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File No. OGH – 7Ob95-02z

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Court/Judicial body: Supreme Court of Austria
Date: May 22, 2002 CRC
Provisions: Article 12: The child’s opinion
Domestic provisions: Non-Contentious Proceedings Act (Außerstreitgesetz – AußStrG), Section 182b – Admonition Obligations

Case summary

Background: As part of a consensual divorce agreement proceeding, the trial court ordered that the separating couple’s child share her views with regard to custody and visitation rights. The child’s mother sought to prevent this hearing on the grounds that it would adversely affect the child’s welfare as it would cause a conflict of loyalty for the child. This request was denied by the trial court, but overturned on appeal with the higher court ordering that the alleged conflict of loyalty be investigated.

Issue and resolution: Right to be heard. The Court held that declining to hear a child’s views on custody and visitation issues in divorce proceedings may only be justified where sharing those views would be detrimental to the child’s welfare or the child did not have an understanding of the proceedings.

Court reasoning: The Court emphasized that Austrian law, in accordance with Article 12 of the CRC, recognises the right of children to be heard on custody and visitation matters that affect them. Accordingly, the cases in which a court may choose not to seek the views of the child are limited. As at issue in this case, it would be possible not to seek a child’s views where asking a child to share his or her views would be to the detriment of the child’s welfare. This would include cases where conflicts of loyalty exist and the child would be put in a position to chose between his or her parents, which could be detrimental to the child’s development.
Excerpt citing CRC and other relevant human rights Page 2: “In accordance with Article 12 (2) of the CRC, minors are to be heard in custody and visiting rights matters affecting them.”

CRIN comments: CRIN believes that this decision is consistent with the CRC in that, as recognised by the Court, children capable of forming their own views must be given an opportunity to express these views freely and to be heard in legal proceedings that affect them. However, it must be remembered that this is a right and not an obligation, and that children should not be forced to share their views in custody matters where they do not wish to. Equally, children should not be prevented from sharing these views because it is determined to be in their best interests not to do so. Rather, it should be determined whether the child is capable of and wishes to express his or her views on a matter.

Citation: File No. OGH – 7Ob95-02z

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