GENEVA — Swiss children have no say in the courtroom. In the case of divorce, they are interviewed only one in 10 times, when listening to them should be the rule and not the exception. The practice depends on the cantons, or regions, of the country, on the judges and their sensitivity. It's a situation that angers children's rights organizations, which are taking the issue to the Swiss Parliament.
Interviewing children is pertinent not only for divorce cases but also for other domains such as education, health, recreation and immigration. The Federal Council has been asked to establish an accurate report on the matter and to make adjustments that will be processed during the parliamentary session.
In ratifying the 1991 UN Convention on the Rights of the Child, Switzerland guarantees that all children have the right to be heard in matters affecting them.
"This is far from being the case," says Daniel Stoecklin, a children's rights specialist at the University Institute Kurt Bosch. "It's ironic for a country so developed and that's such a champion of democracy," he says. "But the Swiss have a tendency to think that all is well at home, and that the issue of the rights of the child is only relevant in poorer countries."
Switzerland applies the convention by leaving so much flexibility that the exceptions are more so the rule. Micaela Vaerini is a lawyer specializing in family law who has witnessed many different scenarios in divorce cases.
"Some judges are more sensitive to a child's right to be heard and conduct an interview even in the absence of litigation," Vaerini says. "Other judges aren't as sensitive. They believe that a child is too young, and that it will be pointless, so they consider the reservations of the parents."
For example, she tells the story of two children who were to be placed in the custody of their mother. "The youngest wanted to stay with her [the mother]," Vaerini recalls. "The older one, a teenager, wanted to live with his father, with whom he shared interests and whose house was closer to his school. And despite the reluctance of the mother, who feared a lack of supervision, we ruled in favor of the child. The siblings were separated."
Vaerini is also awaiting a District Court ruling on an appeal that she filed. "A mother was suffering from anorexia and was hospitalized, and her child, a 12-year-old, was placed with a foster family without really being heard. For me, that's unforgivable. Even more so because he has a father!"
A paternalistic society
Stoecklin attributes the Swiss approach to the fact that the agencies serving children have a weak understanding of the UN Convention. There is confusion about the difference between the rights of children and the protection of children. There is also an adherence to a paternalistic approach, where agencies believe the parents or the authority figure know what's best for the child.
"The convention was developed in the spirit of emancipation in the 1970s and 1980s," Stoecklin says. "Since then, the traditional model has come to prevail once again. And we see it as well in the speech of young people who are the most fervent defenders of their rights."
He recommends several measures: better training for those working with policies regarding children (including the judiciary), the establishment of a universal policy regarding children, and the creation of an ombudsman to oversee issues related to children's rights.
Judge Florence Dominé Becker, in Neuchatel, regularly interviews children between the ages of six and 16. "In the case of disputes between couples, letting them know that their child will be interviewed allows the parents to face their responsibilities," she says. "But even when there are no disputes between the parents, it's important to hear what the child has to say because they also have a point of view, which is not always expressed."
This doesn't mean that the child's wishes will always prevail. Dominé Becker recalls a particular case in which the outcome seemed obvious — at first.
"The parents had agreed on custody matters," she recalls. "But when I interviewed the child, who was already 15, he told me that he would rather live with his father because of a conflicting relationship with his mother. So I called the father again to relay the wishes of the child, but unfortunately his work commitments kept him from becoming more involved. This case stuck with me because I felt like the child was relying on me, and in the end he wasn't able to get what he ultimately wanted."