Tim (6) wants to live with his grandparents. Is he allowed to?
The parents of 6-year-old Tim and 11-year-old Lisa have been separated for several months. The father has moved out and lives in the same city with his new partner. She is expecting a child. The parents agree that the children will continue to be looked after by their father one day a week and live with him; in addition, they are to spend every other weekend with him.
When asked by the court about his ideas for the future centre of his life, Tim says that he would like to live with his grandparents in the countryside. The 11-year-old Lisa, who has a reading and spelling disorder and therefore also suffers from school problems, would like to change schools and therefore live with her father. Her mother, on the other hand, would prefer to start therapy with Lisa.
What rights do children have when their parents separate? Do children have a say about their school or possible therapies? Can a child influence their everyday personal environment, family, school and health?
Personal rights of the child
The law distinguishes between the right to self-determination and the child's right to participate. Both belong to the personal rights of the child. If a child can decide on a matter themselves, they do not have to ask their parents, nor do they have to legally represent the child. The child has sole decision-making power. In these cases, we can speak of a child's right to self-determination . Two examples regulated by law in Switzerland are
- Minderjährige entscheiden ab dem 16. Lebensjahr über Fragen der religiösen Zugehörigkeit selbst (Art. 303 Abs. 3 ZGB).
- Urteilsfähige Kinder müssen zu ihrer Adoption zustimmen (Art. 265 Abs. 2 ZGB).
In general, minors decide on highly personal life matters themselves, provided they are capable of judgement (Art. 19c ZGB). This means that if they are able to judge the consequences of their decision or action, they can decide on interventions in their body (surgery, therapy, piercing), for example.
If the child is involved in an official procedure or a decision in any way, for example if they are informed about the possible consequences of a divorce or a change of school, if they are consulted and if they actually express their opinion on the matter, such as Lisa on the change of school, we can speak of the child's right to participate. Participation means active involvement, involvement and possibly also co-determination. In any case, it means that the child is informed and listened to (if they want to be) and that their comments are taken seriously. The foreign words participation or participation rights are synonymous with involvement or participation rights.
The right of participation should be the rule when making decisions about the living environment.
Under Swiss law, children do not generally need to have the capacity to make judgements in order to exercise participation rights, but they do for self-determination rights. In order to be able to make their own decisions, children must have the appropriate mental and volitional capacity (age, maturity, cognitive abilities). A child's right to self-determination therefore remains the exception in principle. Normally, a child is represented by its parents.
However, the child's right to participate should be the rule when it comes to decisions about their personal living environment (especially family, school and health). Participation and self-determination rights are personal rights and are inextricably linked to the person, and this also applies to the child; only in exceptional cases will there be no participation: An infant cannot actively participate, but can still legally acquire an inheritance. On the other hand, there is no involvement if, for example, the mother and brother influence 11-year-old Lisa so that she does not express her wish to change schools. There is also a lack of involvement if Tim's wish to move in with his grandparents is ignored.
The right to participation is an international children's right
Article 12 of the UN Convention on the Rights of the Child (1989) has made the child's right to participation an internationally binding right in Switzerland since 1997: the right of the child to express him or herself freely in accordance with Article 12 of the UN Convention on the Rights of the Child includes the right to have his or her opinion taken into account and the right to influence his or her personal living environment. The right applies to all types of judicial or official proceedings that directly or indirectly affect the child's life.
In implementation of Art. 12 of the UN Convention on the Rights of the Child, Swiss law provides for hearings in divorce proceedings, for example. The purpose of the hearing is to respect the personal rights of the children. The aim of hearing the children in divorce proceedings is to give the persons authorised to make decisions a personal impression of how the children see their situation and what significance the two parents have for the children, as well as to give the children the opportunity to express their wishes and needs and to talk to an independent person about their current situation during their parents' separation.
Swiss law provides for the hearing of children in divorce proceedings.
The child hearing serves the best interests of the child. However, respecting the best interests of the child also means that a judicial authority does not have to fulfil every wish of a child, as it may be, for example, that the grandparents in the case of 6-year-old Tim are completely unsuitable to take him in for health reasons.
The child's wish is legitimate
If children are able to participate in a legal or official procedure, they contribute a child's perspective that is not necessarily accessible to adults. However, the right to participate includes the duty of the competent authority to consider Tim's wishes: What was the relationship with the grandparents like in the past? Does Tim perhaps «just» want to escape his parents' constant arguments or avoid a conflict of loyalty? What options would there be for Tim to still live with his grandparents?
However, the involvement of children also increases their willingness to accept a decision made by the decision-makers. Children generally appreciate it in dialogue when they can take on an active role. They want to be perceived as a person in their entire living environment and not just as a «problem case».
Progress achieved
The recognition of participation rights and children's rights has undeniably made progress in recent decades. However, despite new normative requirements and practice-orientated standards in Switzerland, the legal protection of children remains inconsistent and is limited to certain issues. In addition, implementation in everyday life is still lagging behind and the level of awareness of participation rights still leaves much to be desired in some cases.
A study published in 2013 comparing countries in Europe with regard to juvenile criminal law found that Switzerland and Scotland, for example, take very good account of the participation of young people. However, there is still room for improvement in the implementation of children's participation rights in everyday life, particularly in school matters, and a survey of 50 members of courts of first instance in French-speaking Switzerland from 2012 shows that it is primarily children who are heard in «highly contentious» cases and those who are 10 years or older. Furthermore, only around one in a hundred children in judicial or official proceedings in Switzerland is professionally supported by a procedural representative, and a 2011 study analysing child protection systems concluded, among other things, that the involvement of the whole family and an independent supervisory body in Switzerland could be helpful.Two more recent EU studies from 2015 (not including Switzerland) concluded that there is still a need for action, that the protection provisions for children are still too little known, that adults lack the necessary expertise and that certain groups of children have even fewer opportunities to participate.
What can parents do?
Parents can support their children in exercising their participation rights. For example, they can help ensure that their child receives the information they need to form an opinion in an understandable way. They can help to ensure that their children learn to participate at the family table.
Children really appreciate it when they can take an active role in the conversation.
It must also be ensured that all persons who inform, listen to, accompany and represent the child in proceedings have a positive attitude towards children and have received appropriate training (basic knowledge of the law, knowledge of child psychology).
In addition, an independent ombudsman or ombudsperson should be established in Switzerland as a contact point for children's rights and be able to ensure that children's rights are enforced. Such an institution should also be involved in legislative procedures on children's rights. It would also have a coordination function.
All children have human rights
Children all over the world are bearers of human rights. No person, no authority and no state may deny children's rights. Children's rights must be protected and recognised.
Every child has the
- Recht auf Leben,
- Recht auf Gesundheit,
- Recht auf Schutz,
- Recht auf eine eigene Meinung (das ist die Mitwirkung),
- Recht auf Bildung,
- Recht auf eine gewaltfreie Erziehung,
to name just a few of the UN Convention on the Rights of the Child.
If we are interested in how children's rights can be better realised in Switzerland and what we can do to strengthen them, we should not forget that children's rights are far from being respected everywhere. In some countries there is no clean water, no schools, children have to work, are married off early or used as child soldiers.
