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International Family Law Views – Hearing the Child’s Voice Across Borders

January 26, 2021

by Hadrian Hatfield

As a general rule, state courts in the United States are not in the habit of making specific arrangements to hear and consider the views of children in every family law case where child custody is an issue. Even less frequent is a court order for custody that makes specific reference to how the court heard and considered the child’s views. A number of international legal sources, however, require that the voice of the child be heard in legal proceedings where custody is an issue. This can have serious implications in the international context when trying to enforce a court order related to child custody in another country. A good practice tip, therefore, is to reference in every custody order how the court heard and considered the voice of the child.

The 1989 United Nations Convention on the Rights of the Child (“1989 UNCRC”), to which 196 countries are party (but not the United States), provides strong wording regarding the need to consider the views of children in custody proceedings. It states at Article 12:

  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.
  2. 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.

The 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (“1996 Hague Children’s Convention”) has 52 contracting parties. The United States signed this Convention in 2010, but has never ratified it. This Convention also makes consideration of the child’s views in a custody proceeding quasi-mandatory for cross border enforcement purposes. It states in relevant part at Article 23:

  1. The measures taken by the authorities of a Contracting State shall be recognised by operation of law in all other Contracting States.
  2. Recognition may however be refused – . . . b) if the measure was taken, except in a case of urgency, in the context of a judicial or administrative proceeding, without the child having been provided the opportunity to be heard, in violation of fundamental principles of procedure of the requested State.

Similarly, the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“1980 Hague Abduction Convention”), to which the United States is a party and which requires contracting parties to return children to their country of habitual residence for custody decisions in cases of parental abduction, addresses the voice of the child. It states at Article 13(2): “The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.”

The Hague Conference Special Commission on the practical operation of the 1980 and 1996 Hague Conventions in 2017 adopted conclusions and recommendations that state, in part: “in order to facilitate the recognition and enforcement of an order for measures, where a competent authority decides to hear a child, there are a range of ways in which it may do so within the diversity of legal systems and approaches. The competent authority should incorporate into the order for measures a record of the way the child was heard, or if a decision is made not to hear the child, an indication that consideration was given to doing so and the reasons for the decision not to hear the child.”

And the European Union has its own legal provisions for hearing the voice of children in custody related cases. Council Regulation (EC) No. 2201/2003 of 27 November 2003 (“Brussels IIa”), which addresses jurisdiction and the recognition and enforcement of judgments in matrimonial matters, incorporates the 1989 UNCRC Article 12 principle. The Recast of Brussels IIa, which was adopted by the EU Council and on August 1, 2022, will apply in all Member States of the European Union except Denmark, goes even further. It provides at Article 20 that “the authorities of Member States shall ensure that a child who is capable of forming his or her own views is given the genuine and effective opportunity to express those views freely during the proceedings. The authority shall give due weight to the child’s views in accordance with his or her age and maturity and document its considerations in the decision.”

All these legal sources, of course, provide for the exercise of judicial discretion in hearing the voice of the child, in regard both to the age and maturity of the child, and to the manner for hearing his or her views. In any case, though, the wise practitioner (or judge) would do well to ensure that proposed (or final) court orders related to child custody make specific reference to how the views of each involved child were heard and considered, or to the specific reasons the child’s views were not heard. Otherwise, the risk is that the hard fought and obtained court order related to custody will be ignored when enforcement is sought in another country.

*Article reproduced with permission as published in the MSBA Family and Juvenile Law Section Winter 2020/21 Newsletter




The contents of this Article are for informational purposes only and do not constitute legal advice. If you have any questions about this Article, please contact Hadrian Hatfield.