A reversal of the current system operated by the Bill of law of 28 March 2018: the maintenance of parents’ parental authority in the event of the legal placement of their child
ARTICLE
REAL, Avocats à la Cour
In the Grand Duchy of Luxembourg, every minor is entitled to be represented by a children’s lawyer whose role is to defend the interests of the child, whether in the context of divorce proceedings (summary proceedings or divorce on the merits), before the Guardianship Court or in matters of youth protection.
Drawing on its experience in representing and assisting minors at all stages of the proceedings, the law firm REAL, Avocats à la Cour, has examined in more detail the Bill of law of 28 March 2018 (the “Bill”) establishing a youth protection system and amending the Law of 7 March 1980 on the organisation of the judicial system, as amended, in order to study the significant progress planned in this area.
In this respect, Article 21 of the Bill defines in more detail the task of the minor’s lawyer by making a distinction between the minor who is not capable of discernment and the minor who is capable of discernment.
Thus, this article provides that when the minor is not capable of discernment, the lawyer must ensure that the rights of the minor are respected. The following paragraph then states that when the minor is capable of discernment, the lawyer will have more of the role of spokesperson. His task is to listen to the minor, to advise him, explain the consequences of the decisions to be taken by the judge or the juvenile court and then to relay the minor’s words to the court. In all cases, the lawyer must continue to ensure that the rights of the minor are respected and to act in the best interests of the minor.
The Bill also has the advantage of providing for a complete recast of the current Law of 10 August 1992 on youth protection.
In this respect, it intends to emphasise, in the same way as French law, the primary objective, which is the maintaining of the minor in his or her family environment.
More specifically, Article 12 of the Bill contains an important amendment in the area of youth protection and aims to reform Article 11 of the Youth Protection Law by specifically addressing the problem of parental authority in the event of placement of a minor outside the parents’ home.
As a reminder, Article 11 currently states that:
“If the minor is placed outside the parents’ home (…) they shall retain only visiting and correspondence rights. The juvenile court or the judge shall determine the methods and may even, if the interests of the child so require, decide that the exercise of one or all of these rights shall be suspended.
As for the minor himself, all the other attributes of parental authority shall be transferred to the person or institution to whom the minor is entrusted, with the exception of the right to consent to the adoption and marriage of the minor.
The Court of Appeal ruling in civil matters, decided, in a judgment of 18 February 2009 (List no. 34367), that the transfer of parental authority will not only occur in the event of final placement but also in the event of interim custody.
The question of whether or not there should be an automatic transfer of parental authority in the event of placement has been the subject of difficult discussions for decades.
The automatic transfer of parental authority should not be confused with the withdrawal of parental authority. The parents of a child in care retain the right to be informed and consulted on all important decisions concerning their child, even if the final decision rests with the person or institution receiving the child.
However, this situation makes no difference between parents who lose so much interest in their child that they no longer have contact with the child and parents who, at the time of placement, are unable to ensure the safety and wellbeing of their child without, however, losing interest in his or her fate.
Such parents often view the transfer of parental authority as a sanction against them even if this is not the purpose of this legal provision.
In previous efforts resulting in the Bill of law 5351, the “Youth Protection”interdepartmental working group analysed, in its Opinion of June 2002, the advantages and inconvenience of the automatic transfer of parental authority. At the time, this working group concluded that the principle should be maintained.
The present Bill was also preceded by significant work and discussions within a new working group. During these discussions, it was stressed that the automatic transfer of parental authority leads, for some parents, to a strong demotivation to collaborate with the institution or even to a disengagement from the life of their child.
This obviously makes the pedagogic work for family reintegration more difficult.
With a view to making parents more responsible, it was decided to completely change the current system by establishing the principle of maintaining the parental authority of parents in the event of the legal placement of their child.
However, one of the attributes of parental authority, namely the right to determine the child’s place of residence, is manifestly incompatible with a legal placement decision, the place of residence of the minor being determined judicially. Consequently, this attribute of parental authority is no longer exercised by the parents of a minor placed in care.
This reversal was taken into account in the Opinion 04/2011 delivered by the Consultative Commission on Human Rights of the Grand Duchy of Luxembourg (the “CCDH”).
The CCHR had in fact already pointed to this problem relating to the transfer of parental authority in matters of interim custody, considering that it was not excluded, in such a case, that parents would simply have their responsibility removed and that any decision concerning the child would be out of their hands.
The Commission even considered that this was an infringement of their right to be parents and to care for their children, as provided for in Articles 8, 9 and 10 of the European Convention on Human Rights. It therefore noted that it was entirely possible to remove part of the parental authority and to transfer only certain attributes to the institution receiving the child, such as the right to decide on the child’s residence.
Such a change has been accounted for in the current Bill.
This change also, however, risks making the practical organisation of the life of the minor placed in care more complicated for the institution or person receiving the minor. Furthermore, the maintenance of parental authority in favour of the parents requires a permanent exchange of information and active collaboration and good faith on the part of all the parties involved.
The Bill therefore provides an exception to the general principle of maintenance of parental authority by stipulating that where it appears, during legal placement, that the maintenance of parental authority in favour of the parents is not in the interests of the child, the judge may decide to transfer parental authority to the person or institution receiving the minor.
This decision must, however, be preceded by a meeting at which “the person or institution to whom the minor is entrusted as well as the person, guardian or guardians of the minor” are heard or to which they are at least convened.
This includes situations particularly where collaboration is no longer possible, for example because parents are unreachable or refuse to make necessary administrative or medical decisions or procedures in the best interests of the child. Also conceivable is the situation where parents make decisions that are clearly contrary to their child’s best interests.
Were this Bill to be passed definitively in the future, it would be up to the child’s lawyer, taking into account the best interests of the minor, to encourage the minor to remain in his or her family environment or, alternatively and in exceptional circumstances, to ensure that a transfer of parental authority takes place in favour of the receiving institution.