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Hearing of the child! The Outreau affair had revived the debate on the word of the child: should it be taken into account? What place does it occupy in the procedures that may concern it?
If he is capable of discernment
Since the law of 2007, a minor capable of discernment can be heard by the judge when his interest requires it. The child who requests it must therefore be heard. If the judge refuses, he must justify his decision. This is the case in all proceedings concerning the child. There is no legal age, but case law considers that he is capable of discernment from 12 or 13 years old. His capacity for discernment is also linked to his maturity, his degree of understanding or his ability to express a considered opinion.
In divorce proceedings
Youth entry! In the context of divorce proceedings, a child capable of discernment may ask to be heard by the family court judge for any question relating to the determination of the principal residence, the method of access and the accommodation… The parents have the obligation to inform the child of this right to be heard. The judge has a sovereign power of appreciation. He therefore takes the child’s opinion into account, but will also give priority to his interest by studying other elements (elements of personality, elements of the file, social investigation, etc.).
In a school assistance procedure
In the context of an educational assistance procedure, the juvenile judge must hear the minor capable of discernment if the latter so wishes. The judge may also request a hearing on his own initiative. He can hear even small children. They are then represented by an ad hoc administrator appointed to carry their word. The objective of the judge is to obtain the support of the family for a possible measure of protection. The judge will therefore take into account the words of the child while trying to ensure what suits him best.
In case of abuse or sexual assault
The child victim of abuse or sexual assault is heard by the police according to a special procedure since he is recorded by video camera. This is mandatory from the first hearing, then before the investigating judge. Thus, the experts can visualize the hearing and better study the words, the gestures of the child and his behavior. The word of the child is apprehended with great caution and the criminal judge is not satisfied exclusively with this word. He can also order other measures such as, for example, a social inquiry or the opinions of medical psychologists in order to better discern the reality of the facts. The law firm DAMY is frequently asked to request the hearing of children, especially in this year 2022,
Société d’Avocats DAMY, Nice, Should justice take into account the opinion of children? 2022 Update
