Children’s rights in custody and access proceedings

The best interests of the child during divorce and custody proceedings in Belgium: achieving child-friendly litigation

This project describes the implementation of children’s rights in custody proceedings and evaluates procedural measures to enhance children’s wellbeing and to reshape Belgian family law.

Supervision: Prof. Dr. Yves Haeck and Prof. Dr. Gerd Verschelden

Researcher: Evelyn Merckx 

Research funding: Faculty of Law, Ghent University

The first part of the PhD describes the framework embedded in international and regional children’s rights that member States have to adhere to during custody and access proceedings. It examines binding provisions, s

uch as the Convention on Children’s Rights and the European Convention on Human Rights, but also draws inspiration from non-binding sources such as the guidelines on child-friendly justice.

The second part of the PhD will focus on the consequences custody and access proceedings have on children’s wellbeing, by focusing on psychological and sociological research. Next, the researcher will analyse Belgian family law cases to discover where children’s rights are not being adequately protected. After the discovery of these problem areas, the researcher will suggest procedural safeguards that could help protecting children’s wellbeing.

The framework of the PhD concerns the following research question and sub-questions:

Central research question: How can the interests of the child during divorce proceedings, hereby imposing custody decisions or approving parental agreements, be effectively protected in the Belgian legal system?

Sub-questions:

  1. Which provisions of international human rights law and international children’s rights can be applied during and after divorce and custody proceedings? What is their scope and direct effect/applicability?
  2. How are these provisions currently being implemented by Belgian family courts? Which problems arise during and after Belgian custody cases that the current application of these principles cannot alleviate?
  3. What are the difficulties that judges and professionals encounter during divorce and custody proceedings?
  4. How do children perceive the divorce of their parents? Do they experience psychological suffering?
  5. How can existing safeguards be improved in order to protect the interests of the child during divorce and custody proceedings?

5.1. Is the right to be heard effectively implemented in divorce proceedings? What are the strengths and weaknesses? Can it be improved?

5.2. Is a child adequately inform

ed of its rights concerning the divorce of its parents? Can this be improved?

  1. Should additional safeguards be put into practice in order to protect the interest of the child during divorce and custody proceedings?

6.1. Should children be appointed a guardian ad litem or a youth lawyer? If so, how can this be achieved?

6.2. How should a framework to evaluate the best interests of the child be construed?

6.3. Should minors be granted the (conditional) autonomous right to petition? If so, how can this be achieved?

6.4. Should parents and lawyers be supervised more closely? If so, how can this be achieved?

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