Proposition 55K0780

Projet de loi modifiant l'ancien Code civil en ce qui concerne les liens personnels entre frères et soeurs.

General information ¶

Authors

DéFI François De Smet, Sophie Rohonyi

Submission date

Nov. 21, 2019

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

descendant civil law family law

Voting ¶

Voted to adopt

Groen CD&V Vooruit Ecolo LE PS | SP DéFI Open Vld N-VA LDD MR PVDA | PTB

Abstained from voting

VB

Contact form ¶

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Discussion ¶

May 12, 2021 | Plenary session (Chamber of representatives)

Full source

The rapporteur, Ms Katja Gabriëls, refers to her written report.

We have thoroughly discussed this bill in our committee. It has also gone a long way in the committee: there were two lectures and during the second reading we still organized hearings and the proposal was still fundamentally amended. As we have repeatedly emphasized, we are also in favor of the principle that is at the base.

The proposal aims to ensure that brothers and sisters have a principled right of contact. Our group supports that brothers and sisters, if possible, should not be separated from each other. It is of course very important that children, especially in precarious circumstances, can maintain and maintain family ties. Children from the same family can be a great emotional support for each other. They have often experienced the same and so know exactly what really plays in a family. Good relationships benefit children of all ages. Our group emphasized that, by the way, already in the Flemish Parliament, even before we began to discuss the bill in the House.

However, it cannot be that the proposal would result in brothers and sisters not being placed because they cannot be placed together. The best interests of the child must always be given priority and therefore it must be absolutely avoided that children should be forced to remain in dangerous or inappropriate situations.

The previous versions of the proposal also covered a number of other issues, such as incompetence for children from 12 years of age and even for children under 12 years of age. We have always emphasized during the first reading and in the treatment of the proposal that we found that a very unthoughtful idea, but that was also shown by the hearing and the many spontaneous opinions we received in response to the proposal. We are therefore pleased that the proposal has been amended on this point and that this part has been removed. The debate on this can always be held later and globally, even if we are not in its own favor.

There are a number of other points that I would like to clarify and I would also like to ask two questions to the chief service officer of the proposal.

First, Article 2 states that the court seeks the same arrangement for all brothers and sisters. In our view, this does not mean that brothers and sisters must necessarily stay with the same parent on exactly the same days.

It is important that the residence arrangement allows the brothers and sisters to maintain contact with each other. However, it may be the case that there are differences in the arrangements, this of course adjusted to the concrete situation and to the desirability.

Second, Article 3 states that all brothers and sisters at any age have the right to maintain personal contact with each other. I would have liked that Mrs. Rohonyi, or one of the other applicants, further clarified that this is about adult brothers and sisters with minor brothers and sisters and about minor children among themselves, but, of course, not about adult brothers and sisters among themselves. I have already discussed this issue in the committee. The text speaks about "at any age" and that dares to suspect otherwise. Indeed, the definition of the new Article 387 sexies-decies does not apply to that Article, as it applies only to the new Chapter 3.

In fact, it does not seem to me that this proposal is also intended to regulate the relationship between adults. These are rights derived from, among other things, the Convention on the Rights of the Child. Mrs. Rohonyi, maybe you can confirm that again.

Finally, Article 387 septies-decies refers to parents, guardians, the court and the competent authority, who seek to maintain personal contacts between the child and each of his brothers and sisters. The guardian should also be understood here. However, that term is not included in the text, unless it appears to be implicit. Per ⁇ you can also clarify this.

It is important for us that these questions are clarified, but in terms of content we will support this proposal, of course, after all those adjustments.

We welcome this bill positively. First of all, I wanted to thank my colleague Rohonyi and my colleague De Smet for the pugnacity and openness they showed in this case, as well as for the perfect collaboration that has taken place between the various groups in commission for its completion.

This matter is important because, until now, the right to family privacy had more a vertical dimension – parents-children, grandparents-children – than a horizontal dimension, namely a recognition of fraternity. This is not new, it is a topic on the table for more than 20 years in Belgium, to such an extent that our French neighbors legislated in the matter in 1996. In the past few weeks, a lot of 1996 laws have been spoken in this court; it is not the same.

In any case, we are late in this debate. Numerous studies have demonstrated that relationships between brothers and sisters, those of brotherhood, are necessary and constitute a solid foundation for building as a child and facing the adversity of life. They offer each other support, great affective security and psychological support. On the contrary, separations – and this is not anecdotic, statistics indicate that more than 35% of family environments are either monoparental families or recomposed families – can be experienced as a real trauma.

This text therefore offers two essential and not negligible advantages. First, the principle according to which children who are part of a brotherhood, when they are minors, have the right not to be separated. As mentioned in the text, this right will be exercised subject to the interests of each of the children, interest that would command a different solution. Secondly, if they should nevertheless be separated, a right to maintain personal relations between them. This right is now automatic and is intended to concrete the necessary affective relationship that must exist and preside over every fraternity.

Concretely, it will be about avoiding double punishment in the face of the difficulties of life that children suffer: divorces, disappearances of children, placement of children, family recompositions. The authorities will therefore have a positive obligation, provided that it is not contrary to the best interests of these children. Even when a child is placed in an institution, for example, he retains a right to maintain a relationship with his brothers and sisters. It must also be acknowledged that in a text there is a practice that many magistrates and family judges in particular are already trying to apply.

This bill holds another force, because it responds to family developments. It is not only the “legal” and “biological” bond that is consecrated, but also – in the case of recomposed families and that of other family environments – the affective bond. In 2021, it should also be taken into account. This concept of brother and sister will now be widely heard. As I said, it is not conditioned by a biological bond or an administrative formality, but extended to education in a common household.

Finally, and this is not the least aspect of this text, since a right is nothing if it cannot be protected, it can be protected by a magistrate. Indeed, we will offer children aged twelve years and older the ability to be and to make recognized their right not to be separated or that to preserve their personal relationship with other members of their brotherhood.

In short, this text constitutes an essential evolution. And I would like to thank colleague Rohonyi for the work done.

This legislative proposal, about the brothers and sisters, is very important. Of course, the Flemish Interest supports the principle.

However, the proposal now for approval, namely the legal anchoring of brotherhood in the Civil Code, will not provide a solution. Both factual and legal, the proposal is not feasible. In practice, this proposal will not bring sows to the dive.

First and foremost, the question arises to what extent Belgium needs a federal law that prohibits the separation of brothers and sisters in principle. The bill does not provide an answer to this question. According to Article 22bis of the Constitution, every Belgian authority is obliged to take the best interests of the child as the first consideration in any decision concerning the child. The Decree of 18 January 2018 establishing the Code of Prevention, Youth Assistance and Youth Protection, which stipulates that all institutions must ensure that brothers and sisters are not separated. The introduction of § 3 in article 374 of the old Civil Code is therefore nothing more than the confirmation of an existing belief and practice and is in fact superfluous.

Next, Article 375bis of the old Civil Code already includes the right to maintain personal contact with the child by those who have a ⁇ affective bond with the child. This, of course, also includes brothers and sisters. The addition of the mention "brothers and sisters have the right to personal contact with each other" is useful only for those brothers and sisters who have no affective bond with each other. The description of “particularly affective bond” is clear and requires no clarification.

In the introduction of the Civil Code in 1804, lawmakers showed mastery by limiting themselves to concise, general provisions. An additional category would be added. The legislator may not be walking the way in the right direction. This is evident already from the difficulties of giving a clear definition of brothers and sisters, for which new terminology is used which will cause major problems of interpretation.

Do purely biological brothers and half brothers and sisters really fall under the definition? What about children with the same donor? The question also arises how a family judge can keep plus brothers and plus sisters together when he is not competent and has no material legal basis to impose a residence arrangement of a plus child with a plus parent.

I will come to the practical implementation of the proposal. There is an overwhelming practice of problems with out-of-home placement and youth protection. Few nursing families can handle the placement of multiple brothers and sisters. This problem is not addressed and moved to the states. The applicant of the proposal formulates it as follows:

“Communities must ensure that there are enough places for these children.”

Everyone knows that the budgets for this are non-existent. The waiting lists in care have been drawing up for years now. An anchoring of a principle in the Civil Code will not change this. Furthermore, the State Council has already ruled in the parental care file that the federal government exceeds its powers if a condition would be linked to the measure or aid form of family placement. The competence to impose such a condition is bound by the competence of the Communities to impose or organize the measure or form of assistance itself. Therefore, the question arises why no conflict of interest has yet been raised. The legislature also risks an appeal for annulment before the Constitutional Court on the grounds of violation of the division of powers.

In the initial bill, brothers and sisters were given the opportunity to act in court. That was a refreshing thought, which, though, hanged with heels and eyes, but for the Flemish Belang group that was the reason not to remember us on the first text that was voted. Now there remains only a purely theoretical anchorage in the Civil Code that cannot be enforced by any of the parties in court. However, the proponent of the bill was clearly in the committee. The right to act in court lies at her heart. The legislative proposal, which she has jointly submitted, therefore aims to guarantee that right with regard to the two main rights arising from that brotherhood.

The representative of the Minister of Justice confirmed in the Committee on Justice that the renewal of the right of minors under the age of twelve is not substantial, in particular given the existing Article 1004/1. “The ratification of the new law will, according to some, bring with it practical problems. The speaker can understand those arguments, but it is not about insurmountable difficulties, as the State Council has also pointed out. It will take an effort, but it’s worth it, because it’s about children who have no one else besides their brothers and sisters. It is essential that this brotherhood and sisterhood be liberated. There will therefore be an effort to be made, but it is worth anchoring that right.”In the hearings there were shocking testimony from adult persons who were not involved in this procedure as a child. There was no explanation during the committee on the relationship between the existing right of hearing for the children and the initially envisaged procedural competence in this bill.

With the submitted amendments, this hot hanging iron was not only pushed over, it itself was completely put into the doofpot.

Today here is an empty box with a very beautiful red strap on the table. That is a pity because this could have become a progressive law. For this reason, our group will abstain in the vote.

I will be brief. Since it was my colleagues who followed the discussions in the committee, I wanted to thank the authors of this proposal, which seems to me obvious, even though it took time to get there. I would like to say that my group will of course support it.

I would like to congratulate Ms. Rohonyi on this initiative and on the fact that she has had the patience to tolerate and even support the repeated amendment proposals.

It is also important to thank the experts. At the first lecture, we received the exhortation from the academic world that we may have gone a step too far by giving children proceeding skills. We then had the wisdom to hold hearings. These have led to the present text, which I would not call a compromise but a good law, which is an essential principle as important as the right of brothers and sisters not to be separated.

One must understand well what it is about. It is a right that is established in the best interests of the child, but that right cannot be claimed by the child himself. It is the environment of the child, and the court in the last instance, that must ensure that this right is guaranteed.

It is also not an absolute right. It is not possible in all circumstances to ensure that brothers and sisters who are minors are not separated. It may be necessary, in the best interests of the child, in the best interests of the family, for example in the case of a divorce or a settlement, that brother and sister be separated, however unfortunate that may be, but often the child will be able to agree to it himself in such circumstances.

If the best interests of the child cannot be realized by not separating brother and sister, it should at least be realized by giving brother and sister the right to maintain personal contact, even if the parents or places in a foster family are geographically far apart.

I also think that we have done well to broadly define the notion of brother and sister for the purposes of this right, which concerns both the family, the institution, the foster family and the guardianship, as children raised in the same family. This is a reference to Article 222 of the Civil Code on education in the same family. It may well be that one has no blood bond, but that one has the privilege to grow up in the same family.

I emphasize again that when one grows up in the same institution, that cannot lead to a qualification as brother and sister, because an institution is not a family and therefore in an institution there can be no bond as brother and sister. However, children who are brothers and sisters in the broad sense of the word have the right, when they are placed, to stay in the same institution to the extent of the least possible.

Colleague Rohonyi, I think this is a progress for the children and a progress for the families. To the maximum extent possible, we have allowed the best interests of the child to triumph.

It is too early to give children a procedural competence. That is obvious. What is not, however, can still come. There are many bridges to be built between today and tomorrow.

I am deeply delighted by the prospect of adoption of this bill. To tell you all, I myself had been confronted with this as Minister of Youth Aid in the French Community. On several occasions, I have witnessed very difficult situations where, obviously, it was in the interest of the children of the same brotherhood to remain together, but where this possibility was extremely limited. Everyone was mobilizing. As such, the actors of youth aid should be greeted: the social services, the administration of youth aid and even the cabinet. Everyone was on the bridge, and the good will was not lacking. Heaven and earth had to be moved so that the interests of these children to stay and grow together were respected. This was not always possible, but we must welcome the efforts made on the ground to ⁇ this.

I was marked by this experience. Together with Laurette Onkelinx and the Delegate for the Rights of the Child, I had therefore organized a conference on the subject in the House in November 2018, which was entitled: "How to ensure the maintenance of the link within the fratries?" You will easily understand how much I am delighted with the outcome of the bill, defended with great talent and tenacity by our colleagues Sophie Rohonyi and François de Smet.

This achievement is the result of a long-term work aimed at creating rights. Now, if we want them to be respected and effective, so that all fraternities can benefit from them, it will be necessary for the Communities to develop much more the structures necessary for the exercise of the rights that we recognize through this proposal.

The work that has been done by the Justice Committee, where I am not sitting – it is my colleague Vanessa Matz who participates – seems to me to be a quality work. Auditions were conducted. This has been taken into account. A circumstantiated opinion was given by the Council of State. This was also taken into account. Amendments were submitted and adopted, which in addition allowed to create a broad consensus within the committee and, I hope, today, of our homicide.

Recognition and protection of the bonds that unite brothers and sisters is, in our view, an essential step forward. The right to the preservation of such links, except when they are contrary to the best interests of the child, is fundamental.

Taking into account links from new forms of family cells is also an important element, as is the preferential appointment of the same guardian for all brothers and sisters.

The withdrawal of the right of legal action of children under the age of 12 from the proposal is a wise decision. Not because we are opposed to it. Not at all! But because this deserves more reflection, given the lack of unanimity among the experts on this question, it is true, in a broader context than this proposal. But the reflection, very clearly, also deserves to be continued.

It remains now, I said, to establish the necessary infrastructures so that the right recognized to brothers and sisters is effective, concrete, and this in good conditions, both in the situations of placement and in those of separations and divorces coming before the family courts. The role of peacekeepers in matters of guardianship will of course be equally important.

For a large part, it is true, once this law is passed, it is no longer up to us to play at the federal level, but essentially to the Communities. What they will do or not do will depend on the concrete scope of our work. That is why I call on the Minister of Justice to mobilize the Communities to do what is necessary. I also urge each of our colleagues to send the message to their colleagues in federal entities in order to put all the necessary pressure on their respective governments, so that this law is fully effective and that never again a child is deprived of the right to live with their brothers and sisters when their interests do not contradict it.

You have obviously understood this: the CDH group will gladly support this proposal from our colleagues in DéFI. I thank you.

Mrs. Speaker, my colleagues, I confess that I find it hard to hide my emotion today because when I asked for the priority consideration of this bill in the Justice Committee, I was very far from imagining how long and difficult the road to go would eventually be. I am especially moved because I think of all those children who were waiting for this legislative change, all those children who became adults who, during their childhood or adolescence, were separated from their brothers or sisters on the occasion of a placement in an institution or a foster family.

Today, for example, I think of Roberto, who recently wrote to his brother: “I was ten when we were separated. You had nine. This didn’t go well at home and the youth court decided to place us. Since there was no room to welcome us, we were separated. I felt alone and powerless. I’ve heard that you’re aggressive sometimes. I’m sure it would have been better if we hadn’t been apart. There are moments of quarrels between brothers and sisters, but when they are no longer with you, you end up losing a part of yourself.”

I also think of Lindsay: “Dad was an alcoholic. My mother was suffering from a mental illness. Slowly, I took the place of my parents to shoulder my two brothers. Then came the death of my dad. I get an apartment through the CPAS but my two brothers are placed at our aunt. I only saw my brothers once a month. That separation was horrible. I lost my father and I lost them too. I needed them and they needed me, not just for sharing laughs, reminders of good times, disconnecting. I reassured them too. I have adopted maternal behavior. Taking on this role gave a real meaning to my life, a source of hope, and there, suddenly, I had no reason to live. That was a torture.”

These children experienced the tragedy of being placed, of being stripped out of their homes because their parents were dead or failed or violent, or because their parents were divorced and had subsequently decided to separate them. It was then that they experienced another drama, that of being separated from their brothers or sisters, from that stable, secure and trusting relationship they needed more than ever.

We can also see that the brotherhood has become, over the last decades, a cell of stabilization. This is a function that the nuclear family no longer necessarily fulfils. Today, the brotherly bond survives the separations of parents, which cannot be overlooked when one in two couples is known to divorce, but also that a couple that separates on two does so before the five years of their last child. It is precisely in order to avoid this drama as much as possible that my group submitted this bill twenty years ago.

Yes, dear colleagues, it has been twenty years since we had removed this legal void in Belgian law, which put aside this horizontal family relationship, contrary to what the law provided for relations between parents and children but also between grandchildren and grandparents. Indeed, today, when a child is in danger, when it is necessary to remove him from his family environment, a separation between brothers and sisters can take place. This separation may be temporary, in order to quickly resolve the problem that prevents the reunion of the fraternity, in particular the material impossibility of placing these brothers and sisters in the same institution or in the same host family because of the too many children to be placed or because of the diversity of ages. But it ⁇ cannot last for years, as is the case today. This causes children trauma that they will carry in them all their lives.

These traumas are experienced by too many children. A survey conducted by SOS Children’s Villages found that 77% of children placed did not grow up with one or more members of their brotherhood. In 2017, a working group launched by psychologist Stephanie Haxhe, whom I would like to especially greet, but also by lawyers, social workers, sociologists and educators, issued a white paper to support our bill, but also to point out the inconsistency. Indeed, the federated entities consecrated the right arising from the fraternal bond, but the federal did not consecrate this same bond.

Therefore, it was more than time for our Justice Committee to look at our updated bill in the light of legal developments, practices and needs of youth assistance. As is known, a State Council opinion and multiple hearings followed. They were accompanied by written opinions, which, by means of a few requests for clarification, almost all highlighted the significant legislative advance that this text constituted. We have taken care to respond to this at several levels.

First, fraternity is now defined in a separate chapter from previous chapters relating to parental authority or family placement, as requested by the State Council in its opinion. This brotherhood is widely defined in the sense of children raised together in the same family and who have developed a particular affective bond. This definition thus encompasses brothers and sisters who have a biological bond, adopted children but also half-brothers and sisters, children from family recompositions, children from lesbian or gay couples, children who grew up together in a host family or under a custody – to answer the question of my N-VA colleague. It is therefore the social brotherhood that will make its entry into our Civil Code by granting rights to biological children but also to all those who have grown up together and developed strong social ties to preserve for their proper development.

Secondly, the rights arising from these fraternal ties will be expressly mentioned in our Civil Code. There is, first of all, the right of brothers and sisters not to be separated unless placed in IPPJ as a result of an offence qualified as a crime. But there is also the right to maintain personal relationships at any age. The exception thus finally becomes the principle, which, however, must be practiced on a case-by-case basis in the best interests of each child taken individually.

The goal here is really to prevent some members of the brotherhood from being imposed a retention with another who would, for example, be violent towards them or even to meet the needs of a brother or a sister with specific needs due to his disability, his health status or even his schooling.

As it was said, in the beginning, we wanted to add to these rights the right to claim them personally in court. This was, however, without counting the fierce objection expressed by some field actors heard in the committee, in particular some youth judges, some family law teachers or the association Pleegzorg Vlaanderen. These actors had pointed out the specifics of minors, the risk of instrumentalization by the adults who surround them or the fact that they find themselves actors of conflicts of which they should ultimately be preserved.

For its part, the State Council had pointed out a discrimination that would result between children who could claim their bond of brotherhood and others who could not claim the bond that unites them with their grandparents.

That is why, in order to give this text a chance to pass, we have had to make the choice to abolish this right to be in court, while knowing that every minor retains the right to be heard for any decision that concerns him, as also provided by the International Convention on the Rights of the Child.

However, a reflection on the legal capacity of minors will eventually have to begin by guaranteeing them the assistance of a neutral, independent and specially trained lawyer in the defence of minors, especially when the extremely difficult social situations faced by these minors have made them ⁇ mature and responsible. At the end of the day, we need to trust the child’s word.

For the rest, I am ⁇ happy that brothers and sisters will in principle no longer be deprived of the only points of reference that remain to them, of that bond that builds them to the present, but also and above all for their entire adult life. They will no longer be deprived of this source of affective security and psychological support so important to their age. They will no longer be deprived of a fundamental component of their right to family life, enshrined in the International Convention on the Rights of the Child, but also in the European Convention on Human Rights, or even in our own Constitution.

I would like to warmly thank the Cabinet of the Minister of Justice for their collaboration in the drafting of our amendments, but also the colleagues who understood that the question of the rights and interests of the child goes far beyond the partisan divisions.

I would also like to welcome the work and perseverance of SOS Children’s Villages, but also of the General Delegate for the Rights of the Child, the Kinderrechtencommissaris and other field actors, such as Ms. Stéphanie Haxhe, who has been campaigning for years for the consecration of this bond of fraternity in our Civil Code.

I finally think of all those children who have grown up and have had the courage to testify to their history in recent months, in order to support our text, in the media, in the commission, or even by contacting me directly. They did so to prevent other children from being deprived of this bond so important for their proper development.

Today’s vote is the result of a very long parliamentary work. But it is also and above all the beginning of a work that will have to be done on the ground to force the authorities to actively seek solutions, to support and train the host families to the fraternity and to the possibility of taking care of the brothers and sisters together, but also to increase the capacity of reception.

The Flemish Minister of Youth has understood this since he has already announced that he wants to include the joint care of brothers and sisters as a guiding criterion for the future policy of adoption of children in the framework of youth assistance. Today I call on the Wallonia-Bruxelles Federation to follow this example.

It is to practice to adapt to the law and not vice versa. We must go out of the policy of the means to give ourselves the means of its policy, even more when the best interests of the child are at stake.

I listened to the arguments of the only party that did not hear backing our text. I am quite shocked to hear that he eventually makes this issue, here too, a community issue. I hear that regional legislation is sufficient and that this bond of brotherhood should not be enshrined in our Civil Code. I invite this group to read the opinion of the State Council which is extremely clear on this issue. The Federal Authority shall be competent to adopt the proposed arrangement without appearing to make it impossible or excessively difficult for the Communities to exercise their powers in the field of assistance to youth and protection of youth.

I also wanted to emphasize how fundamental the inscription of this brotherly bond in the Civil Code is. First, because the best interests of the child must prevail over logistical, budgetary or administrative considerations, as the European Court of Human Rights has stressed, and this for any decision concerning children. But also because it is with the help of the youth to create the conditions of this right, right that must for this, and in advance, be inscribed in a law at the federal level.

Dear colleagues, on behalf of the thousands of children and young people who are facing extremely difficult social situations, I wanted to warmly thank you for your support because this law will protect them. This law will force us to see them no longer as mere file numbers but as members of a brotherhood they need to grow and rebuild themselves.