Proposition 50K0576

Projet de loi modifiant diverses dispositions légales en matière de tutelle des mineurs.

General information ¶

Submitted by

Groen Open Vld Vooruit PS | SP Ecolo MR Verhofstadt Ⅰ

Submission date

April 7, 2000

Official page

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Status

Adopted

Requirement

Simple

Subjects

civil law infancy guardianship

Voting ¶

Voted to adopt

Groen CD&V Vooruit Ecolo LE PS | SP Open Vld N-VA MR FN VB

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Discussion ¶

July 6, 2000 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, Mr. Minister, colleagues, the Justice Committee discussed the draft on guardianship during five committee meetings. This design already has a long history. A working group was set up ten years ago by the then Minister of Justice Wathelet. His legal successors approved a preliminary draft that was sent to the State Council during the previous legislature. The current minister, following the opinion of the State Council, has made several changes. Then he submitted the draft to the Chamber and then it was discussed in the Justice Committee. Some colleagues noted during the general discussion that Parliament was only involved in the final phase of this draft. In any case, the Minister has confirmed that he has respected the work group’s strengths, strengths that are reflected in this draft. Let me briefly outline these strength lines. First, the disappearance of guardianship applies if there is still a long-lived parent. This means that parental authority persists as long as a parent remains alive. Second, the family council is abolished. Third, the abolition of the family council gives the peace judge more responsibility in managing the property of the minor. He takes over the role of the family council. Fourth, guardianship is no longer mandatory. A guardianship assignment may be refused. A fifth force line is the modernization of the management of the goods, which implies a slightly less rigid and more smooth management, but the control by the peacekeeper remains. He can act when there is a conflict of interests and as if the alarm bells in discussions about education. There is also more attention to the minor who can be heard about his education and the management of the property. Furthermore, the possibility of dividing the custody in relation to the person and the property is opened. However, the Minister expressly stated that this could only be applied exceptionally. In the general discussion, it was also noted that there was no streamlining between the various forms of guardianship. It was mainly referred to the problem of unaccompanied minor foreigners. For the amendments made to the draft law through amendments and following the hearings, I would like to refer you to Mr Herzet.

Mr. Speaker, Mr. Minister, dear colleagues, I would like to supplement in an extremely stunning way Mr. Speaker’s excellent report. by Verherstraeten. Therefore, I will limit myself to mentioning the hearings and some amendments. If you allow me to do so, I will make a few general considerations. I welcome, first of all, Mr. Minister, Mr. President, dear colleagues, the constructive and positive way in which the work has been carried out in committees, which has enabled this project to be the object of a very broad consensus most of the time. It is true that this very complex project has a considerable impact on the human level. You are ⁇ all aware of this. I would also like to welcome the minister’s openness, who accepted many amendments from both the majority and the opposition – we, for our part, of course, accepted the government’s amendments – aimed at improving the quality of the text as well as further easing the procedure initially envisaged in the bill. Our committee conducted two hearing sessions. The first took place on May 2, 2000. On this occasion, Professor Vieujean and Mrs Verrycken, President of the Royal Union of Peace Judges and Police, were heard. I would like to remind that these two people were part of the working group responsible for dealing with this matter of guardianship. I would also like to emphasize the importance and quality of the work done. On 9 May 2000, we heard the Royal Federation of Notaries of Belgium in all its components – something quite rare to emphasize – and in particular Ms. Casman and MM. Gregory and Wauters. In the annex to this report, you will find the notes, reports and proposals of the Federation of Notaries. I would like to recall here the quality of the work of the Federation of Notaries as well as the speed with which they reacted by depositing, at the request of the commission, important texts. These various reports and hearings proved to be very useful in that they helped to take into account the daily practice in the matter. I would like to emphasize a few important points highlighted by the various speakers and proposed for our reflection. Everyone welcomed the removal of the legal guardianship of the surviving parent. The maintenance of the survivor’s authority has also been widely pleased by all the members of the Justice Commission. Some regretted that other disability schemes were not considered globally in view of the abolition of family council. It should also be emphasized the significant increase in the work of peacekeepers and the increase in their skills. The appointment of the tutor by the peace judge was approved by all as an extremely positive element. An unanimous wish to be able to expand the circle of persons to be consulted in the event of the opening of custody was expressed. Finally, it is extremely important for the surviving parent to be able to designate a potential guardian from his lifetime under the a posteriori control of the peacemaker. We have also widely debated the ability or inability of the surviving parent to manage the minor’s property. Some have addressed in a very explicit manner the difficulties in families disunited, broken, recomposed, in the event of the death of one of the parents. Some issues have been the subject of a very broad debate. One of the most important was the possibility of systematically dividing custody by appointing a custodian for property and one for the person. Several members favored this possibility, but the government preferred to reject these amendments on the pretext that they were a potential source of conflict, which can be admitted. All the hearings and discussions of the Justice Committee were included in the report and some amendments reflect this. Amendments adopted - no matter today whether they were filed by the opposition or the majority - include: - the possibility to refer the peacekeeper by simple letter, which constitutes a significant simplification of the procedure; - the extension to the brother(s) and/or sister(s) of the minor's parents, persons whom the judge can consult; - the acceptance of the inheritance under the benefit of inventory; - the possibility to designate a guardian by declaration before the peacekeeper provided that he acts jointly; - the notion that guardianship is a personal charge; - the obligation for the guardian - is an equally extremely important element - to report on the measures he has taken in order to develop the minor's person; - in the case of exceptional separation of guardianship, the guardian agrees to both the person of the minor and the persons concerned. These are the amendments that have been adopted. The minor may be heard regarding decisions concerning him or her personally or regarding the management of his or her property. This is also an important element. This bill was voted unanimously in the Justice Committee because in fact, this bill meets the goal that really underlined it, namely giving priority to the child by paying more attention not only to the management of his property - this was normal but also to his person and therefore to the quality of his life.

Mr. Speaker, Mr. Minister, colleagues, first of all, I would like to thank both rapporteurs for their report. They highlighted the importance of this bill, which will be adopted today in the plenary session after a fairly intense discussion in the Justice Committee. Mr. Minister, both reporters have emphasized that we are taking an important step forward here. It is important that we find a number of elements in this draft law of which we can largely support the strength lines. It is a good thing that custody today will only be applied if the child no longer has any parent. This will address the problem that the longest-lived parent currently has when facing a large number of administrative formalities following the death of the partner. This, of course, leads to crushing conditions. Due to the fact that guardianship is only applied when both parents have died, this can be substantially undermined. The family council is abolished. This is an institution that was actually overlooked and had become a mere formality. However, this left a number of obligations and obstacles for the persons involved. The role of the peacekeeper is expanded. For us, the peacekeeper must first and foremost remain the low-threshold judicial authority. We believe that the peace judge is best placed to act in such matters. Another strength line that we fully support is that everyone can refuse to take custody. The position of the supervisory guardian is revalued. Furthermore, it is not insignificant that more attention is paid to the person of the minor. Colleague Herzet emphasized this. For example, the minor is entitled to hear in matters relating to his person from the age of 12 and in matters relating to his property from the age of 15. Although we can find ourselves in the strengths of the design and will approve this design today because this means a major step forward, this is still a missed opportunity. In fact, we could have used the discussion of the draft law to examine a number of other protective statutes, in particular the provisional regime, the declaration of incompetence, the assistance of the judicial counselor, the administration following the internment, and so on. Therefore, we continue to have a fragmented legislation regarding the various statutes. It would have been a good opportunity to make our legislation more coherent within this draft law. Then, for example, we could have developed a single arrangement for the management of other people’s property. The regulation of the current Article 488bis of the Civil Code could have served as a model because it is a modern, smooth, low threshold procedure that has proven its usefulness in practice. Mr. Minister, this is a missed opportunity, especially since this has been discussed in the working group for quite a long time. It is regrettable that we went on this bill fairly quickly, despite the intense work in the Justice Committee. You will agree with me, Mr. Minister, that the other statutes are, on certain points, as restrictive as the current situation of guardianship. If we had spent more time, we could ⁇ have achieved a more coherent system. Through the submission of amendments, we have sought to reconcile the two statutes. Amendment 11 was intended to make the custody authorisations more coherent with the provisional authorisations. In doing so, we took into account Mr. Goutry’s bill on the provisional administration. Mr. Minister, I hope that in the context of the current discussions with the various political groups, we can also reach a more coherent overall on the status of the interim administrator. It is positive that amendment 11 was unanimously adopted in the Justice Committee. Mr. Minister, another element concerns the discussion of whether it makes sense that parents should be authorised for certain legal acts. You will remember this discussion where Professor Cassiman drew attention to this problem, cf. article 378 of the Civil Code, in particular the authorization of the court of first instance for those acts for which the guardian authorization of the family council must obtain a homologation by the court of first instance . Mr. Minister, we have asked the question whether parents should not have full powers. In the context of the discussion, we have indeed stated that this is a political choice. Amendment 15 was submitted. Mr. Minister, you answered that the fullness of the powers of the parents is contrary to your submitted bill. The majority also voted in favour. We remain in the position that this is not the case. The draft law concerns guardianship and not parental responsibility. That is something completely different. It is, in our view, logical that parents have more powers than guardians. However, this did not prevent our amendment from being rejected by 11 votes against 1. Mr. Minister, at the end of the discussion in the Committee on Justice we submitted a number of amendments that we have taken over from the Federation of Notaries. We acted as a ghostwriter, which does not mean that we agreed to all the comments made by the notaries. Mr. Erdman, I found it important that these comments were discussed. I think it is important that we have been able to speak both for and against a number of amendments. A number of amendments of a technical and legal nature were accepted, in particular the determination of the powers of the guardian in the hypothesis that two guardians were appointed. Collega Herzet wanted to go much further in this regard but she finally agreed to the compromise we have proposed in this regard. There is the gap due to the fall of the guardian. An amendment was also adopted to make the authorisation coherent. This means that in the Committee on Justice we have had a very good cooperation between the working group and the Federation of Notaries and the members of the committee. Mr. Minister, the People’s Union Group will approve this bill. We wanted to go a step further, but this does not prevent us from approving this bill today. I would like to ask you today to pay due attention to other aspects of this problem. There are still striking situations that also deserve a solution. Mr. Minister, I believe that today we are taking a big step forward. We will therefore approve this bill with conviction.

Mr. Speaker, Mr. Minister, Ladies and Gentlemen, I will be very brief. It is, of course, no surprise that our group will approve this bill. We will approve this bill not only because it is a work that transcends the legislature, but because we agree with the strengths of this bill. Nevertheless, I would like to make a few comments. First, I would like to comment on the establishment of legislative work in which working groups continue to work for decades. I share the opinion of colleague Van Hoorebeke when he says that today we only regulate custody and not the other forms of custody. This may have to do with a choice that you made at the beginning and that you continue to follow. In the last ten years, however, there have been the necessary developments on the social level, especially in business and family law. Eventually, a final work is delivered that may not always follow the current trend. In the future, I believe that a shorter and more intensive way of working should be sought than in this case. For the rest, I will refer to what colleague Van Hoorebeke has already said. I will not repeat this again. Finally, I would like to clarify my amendment. I would like to express my misunderstanding because this amendment was not approved. In practice, there was a testamentary guardianship. If we approve this bill, this testamentary guardianship will be partially exhausted because the peace judge will in any case be given the last word when appointing the guardian. We agree with you, Mr. Minister, that the peace judge will do this conscientiously and in the vast majority of cases will appoint the guardian designated by testament. In 99% of cases, this will also be the correct appointment. However, in this way and with this design, I think that in 99% of those cases we will tax the peacekeeper meaninglessly. In fact, he will have to make a judgment that was already made in advance and that we could have saved him. When an argument for removing the testamentary custody is that this can cause conflicts between two families, this hic et nunc will also be the case. The conflict will therefore come to the surface at the sitting of the peace judge, especially when that people have heard. There is a good principle that was also included in the reasoning of the draft: in fact, we maintain parental authority when one of the two parents dies. One of the arguments was that in such cases it is painful to open custody or involve a family council or magistrates. This seems to be a serious interference in privacy. This applies not only if one of the parents dies, but also if both parents die. This is ⁇ true in the increasingly common situation of families where the actual educators of the minors are no longer the same as the natural parents. Suppose that one of the two is not the natural parent, but has been the educator of the minor child for years and has supported and educated the minor year and day material, logistical and financial, but also morally. If then a testamentary guardian has been appointed, it will also be considered in such cases as a strange interference and in the end a peace judge must judge about this. Usually, it will confirm the confirmation of the actual state of affairs in judgment, but nevertheless it will be regarded as an intrusive interference. People will wonder why another peacekeeper needs to appeal in the context of the actual situation and the testamentary designation. In this sense, I regret that the testamentary custody was not abolished, but partially removed. I hope this can be corrected by amendment.

First of all, my congratulations to the rapporteurs. In this context, I am always full of admiration for the efforts made by the services to yet timely prepare the report and properly represent rather busy discussions and hearings. The speaker correctly pointed out that this is a heritage, Mr. Minister. One of your predecessors established the commission in 1990. Apparently, naming names is sometimes necessary. Minister Wathelet established the committee. Minister De Clerck followed them. Minister Van Parys has supported it and Minister Verwilghen now inherits the workpiece. In those circumstances it is indeed true that the committee has been able to deliver this workbook in ten years, which has allowed to submit a draft law after examination by the Council of State. I also thank the members of the working group that we invited and who provided very useful information, as well as the Federation of Notaries, who surprised me somewhat by its accuracy. I never doubted the expertise of those who were delegated. They have made useful contributions and have not shown any lobbying or involvement. Each member of the committee contributed to the whole from its own point of view. Mr. Verherstraeten and Mrs. Herzet emphasized the major strength lines. I will not go into this anymore. There is a huge responsibility on the peacekeeper. The best interests of the child will always have to be considered primarily, both in terms of the person and in terms of the protection of the property. Many, and Mr. Van Hoorebeke in particular, have pointed out that we should come to a uniform system of protection for the property of all the disabled. I am therefore pleased that Mr. Goutry’s proposal will be able to be scheduled next week. Let us hope that it is now in a final phase, where everyone can agree on a formula. This will contribute to the uniformity that was promoted and which is essential. I will not repeat what Mr. Verherstraeten recently said. When we opt for a fullness of authority from the surviving parent, then we should not be blind to today’s reality. The surviving parent is, in some cases, not necessarily the best-placed person. I think of parents who are really separated, of situations where there has been intervention of third parties, of circumstances where the education was given for years by new spouses. I am not talking about the indisputable contribution that grandparents sometimes make in those circumstances. We must be aware of this, but within the framework of this draft we must also give confidence to the peace judge who, with all the information that he will now be able to obtain and possibly obtain himself, is well placed to carry out this control task. Mr. Speaker, as regards the draft itself, in the context of possible subsequent discussions, I would like to emphasize that in the consultation committee we have been able to reach a pragmatic approach to the problem surrounding Articles 77 and 78 of the Constitution. We performed the division to the best of ability. The Senate will at least be affected by one of the drafts. Since one draft concerns a matter to be assessed bicamerally, the other draft will be evoked by the Senate and may be sent back to the consultation committee if one cannot agree on the split at some point. This is the pragmatic solution to this problem in the hope that this design could effectively quickly become law. 1990-2000, it would be nice. I still knew that there was discussion about the role of the Senate because bills went back and forth over ten years. Now this is only going in one direction. Of course, we still have to wait to see what the discussions in the Senate will bring. For the benefit of the minors who need to be protected, let us hope that a solution can be offered here.