In Turkish legal system, the guardian ad litem is applicable in some of the cases, especially if the child is a party of the case held before Turkish Courts and these specific cases are generally determined in the Turkish Civil Code numbered 4721. According to Article 426/2 of Turkish Civil Code, the guardian can be appointed if the interests of the legal representative and the interests of the minor or the restricted person conflict. The most typical cases where the case will be filed by the guardian or the court will appoint a guardian to the child is the paternity cases as such case will require the representation and consideration of the child apart from the parent.
Turkish system has two options of the guardian: 1) Guardian for the representation and 2) Guardian for management. The related person can ask from the court to appoint a guardian to the child or the court can request to appoint a guardian to the child if there is a pending case filed by the parent of the child and if the child is subjected (a party) of it. The type and the role of the guardian will be determined by the court. The guardian represents the child and asks the court to take the related measures upon the request with the consideration of the best benefit of the child. The guardian will be present in each hearings after the appointment.
The age of 8
In the recent practices of the Turkish Supreme Court, the child who reaches the age of 8 is considered as mature to provide the opinions during the proceedings such as in the divorce cases. Turkish civil legal system have a connection with the pedagogue/psychologists of the court and receive the expert report regarding the child if the custody or establishment of the child is requested during a pending case. The Turkish Judge can decide to listen the child on his or her own at the court while the pedagogue is present with the child and in such action, the judge asks the parties’ leaving the court room but the representatives of both parties can be present during the interview of the child.
The civil cases that the public prosecutor is involved are the child abduction cases filed in relation to the Hague Convention on the Civil Aspects of International Child Abduction and in these type of cases, there is not any guardian appointed for the child but the court can decide to receive the opinion of the child if the child is mature enough according to the practices of the Turkish Supreme Court or the pedagogues can interview the child alone. The Turkish Court has the sole authority to consider the best benefit of the child.
By Mert Yalçin, Yalçin & Toygar Law Office, Turkey
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