings for contesting maternity or paternity, • To a child in other proceedings in which it is decided on parental care, certain contents of parental care and personal relations with the child when there is a dispute between the parties, • To a child in the procedure of imposing measures for the protection of personal rights and welfare of the child within the Jurisdiction of the court when it is prescribed by the provisions of FA, • To a child in the process of making a decision that replaces the consent to adoption, • To a child when there is a conflict of interest between him or her and his or her legal representatives in property proceedings or disputes, or when concluding certain legal transactions, • To children in case of a dispute or a legal transaction between them when the same person has parental care over them, • To a child of foreign citizenship or a stateless child found on the territory of the Republic of Croatia unaccompanied by a legal representative, • In other cases as prescribed by the provisions of FA, i.e. special regulations or if it is necessary for the protection of the rights and interests of the child. A special guardian The Special Guardianship Center Act - A lawyer with a bar exam, employed at the Special Guardianship Center - Exception for an unaccompanied child an employee of a social welfare office - Duties: - To represent the child in the procedure for which is appointed, - To inform the child about the subject, the course and outcome of a dispute in a manner appropriate to the child's age - If necessary, contact the parent or other persons close to the child - Exceptions; • If a child is fourteen years old and his/her ability to take action in the procedure of proxy authority is recognized in a decision, no special guardian will be appointed, • In the case of a child of foreign citizenship or a stateless child who is found unaccompanied by a legal representative on the territory of Croatia. In that case, a social welfare center will appoint a special guardian outside the SGC (Article 240 paragraphs 5 and 6) • Also a special guardian for adults with disabilities Ordinance - qualifications of a special guardian - At least 15 hours of education in the field of protection of the rights of children and adults in proceedings before courts and other bodies prescribed by the family legislation - At least 15 hours about professional knowledge and skills necessary for communication with the child and adult acquired through education or programs - (basic knowledge and communication skills for working with children and adults and targeted knowledge and communication skills for working with people unwilling to cooperate, people with disabilities, as well as team communication skills) - Certainly not enough Number of cases - 3638 cases of special guardianship for children in 2021 - one special guardian has to represent children from several counties Unwanted consequences - The reform produced impossibility for effective application - Not enough special guardians - Impossible to fulfill all duties requested by law - New breaches of law and procedural rights of children - What if the views of children might harm the relationship with an emotionally unmatured parent - Divorce proceedings • Parents make an agreement to protect children not to be represented by a guardian ad litem in divorce proceeding - Lacunae in mediation and divorce proceeding upon agreement (parental autonomy is primary) - Many regular courts and constitutional decisions that strengthen trend - Necessity to have specialized family courts an ongoing reform