NHRCK expresses opinion on the Ministry of Justice's "Bill for Partial Amendment of the Civil Act"
October 20- The NHRCK has determined that the contents of the "Bill for Partial Amendment of the Civil Act" (hereinafter "amendment bill") announced by the Ministry of Justice on July 23, 2009, are inadequate for the protection of children's rights, and it has expressed its opinion to the Minister of Justice that it is desirable to prepare a revision or supplementary measures related to the provisions concerned.
Following its examination of the bill, the aim of which is to improve the parental authority system, the NHRCK expressed its opinion that the bill will have a significant impact on children's rights.
The main contents of the opinion are as follows.
"Right to designate place of residence" and "right to take disciplinary action" of the person holding parental rights overemphasized
Included in the bill are provisions such as "A child shall reside at a place designated by the person holding parental authority," and "The person holding parental authority may take necessary disciplinary action in order to protect or educate the child . . .,"
However, these provisions run too far in the direction of emphasizing the rights of parental authority. Children are not only subjects of protection, but they also possess the right to make requests regarding needed protections and support as they grow into fully developed persons. Also, the direction of various nations in the world shows a trend toward emphasizing the responsibilities and duties of parental authority. Consequently, the Commission determined that it is desirable to revise the provisions on the right to designate the place of residence and the right to take disciplinary action so as to place a greater emphasis on the responsibilities and duties of the person holding parental authority while respecting the core rights of minors.
Gap in the protection of minors
Article 909-2 paragraph 3 of the amended bill newly inserts a provision stipulating that when a person having exclusive parental authority dies, if the designation of a living parent as the person having parental authority is determined to be inappropriate, the court may appoint a guardian under its own authority, or upon the request of a relative of the child or a public prosecutor.
However, considering the fact that even under the present system the protections of the court acting under its own authority are rarely enforced when addressing problems such as those related to the raising of children following a divorce by agreement, supplementary measures giving practical effect to the court's official intervention should back up the court's authority.
Need for clearly stated provision ensuring the child's right to freedom of expression and a lowering of the standard age for hearing the child's views
The Convention on the Rights of the Child ensures the child's right to freedom of expression. In accordance with the Convention, the UN Committee on the Rights of the Child has expressly recommended our government to take effective measures on such matters.
However, Article 909-2 paragraph 6 (Appointment of Proxy for Guardian's Duties), and Article 924 (Adjudication of Loss of Parental Authority) of the amended bill do not contain provisions for considering the views of the child. Consequently, the Commission determined that it is desirable to have written provisions set forth on the hearing of and respect for the views of the child.
In addition, the current act in force uniformly sets the standard age for hearing the views of the child at 15, but considering the state of the physical and mental development of children, this age of recognition is very high and it does not conform to the intent of the legislation, which is to protect the best interests of the child.1) Consequently, a lowering of the minimum age is needed such that at least the views of a child of 12, the age at which children enter middle school, may be directly confirmed, and where it is difficult for the child to adequately express his or her views, a system for confirming the views of the child in a proper manner through the support of experts is needed.
Need for improving system of guardian supervision
The function of supervising guardians under current law belongs to the family council, but due to the weakening of bonds between relatives, the family council's supervisory function over guardians is in actuality nearly ineffective. Though the amendment bill enables the court to appoint guardians from among relatives within the fourth degree of relationship or other suitable persons (Article 909-2 paragraph 5), there is at the same time a need to enhance the court's guardianship function so as to leave no gap in the protection of children and to explore schemes for substituting the family council with an objective third-party guardianship supervisor who can speak for the interests of the child.
The NHRCK expects that the government will consider the current amendment to the Civil Act more closely with a view to the protection of children's rights.
1) In Germany, during trial proceedings in cases involving family matters, children over the age of 14 are given the right to request a confirmation of views, children aged 6-14 have their views confirmed by direct interview, and a guardian ad litem (verfahrenspfleger) is appointed to hear and forward the views of children under 6.
