The legislation on the protection and promotion of children’s rights was recently amended. The Costaș, Negru & Asociații team reviews, in this article, the new changes and the associated legal issues.
- The rationale for hearing minors in cases concerning them
Law no. 123/2024 amending and supplementing Law no. 272/2004 on the protection and promotion of the rights of the child, published in the Official Gazette no. 414 of May 7, 2024, amends art. 5 para. (1), Art. (3) and (4), Art. 20 para. (1), Art. 40 para. (4) and (5), Art. 96, Art. 99, Art. 102, Art. 140 of the old regulation and introduces Art. 18 para. (31), Art. 1401 – 1404.
Under the old regulations, the hearing of minors was subject to the rules laid down in Article 264 of the Civil Code, which, in para. 1 stipulated that: “In administrative or judicial proceedings concerning him/her, the hearing of a child who has reached the age of 10 years is compulsory. However, a child under the age of 10 years may also be heard if the competent authority deems this necessary for the outcome of the case“.
Thus, according to the above legal provisions, the court hearing the case was obliged to hear the minor child who has reached the age of 10 and had the option to hear the child who has not yet reached the age of 10, if it considers it necessary for the resolution of the case.
The provisions contained in Article 264 para. (1) of the Civil Code, were the subject of Constitutional Court Decision no. 15/2019.
When lodging the objection of unconstitutionality, its author argued that, in reality, these provisions impose a real obligation on the minor, which may give rise to “abuses” by the competent authorities who subject the minor to the hearing procedure repeatedly. At the same time, it was argued that, depending on the specifics of the case, such a procedure may have negative consequences for the minor and his development.
However, the Constitutional Court, analyzing the above arguments, rejected the objection of unconstitutionality as unfounded. In its considerations, the Court pointed out that Art. 264 para. (1) of the Civil Code, which establishes an age threshold for hearing the child, is not to be understood in the sense of an obligation imposed on the minor, but rather as an obligation imposed on the judicial bodies to listen to the views of the minor, in order to assess the best interests of the minor as such. For the minor, these provisions provide a genuine guarantee that his right to freedom of expression is effectively respected.
In harmony with the presented solution of the Constitutional Court are both the regulations of Union law and those of treaty law. One can easily observe that the rule established by Art. 264 para. (1) of the Civil Code is inspired by the United Nations Convention on the Rights of the Child, Article 12 of which provides for the right of the child to freedom of expression and respect for the views of the child. Thus, “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.”
To this aim, the child shall, in particular, be given an opportunity to be heard in any judicial or administrative proceedings affecting him or her, either directly or through a representative or a competent body, in accordance with the rules of procedure under national law.
In addition, we also refer to the principle of the best interest of the child, regulated by the same normative act, in Art. 3 para. (1): “1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall prevail.”
In order to understand the legal protection granted to the child, the provisions of the Charter of Fundamental Rights of the European Union are also relevant, namely the provisions found in Article 24 para. (1). Thus, “Children have the right to such protection and care as is necessary for their well-being. They may express their views freely. Their views shall be taken into consideration in matters which concern them in accordance with their age and degree of maturity.”
- The new rules for the hearing of minors under Law no. 272/2004 on the protection and promotion of children’s rights
The amendments made by art. 1403 of Law no. 123/2024 provide that the hearing of the minor, except in cases concerning the establishment of special protective measures, is done only in the presence of a General Directorate of Social Assistance and Child Protection psychologist. Thus, the aforementioned article provides in para. (1):” In cases in which measures are to be ordered with regard to a minor child, other than those referred to in Article 133, the court shall hear the minor only with the participation of a psychologist from the General Directorate for Social Assistance and Child Protection.”
Furthermore, paragraph. (5) of the same Article provides: “The hearing of minors in judicial proceedings shall necessarily take place after the evidence in the case file has been heard, as the final stage of the judicial investigation. The opinion of the minor shall have the probative value of a relative presumption“. Therefore, the hearing must be held after all the evidence has been heard, so that the opinion of the minor, which now has the legal probative value of a relative presumption, can be analyzed in relation to all the evidence in the case file.
Article 327 Civil Procedure Code explains presumptions as “the consequences that the law or the judge draws from a known fact to establish an unknown fact“. Presumptions can be divided into two major categories, absolute or relative, and there is of course an intermediate category of mixed presumptions. Absolute presumptions (iuris et de iure) are those presumptions that cannot be rebutted by evidence or, as the case may be, are liable to be rebutted. At the other extreme, relative presumptions (iuris tantum) can be rebutted by any means of proof. Mixed presumptions allow evidence to the contrary, but only by certain means of proof, only by certain persons or only in certain situations.
The probative value established by the legislator of the minor’s opinion in the hearing procedure is that of relative presumption, and can be rebutted by any other evidence.
Following the hearing of the minor, the psychologist of the General Directorate of Social Assistance and Child Protection will draw up a report, which will be obligatorily filed in the case file, as provided for by art. 1403 para. (3) Law 272/2004.
However, even though the legislative amendments have already entered into force, there are currently no methodological rules for implementing them. This state of affairs means that, paradoxically, in an urgent field due to the nature of the litigation, the courts have to postpone the cases until the clarification of the legislative provisions. It is, we believe, a situation that requires an immediate and decisive regulatory intervention, in order to ensure the proper functioning of justice.
This article was prepared, for the Blog of Costaș, Negru & Asociații, by Ms. Rovena Fetico (Arad Bar Association).
Costaș, Negru & Asociații is a civil society of lawyers with offices in Cluj-Napoca, Bucharest and Arad, which offers assistance, legal representation and consultancy in several areas of practice through a team composed of 20 lawyers and consultants. Details regarding legal services and team composition can be found on the website https://www.costas-negru.ro. All rights for the materials published on the company’s website and through social networks belong to Costaș, Negru & Asociații, their reproduction being permitted only for informational purposes and with correct and complete citation of the source.
