Proposition 51K1673

Projet de loi tendant à privilégier l'hébergement égalitaire de l'enfant dont les parents sont séparés et réglementant l'exécution forcée en matière d'hébergement d'enfant.

General information ¶

Submitted by

PS | SP MR Open Vld Vooruit Purple Ⅰ

Submission date

March 17, 2005

Official page

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Status

Adopted

Requirement

Simple

Subjects

divorce housing child

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Discussion ¶

March 29, 2006 | Plenary session (Chamber of representatives)

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Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker.

The debate and discussions were very furnished and constructive in the Family Law Subcommittee; I also had the opportunity to make a circumstantiated report in the Justice Committee. The good work of the aforementioned subcommittee has enabled concise and concrete discussions in the Justice Committee. This is why I refer to my written report on the surplus.

Mr. Speaker, if you allow me to do so, I will directly link with my speech.

I cannot deny it to you. Since you have been very short for your report, you will also be short for your intervention.

Certainly Mr President! I will therefore speak briefly on behalf of the PS group in this debate on the bill submitted to us by the government and relating to equal alternate accommodation.

As I mentioned before, we had constructive and serene discussions both in the Family Law Subcommittee and in the Justice Committee.

Once again, I would like to praise the work done in the Family Subcommittee. This has chosen to prefer a deep analysis at the expense, some will say, of a certain speed, but I consider that the debate was important and necessary.

That being said, I find it useful to emphasize the exact scope of the project we are discussing today. It is in no way, as some have wanted to believe, to see the principle of equalitarian alternate accommodation impose itself as an absolute principle! Indeed, in this regard, the role of the legislator is not to judge good or evil, to impose a model rather than another, but to accompany the social evolution that we know by ⁇ ining a balance between the interests of each and above all by protecting the weakest part, namely the child.

However, no one can deny that, in the vast majority of cases, it is essential for the child to have a regular relationship with both parents. I think this is the red thread of the reform that is being proposed to us today.

In this context, it is important, on the one hand and above all, to take into account the agreement of the parents when it is obviously not contrary to the best interests of the child. On the other hand, in the absence of agreement and in the event of a dispute, to make alternate and equal accommodation, a reference principle for the judge. The obligation for the judge to specifically and explicitly justify its decision will result in greater legal certainty and better consideration of the best interests of the child in each particular case.

This detailed motivation will also lead, we hope, to a better understanding in the head of the parents who should thus be led to better respect the decision.

In addition, it is commonly accepted that judicial proceedings are harmful to the child because they exacerbate tensions between parents. The more blurred the norm, the greater the powers of the judge. Therefore, the circumstances of the intervention of the judge should be clarified.

Another important novelty of this project is the permanent appeal mechanism of the youth judge, a mechanism already applied in the case of referred persons. This will allow for a certain continuity of decisions and will undoubtedly establish a relationship of trust between the parties. Furthermore, the proposed mechanism offers the great utility of not requiring parents to reintroduce a new procedure in the event of a change in circumstances.

The project also addresses the difficult problem of non-compliance with the right of access, a problem that currently constitutes a phenomenon of a disturbing scale and which leads to real suffering for both the child and the parent who is the victim.

The mechanism of forced execution, ultimate remedy hopefully, is considered in the interest of the most humane intervention possible. The text under consideration proposes effective alternatives, while recalling that there is nothing like dialogue to resolve conflicts.

In this context, we are ⁇ pleased with the obligation to systematically inform the parties of the possible use of mediation. by

In conclusion, Mr. Speaker, by adopting this project, we participate in the peaceful work of justice. This project is fully in line with the current development of family law, which consists of accompanying and structuring the parties, especially when a weak part is at stake, and this by guiding individual choices.

I know that mr. Wathelet is registered but I will first give the floor to a Dutch-speaking member. Mijnheer Verherstraeten, zult u bondig zijn?

( ... ...

Yes, that’s a response that my humanitarian teachers have taught me too. You have the word, Mr. Stirling.

Mr. Speaker, Mrs. Minister, colleagues, I think we all agree that there are many shortcomings with regard to the right of parents to contact with their children. Too many judgments and judgments are not respected and too many parents, often fathers, are not given the opportunity to be involved in the educational process of their children, just as there are parents who do not take the opportunities offered to be involved in the educational process.

I think we also agree on the principles: both parents should be maximally involved in the upbringing of the child and both parents should have maximum right to contact with their children. The design, in my opinion, also has the merit that it tries to break the old practice of one day a weekend or a weekend every fourteen days and half of the holidays for a part. In many situations, this may not be the ideal model.

In our view, the design offers an answer to the problems, the question is only whether it is the answer. We doubt that. On the one hand, we believe that here the chariot for the horse is strained. In fact, we would rather have seen that one is looking for the cause, rather than remediating and couriering am Symptom. Indeed, the many problems related to the right of contact are due to the disputes between married persons and between unmarried persons.

Therefore, it might have been better to start the discussion immediately with a genuine innocent divorce and also to move forward with the draft that assigns each child a lawyer before getting rid of a draft relating to residential co-parenthood, or any co-parenthood.

I think the draft is based on a legitimate concern for the equality of both parents. This is a golden principle, but should not be the starting point.

The starting point should be and remain: the interest of the child, with the child’s opinion coming first. If we read the numerous annual reports of the Commissioners for the Rights of the Child, one of the most common complaints they receive from children is that they suffer not so much from the separation of their parents but above all from the way that separation takes place and the way they are too little involved in the fate that is assigned to them. Children want to put more of their words in it.

The residence co-parenthood is not a model — I am honest in that — that is imposed and enforced, but pushing it forward as the ideal model, there we ask ourselves whether that is opportunistic, first of all because there is no scientific research that shows that the bilocation is the best arrangement for children. It is our belief that every situation, every family situation, every child situation, is unique and that every unique situation also deserves an individual approach. It is not the role of the government to propose an ideal model in private situations.

Instead, we advocate that if there is no agreement between the parents the judge should justify that in a special way. But in order to motivate it in a particular way, it would be better to give objective criteria to the magistrates responsible for such files. The first objective criterion is, of course, the child’s own desire. In addition, there are other criteria: the age, the relationship of the child with each of the parents, the distance from the place of residence, the availability of the parents, the material ability to accommodate children, and also, indeed, the loyalty of the parents to each other.

Which judge would do it best? We would have preferred to see a family judge there, of course, well framed. In any case, judges in charge of this type of files should be given the opportunity to receive an annual training, not a legal training because they have mastered that field but above all they should be able to get a bit of guidance on the psychological and pedagogical aspects of that type of files.

I am afraid that this project will increase conflict in the long run.

Parents who oppose a residence co-parenthood should indicate contraindications, in other words, must indicate negative elements of the counterparty. In the past, on the other hand, a parent who wanted more than the usual right to visit one day or a weekend per week or every fourteen days had to draw positive elements about himself. The negative elements of the opposing party must now be applied. I am afraid that this can increase conflict in debates.

We are pleased that our amendment has been adopted to provide the parties with information about mediation, without obligation. The majority amendment provides for this if a judgment or judgment is not respected. Until then, our views are aligned. However, during the proceedings it is provided only during the proceedings before the Youth Court. However, there are also conflicts on this subject for the peace judge under Article 221 of the Civil Code, for the court of first instance in the context of a divorce, for the president of the court in short-term proceedings in the context of a divorce and in the degree of appeal to these courts. Therefore, the amendment of the government does not cover everything and should have been wider.

The reactions and possible sanctions when there is unwillingness — whether or not between quotations — from one of the parents to change the residence arrangement may — I fear — involve the risk of making the dossier even worse. I wonder if this will be the best solution for the child. For the enforcement measures of the executor, I would like to refer to the case-law of the Court of Cassation, in particular the judgment of 7 March 1975 and the judgment of 17 December 1998, in which a prohibition of enforcement was issued by judgment. “The prohibition of coercion against the person or of entering the realm of the personality constitutes a general principle of law from which prohibition implies that any physical coercion against a person, including in order to force him to commit an act or to submit himself to a physical or spiritual examination, is prohibited.”

In the other judgment you test the general legal principle of the prohibition of exercising coercion on someone and of understanding his personality. This means that, except in the cases specified by law, any physical coercion against a person is prohibited. In this regard, I also refer, by the way, to the circular letter of 1996 of the National Chamber of Judicial Officers, which does not allow children to take manu militari.

As for the penalty amount, in itself I am not opposed to include this in the draft. However, let us also keep in mind the limits of the efficiency of this article, if we see that also maintenance is fully seizable and that yet 18 to 20% of the maintenance is not paid.

Are these sanctions the ideal means and are the children benefiting from them? There are good things in the design regarding continuous attachment. I would also have preferred to see that there would be a faster referral to visiting spaces to counter parental alienation.

However, the Achilles tail of this design is the problem that already arises today. If one parent de facto denies the other parent the right to see their children and to be involved in the educational process, that is a major crime that must be prosecuted. At the moment, the persecution rate is barely 1%. Here is the big problem, and this design does not provide an answer.

I am therefore afraid that this design, no matter how well intended, has only a limited yield. We would have preferred to give a unique response to a unique situation rather than a model – which can be a good model, but that doesn’t have to be in all cases – if this is pushing forward. For this reason, we will abstain.

As I promised, I stayed within a quarter of an hour.

Wonderful, sir of the wardrobe. In ten minutes, everything you wanted to say was said.

The alternative accommodation appears to be the solution that, on a symbolic level, is best in accordance with the principle of the joint exercise of parental authority. In fact, it allows the establishment of a real parental co-responsibility, which everyone should seek. It also allows the child to maintain or develop continuous relationships with each of the parents, an objective that everyone must obviously support. It can thus present itself as a favorable solution to the psychological development of the child, who will thus be able to identify with both parents. For all these reasons, this type of accommodation collects our consent.

However, the project presented to us today goes a long way in this matter, since it presents equal accommodation, i.e. accommodation by periods of strictly identical duration in both parents, as a legal model. Instead of insisting on alternance as such, he advocates the purely egalitarian character of it. We are much more reluctant to this aspect of the project.

Alternate accommodation should be encouraged. On the other hand, we do not support the idea of presenting equal accommodation as a model that would supplant other accommodation modes that are equally praiseworthy, and ⁇ equally interesting for the child.

By requiring judges to prioritize the possibility of equal accommodation, the legislator interferes in the private sphere of parents by dictating them the right way to educate their children. This risks blaming parents who cannot – for material, financial reasons or even because of their lack of availability – orient themselves towards the establishment of an equal alternate custody, either for identical or different periods in their duration for their children. I also think of parents who are not in favor of such a model. Thus, this measure aims to discredit their personal choices.

According to the project, as soon as equal accommodation is not possible and this for multiple reasons that could be justified, parents are supposed to have opted for an accommodation that the law itself calls "non-equal". In what case would a accommodation whose ratio would not be 50-50, but which - for perfectly respectable reasons - would be of a ratio of 40-60 or 25-75 be "non-equal"? This word has a moral, even ideological connotation, which I regret.

We would, by far, have preferred the expression "altering accommodation by periods of the same or different duration" or "altering accommodation in an interest of equality", of course. Furthermore, the explanation of the reasoning of the bill states in an ambiguous manner that the law must necessarily leave to the courts an important discretion and that the equalitarian model is not binding. However, it is stated that this model should be generalized. How can we doubt this, since the project presents any other solution as “non-equal”? I also wanted to speak about a notion that appeared quite late in the discussion. Indeed, one may wonder whether the solution of an alternate accommodation of the child responds more to the wishes of the parents than to those of the child. Hence my very reserved position with regard to the notion of "parental interest" inserted in the project. While the concept of "the best interest of the child" is legally established at national and international levels, the same is not the case with the concept of "the best interest of the parents". Instead, the judge will have to take into account a set of criteria, among others and above all the best interests of the child. But what adds this notion, unfortunate in my opinion, of the interests of parents? Is alternate or even equal accommodation always oriented, as the law requires, towards the best interests of the child? by

In this regard, it is important to investigate the motivations of the parents. It does not seem to me that a decision can be made based on the interests of the parents without it being made primarily in the interests of the child. Despite its many advantages, preferring equal accommodation over other accommodation modalities would be like denying the variety of situations subject to the judge’s judgment that justifies other forms of accommodation which can therefore not reasonably be qualified as non-equal.

All these reasons have prompted us to propose an alternative system that insists on the part of alternance. It is important that children see both parents and that they can have the best possible contact with them but according to the specificity of the family, the possibilities of each, in terms of time, availability, money or work, all perfectly justifiable reasons and that give body to the best alternation possible in the interest of the child. This is better than imposing one model at the expense of another.

That is why we submitted the amendment that takes back our bill and insists on alternating in an equality concern. It is important to treat both parents equally when it comes to entrusting custody of the child, in the interests of the child. by

Instead of imposing a system, we had opted for the insertion of a series of criteria in the law that must be taken into account by the magistrate when making its decision. This possibility was denied to include the criteria that would have justified the judge’s motivation, which could have served as a red thread, arguing that it was not good to do so. However, criteria were inserted in the other part of the draft law regarding enforcement. by

Regarding this alternate accommodation, I would have preferred to see some criteria taken into account by the magistrate.

On the other hand, we had requested that the motivation that the magistrate would have to give be ⁇ circumstantiated to ensure that the parties understand why the magistrate had chosen this or that accommodation, why he had deviated from the model of equal accommodation at the request of one of the families. In other words, our goal was for the parties to know the reasons for the decision. In order to do so, it was therefore necessary to impose on the magistrate a ⁇ clear justification of his decisions. by

Fortunately, the project abandoned the idea of creating a kind of presumption involving a reversal of the burden of proof when one was not in a situation of equal accommodation. This is a good thing. The project went further by imposing a circumstantiated motivation of all decisions. In our opinion, this is a good thing. We can only regret that this motivation is not guided by the criteria we wanted to insert in the Civil Code.

As for the aspect aimed at making judicial executions more effective, I am quite positive. The bill provides for a permanent appeal to the magistrate. I had also planned this permanent referral as part of the proposal I had submitted and which was at the same time on the agenda. This permanent seizure, with the possibility for the magistrate to enforce the judgment in matters of maintenance obligations and in matters of accommodation by applying mandatory penalties with the privileged status of Article 1412 of the Judicial Code and by modifying the accommodation in an authoritarian manner, is an excellent way.

Furthermore, as regards the second part and forced executions at the level of children, I regret that it is not envisaged that the executor will be accompanied in all cases by persons who have received specific training in this area. In my proposal, I had anticipated that it would be systematic. In the project under discussion, this is only one possibility. This is a progress even though I would have preferred it to be systematic. Nevertheless, we recognize the delicate and difficult task of the officers who must forcefully execute this type of decision.

Such were my elements and my reservations regarding the introduction in our right of a model to be followed, that of equality. For our part, we would have preferred alternation, in the interest of equality of course, but also according to criteria, specificities of all families. This is why we will abstain from voting.

President: Jean-Marc Delizée, First Vice-President Voorzitter: Jean-Marc Delizée, eerste ondervoorzitter

Mr. Speaker, Mrs. Minister, dear colleagues, I am very pleased that the debate we conducted on the question of the organization of the accommodation of children whose parents are separated has resulted in the text that is proposed to you today. The discussion was long but rich in discussions. Some defended a very interventionist view of the legislator, believing that the law should outperform mentalities and give a strong signal to impose a model in these matters. Others, of whom I am part, have pledged for the diversity of families and current couples to be respected. by

Indeed, the subject matter concerned, ⁇ delicate and sensitive, namely the relationship of a child with both parents, requires us to act with caution in this area. The principles of international law of respect for family life and the right of the child to be raised as far as possible by both parents are at stake in this context. We must therefore refrain, as legislators, from making any value judgment but rather write our action into the improvement and guarantee of compliance with these principles. Any organization of life is respectable in itself insofar as it takes into account the superior interest of the child and of both parents to see the relations between them organized in a harmonious and balanced manner. The important thing is the reconciliation of the needs and rights of the child with the difficulties of separation and the experience of the separated couple.

Imposing a model is a form of state interference in the private sphere to dictate the optimal behavior to be adopted. Through this position of dictatorship, the legislator not only gives a value judgment on the personal life choices of our fellow citizens and, therefore, a criticism of the multiplicity of options adopted by the families or imposed on them according to the circumstances, but also gives a childish signal to parents, disrespecting them from the search for the best solution for common children. It is also, in my opinion, to deny the speciality of each case of the case because helping each family to determine the mode of accommodation by which it will best manage the situation of separation is to respect the freedom of these families but also the diversity of all families. This is not about making the trial of the principle of equal custody, quite the opposite. If all the affective and material conditions are met, this type of accommodation is, in many cases, a success and allows both parents to fully invest themselves.

But in order for this alternative to be a success, several parameters must be evaluated, among which one can cite the age of the child, the availability of both parents, the distance between the parents' homes, their material situation and many more. This realism ended up permeating the committee that adopted a text taking these aspects into account, which I welcome.

Indeed, if imposing a reference model has the disadvantages I just mentioned, the legislator can instead encourage behaviors that he considers desirable. This is what the bill intends to ⁇ .

Without revolutionizing the matter that has been widely constructed over the years thanks to the proliferation of the jurisprudence of courts and courts, in case-by-case, the project establishes a more indicative framework for the judge. The magistrate who is faced with a request for shared custody — I prefer this term more human and less demanding — will be obliged to examine it and to justify his decision, whatever it is, in view of that request.

It can therefore be hoped that this legislation will change the mindset in favour of a greater investment of each parent in the education of the child and ensure a greater unity of jurisprudence.

It is a sign essentially addressed to a small number of magistrates — I dare hope — who are still reluctant to take into account the evolution of society in their decisions and do not give the request for shared accommodation all the attention it deserves.

This signal will also raise awareness, if necessary, of parents about the possibility of opting for such an organization, provided that it is thought out.

Furthermore, our debates also revealed the importance of mediation in such sensitive subjects, where personal feelings and resentments float behind every legal issue. In fact, it is not only a matter of deciding who will live with whom and for what period, but these decisions touch the story of the end of a relationship between two parents with its rational and irrational sides, the resentments of common life and the immediate practical aspects. All this forms a whole and a balance in which the debate on accommodation is included and where promoting mediation is a priority.

However, as I have already had the opportunity to say in a committee, mediation can only succeed if it is carried out on a voluntary basis and benefits from the good will of each. Therefore, we have included in this text, not an obligation to resort to this alternative way of settling disputes, but an obligation for the judge to inform the parties about this possibility in the delicate moments of the proceedings, as well as to prioritize any conciliation when the judge finds that it has chances of succeeding.

However, in addition to these questions of principle, it should be recalled that, without extensive means allowing the judge to make decisions in the most informed manner, these reforms will remain a dead letter.

It is not normal, for example, that the average time for a social study ordered by the court to be filed is of the order of ten months. How will the judge then be able to assess the disputes raised by one of the parents regarding the establishment of alternate accommodation, on the grounds, for example, of violent behavior, of a manifest disinterest for the child, as well as other equally fierce questions? Finally, I would like to thank the Minister and my colleagues in Parliament for the many constructive discussions and debates that this exciting issue raised in the committee.

I think that in this case, we can be satisfied with the working method followed in this matter, broad-spectrum hearings allowing us to base our convictions on a concrete basis, as well as constructive proposals, both from the cabinet of Mrs. Minister of Justice and my colleagues, to advance the debate. These discussions may have been somewhat lengthy, but they have allowed the saying "Chi va piano va sano" to take all its meaning here. by

Our group will therefore vote in favour of this project, but will remain attentive to ensure that beyond the principles, the interests of parents and children can truly be met by allowing the judge to identify them in the most efficient way possible.

Mr. Speaker, Mrs. Minister, colleagues, I can begin by stressing that the VLD in any case is in favour of the principle of equally distributed residence because it is important that the child keeps as much contact as possible with each of the parents. This is defined in Article 9 of the Convention on the Rights of the Child.

At this point, the judge already has the possibility, if the parents have not reached an agreement themselves, to apply this model. In practice, however, we can find that the mentality change, which was intended by the 1995 Act establishing joint parental responsibility, only dropsly penetrates the judiciary. Moreover, there are still a number of judges who in principle refuse a equally distributed residence because a child belongs to his mother. For this reason, it is important to incorporate the concept into the law. Judges will now have to take priority into consideration and make a decision on it.

The amended text, which came up after a lot of discussions — as the previous speaker emphasized, these were very interesting and constructive discussions — puts the judge in any case in the duty to specifically justify his decision. The explanatory note refers to a number of criteria on which that court can rely in order to refuse the decision or not, in particular the distance from the place of residence of both parents, the age of the child and the like. It is important that the judge, both in the case of allowing equally distributed housing and in the case of not allowing it, must justify, taking into account each individual case.

The amendment I referred to clarifies the purpose of the draft law. The judge examines the equally distributed residence as a priority, but will still be able to make the most appropriate decision on a case-by-case basis for the child and the parents, in the best interests of the child. Equally distributed housing is desired where possible but the other arrangements are not in principle and priority bad. We are grateful to the Minister and colleagues, who wanted to start the discussion on this subject, for being able to find themselves in our amendment.

However, the accommodation of the child is not the only point of the design. The draft law also implements the principle of continuous suspension, which is already applicable in short-term litigation proceedings. The VLD already advocated in the bill submitted in July 2004 that this principle should also be applied to proceedings relating to the right of contact.

It is obvious that we are pleased that the design takes over this.

Finally, ⁇ not less important than the establishment of the housing scheme is its compliance. More than just the equally distributed housing, many parents are waiting for a legislation that can help them, more than today, to ensure compliance with the relationship regime.

The problem is well known. Many parents prevent the right of contact of their child with the other parent. The child is used as a weapon in the war they are waging with each other. The last known figures speak for themselves. There would be 50,000 complaints and that would be just the tip of the iceberg.

The parent who cannot see the child and appeals to the Justice sees his complaint very often spotted. The chance that he can enforce his right of contact through criminal law is small. The question is, of course, whether this is the best solution. Is it in the best interests of the child that one of the parents is sentenced to imprisonment? In addition, a civil procedure is currently a long path of suffering. If an adjustment of the scheme can already be obtained, which is not always certain, there is often already serious damage to the children. Scientifically, this is called parental alienation syndrome or parental alienation syndrome.

Therefore, in addition to the continuous suspension, which means an acceleration of the procedure and also reduces the costs, the bill provides for a number of measures that the court can impose in case of non-compliance with the right of contact. For example, a penalty may be imposed to ensure compliance with the right of contact. This will be given the status of super privilege, as is already the case for the maintenance allowance.

Currently, there is also the problem that no more forced recalls are carried out. Judicial officers refuse this. I can honestly understand why they refuse this. While forced enforcement, like imprisonment, is not the most appropriate measure, in certain very extreme cases it should still be possible to use it as the ultimate remedy to impose the enforcement of a judicial decision. If one parent truly continues to refuse to communicate the child to the other parent for a long time and with a hard neck, one comes to the point of being forced to execute. In fact, a rule of law requires that outlined legal decisions be complied with.

It is positive that the bill chooses this possibility and creates a legal framework for it, so that the execution can take place in the best possible circumstances, framed with psychological guidance and the like.

However, before one seeks to resort to these measures, it must be sought to ensure the observance of the right of access by other means. For this reason, the Justice Committee considered it necessary not to limit the draft law to the coercive measures and the fine. It is important in the first instance to try to reach a mediation or reconciliation without being a means of unnecessarily prolonging the procedure.

The VLD proposed in its bill to include in the legislation also the possibility of reversing the arrangement of contact or housing, always taking into account the best interests of the child. After all, the prospect for a parent to possibly see the child less or spend less time with it is, in our opinion, an effective stick behind the door. The threat of seeing the scheme changed will hopefully encourage parents to comply with the existing scheme, the imposed scheme. We are therefore satisfied that the bill was amended and now provides that the court can make a new decision regarding parental responsibility or the child’s housing. Their

Mr. Speaker, Mrs. Minister, colleagues, neither the legislator nor a judge is able to provide the solution if parents are willing to use their children, which should be the most important thing in their lives, in their private war. Their

However, this law should provide the court with more tools to make it clear that children should not be used. In this sense, it is more than a symbolic law. The law also gives important signals to the citizen and to the judiciary. Every child has the right to continue to see both parents, even after a divorce. It is important that no one deprives them of this right without any reason. Their

Colleagues, it is therefore clear that the VLD supports this bill, especially now that Parliament and the Minister have sought to adjust the text so that the text meets some of our fundamental remarks.

Mr. Speaker, I would like to thank my colleagues for the way the work went because it was not obvious — at least for me — to follow the work in the Justice Committee, since it is a committee of which I am not part and that I have other obligations. However, the fact of bringing together the Family Law Committee at noon time allowed to work in small doses over a long period of time, with hearings and exchanges.

I am pleased with the collective work and the text proposed to us here. The issues I would like to discuss are relatively few. Probably the best interest of the child. This may be related to my initial training in psychology, but it always annoys me to hear about the interest of the child and to believe that one can respond to it by defining criteria that are valid for all children and that could serve as simple references.

On the other hand, I am very attentive to how parents manage to respect each other when they separate and how they can preserve their relationships with each other and with their children. These are very structuring and important elements for the development and development of the child. The draft law as proposed allows to take these dimensions into account.

I will prioritize that the first reference is the agreement of the parents; this agreement prevails, unless the judge considers that it is totally inadequate. There is therefore here a valuation and, in my opinion, an incentive to try to agree before appearing before the judge and in order to settle things correctly.

If there is no agreement, then the reference of equal accommodation intervenes. This also seems to me to correspond with the demand for mutual respect between parents and respect for the child’s relationship with both parents. For me, the project as presented here is not a model, but a reference. The judge first examines with the parents the possibility of a fair sharing of the child’s accommodation before imagining other formulas in the absence of agreement.

The absence of a list of criteria in the law is in my opinion a good thing because I believe that they could turn against parents if one felt necessary to follow them to the letter.

However, motivation is important. People need to know why a judge made a decision because it is the result of a disagreement between them. The fact of giving explanations is also part of accompanying in an approach of accountability, all accompanied by an encouragement to mediation.

Basically, I would like the use of mediation to be encouraged even more, but you cannot do the good of people despite them. Therefore, they must be involved in this mediation. The draft that is on the table reinforces this appeal, encourages it; it will probably be necessary to evaluate the concrete effectiveness of these law changes, both on the question of whether the rate of recourse to mediation has increased as a result of these new provisions or whether there is a harmonisation in the decisions of judges and above all a harmonisation in their way of perceiving situations within the meaning of the bill. Indeed, this is the reason for this project. It will also be necessary to assess the importance of the spontaneous agreement.

Given the spontaneous agreements — ⁇ it is my feminist side that appears — it is hard to find that not many of them are concluded, because the wife will obviously take the broadest accommodation in duration and the husband will be less involved because he works, etc. It will also be worth considering the examination of this trend and whether it is appropriate to address the importance of equal accommodation. It will be by evaluating the situations that we will be able to consider the possibility of strengthening, in practice, compliance with the agreement.

This project introduces measures to enforce the agreement or important decisions that have been made, thus highlighting the obligation to respect the right to personal relationship. This seems to me fundamental. The project aims to reduce the trauma that a child can experience in the event of sometimes brutal intervention. Trauma will be present anyway but trying to diminish it is indeed an act that belonged to the policy to make.

There too, I think it will be necessary to carry out an assessment with the police officers, the accompanyers, the injured persons. We will see if this project meets all the aspirations and allows for progress.

But I regret that there is no establishment of a family court, which would enable these various cases to be handled with the required confidentiality and in respect of the overall family dimension. I know that this is in the project and I hope that it will be done as soon as possible. Being able to handle these matters in a very particular context and respecting the complex family dynamics would make it easier to pursue the objectives contained in this project.

Mr. Speaker, Mrs. Deputy Prime Minister, colleagues, allow me to introduce what I said at the beginning of the discussion in the Subcommittee on Family Law, namely that if a society fails to guarantee the right of parents to meet their children, there is not only a social problem, but also a civilizational problem. It was therefore high time that the necessary directives and instruments were made available to the judges in order to remedy manifest injustice. It was, therefore, this first concern, namely, the remedy of striking conditions, which motivated me to participate very constructively in the discussion.

In our view, the draft law meets at least the most important needs. Let that be clear. The insufficient enforcement of the policy on the right of access at the judicial level will ⁇ contribute to this. The consent of the parents must, of course, prevail. This is also stated in the draft law. We will agree with that. It is only if one of the parents so requests, in the absence of an agreement, that the court must charge the equally distributed residence of the child. In this regard, the arrangement is balanced.

It may go a little too far when CD&V states that it is pushed forward as the ideal model. I do not have the impression that this is the case here and one wants to push it forward as the ideal model, as alpha and omega. I think the judge has sufficient capabilities to express his own opinion, his own feelings, his own rational conviction, when it comes to making a decision in cases where parents disagree. But it can be no harm, in my opinion, that the duty of motivation of the judge is somewhat tightened, so that one can come to the desired change of mentality, which in some districts has already been carried out, in others has taken a start, and in other apparently still needs to make a way, before one is enough to meet parents who remain deprived of the right to see their children.

We would have liked to see that, as included, among other things, in the amendment of colleague Verherstraeten, the draft would include a list of modalities and criteria to which a judge must comply and to which he must check the equally distributed housing.

Mediation procedures are also provided, and we would like to take this into account. However, it is regrettable that the Norwegian model — it was even colleague Swennen who just cited it — does not find passage. From the beginning we have been a passionate supporter of this, we have spoken out for it, but unfortunately it has not succeeded. This is a minority of this bill.

We can only welcome the continuous support. It is a stick behind the door in relation to those who witness manifest unwillingness. We indeed welcome sanctions: the fact that the court now has a sufficiently large arsenal to bring unwilling parents to order. Let us make it clear that the coercion on the person of the child must be reduced to an absolute minimum. It is also a bridge too far — in it I understand the CD&V just a little less, although I am willing to support all the amendments of the CD&V — to make the appeal to criminal law the royal contribution of this bill. In many cases, this would be a too serious infringement of the private life of parents and children.

As I have already said, on the one hand, steps have been taken in the right direction, but on the other hand, I regret that mediation is not fully covered as we have seen it and that the modalities that the judge must examine are not entirely listed.

As regards the procedure, colleague Verherstraeten correctly pointed out the exclusive competence of the youth courts, which, however, is not the exclusive competence in the field. In the long run, there may also be a problem. Their

Finally, in fact, we would also like to see that, from the moment a problem arises in the implementation of certain measures — whether there was an agreement or not —, an immediate consultation would be made with a service responsible for the guidance of the parents and for ensuring the personal contact.

I think that if we had met those aspirations of the opposition, this bill could have counted on somewhat more support. Again, it’s a step in the right direction, but for us it doesn’t always go far enough. We will also abstain from voting on this bill.

I think it’s time to hear your reactions after these various interventions.

Mr. Speaker, the number of speakers and the content of what they expressed at the tribune demonstrate that we had an extremely interesting debate in the committee. I would like to say that the bill that has been submitted, as well as a whole series of proposals, has a history. Indeed, remember, when we worked in the framework of the families, we had a great dialogue with all the living forces involved in the subject during the general states of the Family. A large majority of the speakers then pledged to have a legislative model that imposes itself on the judge in the absence of other elements; I will return to it.

Before I say why I am happy with the outcome of this project, I would like to react to an intervention that the judge should not, or as little as possible, intervene in the order of the families. I disagree entirely with this finding, which has often been made earlier to prevent the judicial authorities from integrating into families when, behind the door of the houses, there was violence, especially conjugal.

This project also concerns the possibilities of violence, other types of violence, especially against children, which can be considered as an obstacle to their own development, as a pain, as a violence the fact of not being able to access both parents who raised them.

The judge can and should intervene. But of course, as it has been said, one family is not the other, one situation is not the other. Therefore, one cannot impose a model, but one can work on a reference. This is what this bill is intending to ⁇ .

Things have changed on the ground. We are very far away today from the system where mom had the custody of the children with one weekend in two for dad. In more than three-quarters of cases, divorces are made by mutual consent. This shows a real evolution of society. Divorce no longer automatically leads to definitive breaks as before, but rather to breaks with a continued dialogue, where one agrees on everything concerning the consequences of separation, especially on the child or children.

For couples who cannot lead to this mutual consent, which is of course the best of the formulas, I think that our duty is – I must use those terms, Mrs. Gerkens – to take care of the best interests of the child. However, the interests of the child are not the same in all situations.

There are no absolute criteria. But we know in any case that, almost always, separations of parents are experienced by children as extremely painful. A sense of guilt is born in them, which is all the more difficult to manage as their environment sometimes switches very quickly with provisional measures. Thus, it happens that one of the parents will be described by the other as being completely unable to have contacts with the child and raise him. The child then asks, "But who was this monster that I believed to be a quality and affectionate parent?"

Thus, that child will live painfully and will very often be the subject of emotional blackmail. It can be understood that separation can provoke such behaviors, but the consequences for the future of the child are extremely harmful.

So we make the difference between the opposing breakup of adults and the life that should continue normally for the child. In accordance with the United Nations conventions and, above all, common sense, this child needs both parents to continue to evolve.

We are also trying to overcome arbitrariness. Lawyers know it: depending on whether you go before that or that judge, his designs will make you more or less likely to see the child more or less often. In our opinion, this is completely abnormal. This is why our project is revolutionary in the sense that it takes an additional step towards equality and protection of the child from the discomfort caused by a difficult divorce. Furthermore, it helps the magistrate, who finds himself alone in the face of such a situation, to find a leading thread for the dialogue he must lead with both parents.

Like the mr. Swennen said, the Family Law Subcommittee has worked well since the beginning of the legislature. This is another big project that comes to a deadline. We will soon also have the divorce without fault, which was presented in subcommittee. Progressively, we are making significant changes in family law. I think it was time.