The guardian ad litem 

What is the role of the guardian ad litem in a Hague Convention case?

• Does the court appoint a guardian ad litem?
• What is the task or what are the questions he or she has to answer?
• Does (s)he have a talk with the child?

In what other way is the voice of the child heard in a Hague Convention case?

Different lawyers from different countries explain the role of the guardian ad litem, or in what other way the child’s voice is heard.

Poland

The voice of the child in proceedings in Poland

There is no guardian ad litem in Polish legal system. Neither in parental abduction cases nor in family cases. Abducted child’s interest in Hague convention cases is compulsorily represented by the prosecutor. The prosecutor can also participate in other family cases before the court. In any proceedings, the prosecutor has the same rights as other parties.

Public prosecutor

According to Polish law the participation of the public prosecutor in family and guardianship law proceedings is indicated especially in cases:

1) for annulment and for establishing the existence or non-existence of marriage;
2) for the denial of paternity or maternity and for determining the ineffectiveness of acknowledgment of paternity;
3) for adoption by foreigners or Polish citizens with residence or habitual residence abroad;
4) for termination of adoption;
5) for the removal of a person subject to parental authority or under guardianship;
6) for termination of parental authority;
7) for an order prohibiting contact with the child;
8) for adoption of a child not reported to the adoption center.

Child abduction cases

Returning to Hague convention cases – each party is asked at the beginning of the proceedings about the procedural position. In Hague convention cases usually the prosecutor refrains from taking a position until the conclusion of the proceedings. Frankly, this means nothing and is the typical way prosecutors handle Hague Convention cases. A prosecutor has no contact with other parties or the child himself – builds knowledge of the case on the basis of the case file and evidence presented by the parties.
It is also possible to ask the child ombudsman or the human rights ombudsman to participate in the proceeding. If the ombudsman agrees to take part in the proceedings, he becomes a party and has the right to present his own position, file an appeal or file a cassation complaint.

Child interview

The voice of a child is an essential part of family cases (also in Hagie convention cases) The child can be heard during the proceedings by the judge (outside the courtroom, often in the presence of a psychologist). The judge can also ask for the OZSS (a special institution that assists the courts with psychological and pedagogical opinions about the family) opinion. On this basis, the judge can decide whether and to what extent to take into account the child’s wishes in deciding the case.

The Netherlands

The guardian ad litem in the Netherlands

The guardian ad litem plays a major role in return proceedings before the court in the Netherlands.

In return proceedings, the court appoints a guardian ad litem (Article 1:250 of the Civil Code) for every minor aged 3 years or older. If an appeal is lodged, the appointment of the guardian ad litem continues during the appeal.

Appointment of special trustee

The guardian ad litem is appointed by the court after the first hearing, when it has become clear that a substantive hearing of the case will have to take place. The first hearing is the pro forma hearing, at which no decision on the request for a return order is yet taken. At that hearing, in the presence of the parties and the representative of the Child Care and Protection Board, discussions include whether the parties want to be referred to mediation and whether there is contact between the child and the left-behind parent.

The questions to the guardian ad litem

The guardian ad litem is instructed by the court to answer the following questions in a report before the next hearing:

– what does the minor himself indicate about staying in the country of origin and the Netherlands,

– to what extent can the minor express himself freely,

– to what extent can the minor oversee the consequences of staying in the country of origin or the Netherlands, and

– have any details emerged that are relevant to the decision to be taken by the court?

The work of the special guardian

The guardian ad litem will have at least 2 interviews with the child, without the parents being present. The special curator does not interview the parents and does not conduct any other investigation. He or she writes a report for the court with the findings, which is provided to the parties.

Child interview with the judge

Prior to the second hearing, the minor can have an interview with one of the judges, in the presence of the court clerk. If the minor wishes, the guardian ad litem may be present at that interview. The content of this child interview is summarised orally by the court for the parents and their lawyers at the hearing.

At the second hearing, the minor is not present but the guardian ad litem is.

The guardian ad litem’s report

The guardian ad litem’s report and what the guardian ad litem puts forward at the hearing may be important in answering the following questions:

– Is there resistance of the child against a return to the home country (art.13 para 2)

– Would return to the home country result in an intolerable condition (art.13 para 1 sub a)

If a minor makes statements indicating resistance, the court may also explain this as the result of a loyalty conflict. The court can then use the guardian ad litem’s report to determine how much weight should be given to the minor’s statements.

Continuity in the minor’s statements

When weighing the minor’s statements, it is also important whether the minor’s statements to the guardian ad litem are consistent with the minor’s statements during the child interview, and whether the court’s impression of the minor is consistent with the guardian ad litem’s impression of the minor.

Psychological distress

An example of this is the judgment of the Hague Court of Appeal of 10 February 2022. The 11-year-old boy showed to the guardian ad litem and during the child interview that he suffered from fears of a possible return. He revealed that the mere thought of having to return to Belgium evoked death wishes in him The Court concluded that a return would put this boy in an intolerable condition (an acute situation of psychological distress).

In the judgment, the court may request the guardian ad litem to discuss the judgment with the minor and, to this end, provide that the appointment of the special trustee continues for some time.

Read this text in Dutch.