On Wednesday April 7th 2021, a Facebook Live Event by the Network for Children’s Rights about the proposed new bill regarding shared custody, was met with great interest, multiple shares and active participation of our online audience, which was reflected by the over 380 Facebook comments.
The constructive discussion that ensued, focused on all the points that have create friction and have sparked a deeper public dialogue on shared custody, including within the sphere of Social Media.
The panel was comprised by:
- Michalis Stathopoulos: Emeritus Professor at the Law School of Athens- Academic, former Minister of Justice.
- Sofia Koukouli – Spiliotopoulou: Lawyer, member of the Legislative Drafting Committee of Law 1329/1983.
- Marios Andrikopoulos: Lawyer, Member of the Legislative Drafting Committee regarding the Reform of Family Law, administrator of the page “Action against Parental Alienation”.
- Sofia Vgenopoulou: Child psychiatrist.
Interventions were made by:
- Miranda Papadopoulou: President of the Network for Children’s Rights Executive Board.
- Stella Belia: Representative of the organization Rainbow Families addressed to LGBTQI + parents and members of the LGBTQI + community who wish to become parents or want to defend their right to parenthood.
- Panos Christodoulou: Director of the Network for Children’s Rights.
- Pelopidas Nikolopoulos: Coordinator of Advocacy for the Network for Children’s Rights.
The discussion was moderated by Panagiotis Nikolopoulos, Assistant Professor at the Law of Athens – 2nd Vice President of the Family Law Society.
The following are the full positions and comments made by the NCR, in the context of the public discussion on the bill for shared custody that was conducted by Οpengov.gr:
I.As there is a desire to establish a truly child-centered law, which would shape Family Law to be child-centered and avoid meeting the wishes and needs of parents to the detriment of their children, we would like to point out that every child is unique and has their own personality and rights, which must be respected. Therefore, the “best interest of the child” should not be vague but specific to each child, raised by specific parents with their characters and personalities, which must be considered as such.
The law should offer the Court the opportunity to select the most appropriate form of custody and parental care for each individual child. Unfortunately, the current bill’s several proposed provisions prove that it does not serve the real interest of children, but rather serves the interest of parents. Furthermore, if we seek to establish a pioneering law securing the best interest of children, as described in Article 3 of the International Convention on the Rights of the Child (ICRC), which has been a law of the Greek State since 1992, Greek Legislators must ensure that every child, depending on their maturity and age, will have the right to independently request the provision of parental care and the modification of the conditions for the exercise of custody and the right of communication.
This provision is in accordance with Article 12 of the International Convention on the Rights of the Child: “Signatory States should guarantee the rights of every child to express their views in matters concerning them, depending on their age and degree of maturity. 2. For this purpose in particular, the child should be given the opportunity to be heard in any administrative or judicial proceedings concerning them, either directly or through a representative or competent body, in a manner compatible with the procedural rules of national law”.
The procedure can be carried out through the appointment of a special commissioner in the minor child according to the provision 1517 of the Civil Code and the child can choose how he will be represented to freely express his opinion (according to paragraphs 35 and 36 of the General Comment no. 12 of the UN Committee on the Rights of the Child of 20 July 2009, available here: https://www.refworld.org/docid/4ae562c52.html, pp. 11-12) on one of the most important issues concerning it, such as is his upbringing and the care of his face. In fact, the Civil Code in cases of similar importance, such as the adoption of children, in article 1555 par. A of the Civil Code, regarding the consent of the minor to his adoption, provides that: has completed the 12th year of his age, unless he is in a state of mental or intellectual disorder that decisively limits the function of his will “. In view of all the above, it is proposed to add a paragraph with the following content: and the modification of the conditions for the exercise of custody and the right of communication, as defined above by the court “.
Following, a significant omission of the bill is the fact that it does not introduce the establishment and operation of the institution of family courts. Family courts will consist of trained and specialized judges, engaged only in the adjudication of family court cases. Additionally, mental health professionals will provide support to the operations of the courts, especially child psychologists, who will be specialized in assessing the development of children, experienced in communicating with children and adolescents. It is important these professionals have knowledge of the language and media outlets used by children and adolescents, showing sensitivity to each child’s cognitive level and life experiences.
It is important to note that the child’s parents may also need support in order to accept the child’s participation in communication decisions. All of these difficult, hard to mitigate and complex situations involving children, require an interdisciplinary approach (with Child Psychiatrists, Psychologists, Social Workers). It is impossible to solve these issues only under the guidance of Justice, no matter the level of training received by Judicial Officers. The participation of children in the appropriate way of communication, support, knowledge, by engaging with other professionals is the only way to respect their future life.
A bill has already been submitted to the Ministry of Justice for the introduction of the institution of family courts since 2014, however, no Minister has shown interest in promoting and establishing these courts. In conclusion, we would like to point out that this bill does not take into account the International Convention on the Rights of the Child (ICRC), which binds all governments that have ratified it (such as ours with Law 2101/1992) to:
-Promote the philosophy of respect for children.
-They change the view of the child from an object needing protection to a rights bearing individual.
-Challenge the traditional views that children are passive recipients of care and protection.
-They insist that children must have all their needs covered and that is what adults are obliged to do.
The ICRC establishes the emerging perspective of children as they grow up and encourages respect for children within the community and family:
-Children must be heard and their views must be taken seriously.
-Children’s abilities to make decisions as they grow older should be recognized.
-Parents and communities must consider their best interests when making decisions about matters that concern them.
-The fact that the interests of children are not always the same as those of their parents must be recognized.
- Commentary on the articles of the bill
In article 5 of the proposed bill (replacement of article 1511 of the Civil Code) the reservation “… if the opinion of the child is judged by the court that it is not a product of guidance or submission”, which has been added, should be deleted, as contrary to the best interests of the child. This addition is in complete contradiction with the ICRC and the principle of equality, as it provides for the separation of children into those who have the right to be heard and those who are excluded, in clear violation of Article 12 of the ICRC. The law must not restrict the judge, as the latter must be able to freely assess the opinion of the child and judge whether it comes from free will or not. In this, the contribution of mental health professionals will be very important.
Subsequently, the references to the words “continue” and “equally”, in Article 7 of the proposed bill (replacement of Article 1513), in the sentence parents “continue to exercise…. parental responsibility equally”, are misplaced, as even in the exercise of parental responsibility when there is no separation or divorce, as described in article 1510 of the Civil Code, the parents still exercise parental responsibility. That is, while the law does not provide for harmonious cohabitation in the exercise of parental care, will it be provided after the separation or divorce?
Regarding Article 13 of the bill (replacement of Article 1520 of the Civil Code) and the provision for a presumption of the right of communication in 1/3, the following has to be said: As mentioned above, any adjustment should be made on the basis of the actual interest of each child, therefore, the communication that the child will have with the parent who does not live in the same household, cannot be quantified by law, as it will concern each specific child who experiences differently the separation or divorce of their parents and whose needs and interests must be valued first and foremost.
The quantitative regulation of communication and the introduction of a presumption of 1/3 in terms of financial transaction or property disputes is very inappropriate, contrary to the interest of the child and can create even greater tensions, as well as practical difficulties in its implementation. In any case, the presence of both parents in the life and upbringing of the child is necessary, with the exception of abuse and domestic violence or crimes against sexual freedom or crimes of sexual exploitation. Therefore, the presumption of 1 / 3 needs to be replaced by the provision of the bill of the Legislative Draft Committee for “the right to the widest possible personal communication”.
With this provision, the judge will regulate the communication, taking into account all the individual circumstances of the case and the needs of the child.
Also, both in article 13 par. 1 subsection 4 (replacement of article 1520 of the Civil Code), regarding the exclusion or restriction of communication and in article 14 par. 2 point f (replacement of article 1532 of the Civil Code), for cases of bad parental care, the provision of irrevocable conviction in the event of offenses of domestic violence or crimes against sexual freedom or crimes of sexual exploitation of sexual against the child is dangerous in any case.
As it is known, in order for a court decision to become irrevocable, it can take up to eight (8) years, during which time the child can continue to be abused and subjected to the criminal actions of their parent, without being able to protect themselves. Therefore, the provision for an irrevocable court decision must be removed without contradicting the Istanbul Convention. We have recently harmonized law 3500/2006 with this Convention, and it is in force with the amendment of Law 4531/2018, which provides the possibility of imposing restrictive measures, even banning communication, from the moment the victim files a lawsuit.
Finally, the promotion of the institution of mediation, as it is mentioned in articles 6 (replacement of article 1512 of the Civil Code) and 21 of the bill, should be regulated very carefully. If the provision of Article 21, which provides for family mediators, does not provide that they should be properly trained child psychologists or professionals from the field of mental health, this provision will result in the annulment and invalidation of mediation, non-resolution of disputes and ultimately not easing the courts.
III. Remarks on the psychology of children
First, we would like to point out that the presence of both parents actively in the life of the child is of major importance for their psychosocial development.
The above presupposes that the child is to spend as much time as possible equally distributed with both parents. It is obvious that the above condition is difficult to exist in cases where the parents are in conflict and there is tension and difficulty in communication with each other, something that can burden the exercise of their parental role.
It is very important that there is a high level of counseling for the family and especially for the parents in order to work out the conflicts and the way of communication and to strengthen their cooperation regarding the child. At the same time, stability is of paramount importance for children’s development and needs to be ensured. Therefore, it is crucial that the child has a more stable environment (school, home, friends, activities) and schedule.
Furthermore, decisions concerning children must be made keeping in mind that children are not a homogeneous population, but have different needs depending on their age and developmental stage, as their developmental needs are dynamic. In all of the above it is necessary to give space for the child to express their opinion and desire about his living conditions, without this meaning that their needs and desires cannot change over the years.
In conclusion, in many cases the role of exploring the dynamics in the family and the psychological state of children involves different specialists, sometimes not properly trained, it will be important to staff services and agencies that support families with children, with professionals (social workers, child psychologists, child psychiatrists, etc.) who will be specially trained and in charge of this work and will be in direct cooperation with the judicial system. Through these services, it will be possible to assess the needs of children, but also their support, as well as parental counseling, ensuring that decisions regarding the care of minors will be made based on their best interests.