When parents divorce: how lawyers give children a voice

The number of child representatives ordered has been at a low level for years. The Swiss Child Advocacy Association estimates that at least 5,000 child representatives are needed every year in courts and authorities such as the KESB. How much will actually be arranged is not known. Only the conference for child and adult protection collects this number: on December 31, 2022, 843 children were represented throughout Switzerland. It is not known how often children are represented in court. But one thing is certain: children rarely have their own representative. Even if it costs something, the benefits are great.

A child has two options for becoming involved in a judicial or child protection procedure: the children’s hearing and child representation. These two participation rights are human rights. “The child’s hearing is only selective. The child representative, on the other hand, guides and supports children and young people during the entire process and explains them constantly and in a way that it is about – and what their possibilities for participation and influence are, “says Christophe Herzig, children’s lawyer and teacher. Please note: child representation does not replace the hearing of the child by the court or the Kesb. It is important that they get their own impression of the child or the young person through a hearing. Because they are those who eventually decide on their interests.

Thanks to their own representation, the children or young people must feel respected and taken seriously in the procedure. “This can strengthen your resilience,” says Christophe Herzig. He is convinced that if young people deal better with difficult life situations, they will be able to deal with life more easily later – and this will benefit society in the long term. Certified children’s lawyer Alexandra Gavriilidis also emphasizes that child representatives can often mediate in divorce and divorce procedures and can contribute to a amicable solution.

“My task is to make the wishes of the child clearly clear, especially in conversations with him and the people around him, and then wants to transfer it to the court or the Kesb,” says KinderAdvocaat Gavriilidis. Or in the words of Herzig: Due to child representation, the child’s perspective must be involved in the process. However, a child representative must always keep the interests of the child in mind. For example, if a young person prefers to live with the parent who is never at home and does not impose any restrictions on him, the child representative must raise this with the child.

However, the older a child is, the greater the chance that the children’s lawyer must represent his or her will exclusively. For younger children, however, the well -being of the child is the priority, and the child’s comments must also be transferred. For example, even a six -year -old child could certainly have an opinion that the children’s lawyer should involve in the procedure.

They usually contact the child via the main caregiver. A children’s lawyer would probably call Nino and Dita from our example and ask where they wanted to meet each other. This is often the place where the children currently live. Sometimes the conversation consciously takes place at the children’s lawyer as a neutral place, because the child can then express himself more freely if needed.

In the first interview, the child representative explains her role, the procedure and why she has been appointed – and especially that she is not part of the court or the Kesb, but is exclusively on the child’s side. “And then I usually ask questions to find out what the child already knows, how he sees his situation and what he wants,” says children’s lawyer Gavriilidis.

It is important to have a conversation that is as open as possible. The child must have the feeling of being taken seriously. Children’s lawyers usually see the children two or three times. Make sure you talk to the main caregiver with smaller children and, if necessary, with other important people such as the grandparents or guardian.

Before Gavriilidis writes a petition for the child to the court or to the KESB, she discusses this with him – in a way he understands. And if the decision eventually falls, the children’s lawyer explains this to the child and looks at how he or she reacts to it. “One of our duties is to explain the child in an understandable way what the decision means for his current life situation, what the pros and cons are of going further and what alternatives there are.”

If the court or the KESB does not order the child representation on their own initiative, the parents, a representative of the child or the child himself, can submit a request – at the beginning or only during the procedure. If a child with intellectual abilities asks for this in legal proceedings, the court must order child representation. A child can judge from about ten years. Otherwise, the authority or the court will decide at its own discretion whether the order is necessary.

The costs are part of the costs of the proceedings. They are based on cantonal law. The parents usually have to bear half the costs. If they are litigated for free, the state will bear the costs. If they can do this later, they will have to reimburse the costs. KESB procedures are free in certain cantons, such as Bern.

We can only speculate about this: the greatest fear is probably the costs – and that another party could extend the process and make it more complicated.

With regard to child protection procedures, the canton of Zurich is the only thing that is doing well at the moment. Since 2016, an instruction from the supervisor has been applied that the KESB must explain in writing to the reception of a child why she does not use child representation. The reason was the Flaach case, in which a mother killed her two children in 2015 who were in the out -of -house care. “The authorities have noticed that it is hard to justify on external positions,” Christophe explains Herzig. To increase the number of child representatives, such a directive would also be desirable in other cantons. The obligation to reasons could also be extended to other cases.

Jonas Schweighauser, lawyer and teacher at the University of Basel, who also represents children, even argues that in certain cases child representation is ordered – for example, if the parents are denied the right to determine their child’s place of residence or are more than more than A year away to dispute custody. However, this would require a change in the law.