Today we share a headline that has caught our attention and that has a lot to do with the protection of the best interests of the child in the field of judicial proceedings. And the fact is that, just as judges must make their decisions based primarily on the protection of children, their welfare must also be safeguarded in their access to justice.
That is why it is striking that, according to figures provided by the Spanish Association of Family Lawyers (Aeafa), 55 percent of minors who appear in divorce proceedings do so in a “hostile environment”. What can we do to avoid this?
Minors in divorce proceedings: avoiding a “hostile space”.
The figures provided by this association, collected in the IV Observatory of Family Law, state that more than half of the children (55 percent) who go to court for a family crisis appear in the courtroom and on the same day of the trial where their parents are litigating, with the component of fear, tension and anxiety that this entails. In addition, only 6 percent of minors in Spain testify in a friendly and appropriate environment or room.
The remaining 35 percent do so in the judge’s office.
We must not lose sight of the fact that the experiences that minors live in a judicial environment are in themselves unpleasant, adding to the list of bad memories that can accumulate during a family breakup that has not been chosen by them.
In addition, the questions they have to answer during these proceedings are often difficult and place them in uncomfortable situations: it does not help to have to answer them in an environment where judges and prosecutors are in a formal situation, dressed in robes.
The trauma in these cases can be much greater when, in practice, avoiding this type of scenario is easy.
It is important to highlight the fact that the hearing of the minor is a common evidence in divorce or breakup of a couple, as well as in proceedings for modification of measures and domestic violence.
These are all complicated processes and, although it is logical and positive that children exercise their right to be heard when parents disagree on matters that concern them directly (especially custody and guardianship, visiting arrangements, place of residence, change of school, etc.), this does not mean that ‘anything goes’ when it comes to knowing their opinion.
Moreover, it is possible that the result of the examination of the child, which would be the interview or conversation in the presence of the judge and the Public Prosecutor, may not be entirely realistic if the child is intimidated in any way.
It should be noted that, during these interviews, neither the parents nor the lawyers are present, precisely to ensure greater privacy.
However, this also leaves children more unprotected in this type of situation.
Precisely the purpose of these interviews is that the child can express himself/herself freely and comfortably, something more complicated in a hostile environment.
Therefore, from Aeafa, and also from our office, we defend the idea of making available to children special rooms for the practice of this test, something fundamental not only for the welfare of the child, but so that the result of the interview is truthful and reflects the reality of the child’s opinion.
Likewise, it would be advisable to avoid having the examination of the child on the same day of the trial, since parents, lawyers, witnesses… will be in the same room, which may cloud the atmosphere and inhibit the minors.
However, the reality is different: the IV Observatory of Aeafa assures that 55 percent of the interventions take place on the same day of the trial, 20 percent on the same day but at a different time, and only 25 percent on a different date.
What can we do as parents to ensure that the child testifies in peace?
The room and the time of the examination are not the only determining factors: of course, the information available to the minor about his role in this process is essential for him to feel comfortable and at ease.
It should also be remembered that the examination of minors is not always necessary: this will be the case when their opinion has an impact on the judicial decision and when they are mature enough to testify, usually from the age of 12.
In these cases, it is common for parents, in their crusade to ‘win’ the process, to contaminate the child with an excess of information and specific requests about what he/she should declare during this examination.
In this way, the child may feel great pressure to please each or one of the parties: in his or her head, it is easy to end up thinking that the outcome of the process will depend on his or her statement and that subsequent feelings of guilt may be generated.
That is why it is important that, as parents, we avoid putting pressure on children, giving this exploration the importance it really has: it is a space in which the child should express his or her opinion, without feeling that it will depend on ‘punishing’ or ‘rewarding’ one parent or the other.
The child should be clear that the final decision will be made by the judge, avoiding that he/she carries any weight in relation to the process and its resolution.
If you need legal assistance in a divorce or separation proceeding, or modification of measures, please contact our team, get in touch with our team of lawyers in Barcelona.Remember that our approach is complete and that we also work with psychologists, promoting dialogue and mediation for a healthy breakup.
