4. Although at present Belgian laws provide for the hearing of children only in exceptional cases (see below), legislative amendments are under consideration with a view to guaranteeing this right to be heard. Judicial practice is also moving in this direction. During the past few years, several courts (notably Ghent Court of Appeal, on 13 April 1992 and 1 February 1993; Liège Juvenile Court, 7 March 1994; Liège Court of Appeal, 24 June 1992; Liège Civil Court, 22 November 1991; Court of Cassation, 11 March 1994) have given effect to article 12 of the Convention. In divorce proceedings, judges have accepted requests that children should be heard on condition that the latter are capable of forming their own views.
5. A recent judgement of the Mons Court of Appeal of 20 April 1993 not only recognized the direct effect in Belgian domestic law of article 12 of the Convention, and hence the existence of a minor's real subjective right to be heard, but also established the possibility for the minor to exercise this right through the procedural means of voluntary intervention in the judicial proceeding concerning him. Judicial decisions are therefore tending to favour the hearing of the child, a trend which is unquestionably echoed by the political authorities. Various bills concerning divorce proceedings are currently under discussion in Parliament. In the context of these discussions, there is a proposal to incorporate the general thrust of article 12 in the Belgian Judicial Code and to establish rules that will apply to all proceedings concerning children and not just divorce proceedings. These provisions would enable the child to address a request to the judge, who could of his own motion decide that a child could be heard, in which case the child could refuse the opportunity.
6. Although the principle of the hearing of the child seems to have been established, the age from which a child may be heard is still the subject of discussion. Belgian law could in fact adopt the concept contained in article 12 of the Convention of a child capable of forming his or her own views, which would give the courts greater room for manoeuvre, or set the age at 12 years.
7. The latter solution would create a parallel with the recent Act of 2 February 1994 amending the Protection of Young Persons Act. The former Act, which should enter into force in September 1994, provides that a juvenile court has an obligation to hear a minor as from the age of 12 years, even if he is not a party to the case, when his interests are directly involved in disputes between persons vested with parental authority over him. Similarly, provision is made for a personal hearing by the juvenile court judge of children aged 12 or over before any provisional measure can be taken concerning them.
8. Article 7.8 of the Child Labour Act of 5 August 1992 has reflected article 12 of the Convention in the following manner: "The competent official shall, in the individual derogation, establish specific additional conditions for the performance of the activities referred to in article 7.2. These specific additional conditions relate, inter alia, to: 2.7: ascertainment whether or not the child consents to perform the activity, the opinion of the child being duly taken into consideration in the light of his age and degree of maturity".
9. Similarly, articles 32 and 36 of the Convention are reflected in article 7.1.2 of that Act: "It is in all circumstances forbidden to cause or allow children to perform an activity which may have an unfavourable effect on their development in educational, intellectual or social terms or endanger their physical or moral integrity, or which may be prejudicial to any aspect of their well-being".
10. The French Community has developed two initiatives directly based on the philosophy underlying the Convention on the Rights of the Child: the publication of a new decree on assistance to young people and the formulation of a young children's charter, intended to define the lines to be followed by a coherent medium and long-term policy on young children.
(a) Decree on assistance to children
11. The Decree of 4 March 1991 relating to assistance to children and young people puts particular stress on the need to keep children in the family environment. The Decree was drafted after a number of academic personnel had given their views and in the context of three-way consultations involving all the milieux concerned (social, judicial and political). The implementation of this Decree should result in assistance-seekers being directed towards the appropriate services and in coordination of the activities undertaken for their benefit, a task entrusted to the counsellor for assistance to young people. Children and young people are implicitly recognized as subjects of law since the Decree guarantees them greater participation and respect for their fundamental rights. The principle of "dejudicialization" constitutes an important step forward: it emphasizes the will of the French Community to ensure that the social problems encountered by young people are dealt with by the social institutions, and not by the judicial authorities.
12. The intervention of the judicial authorities is reduced to cases in which measures of constraint have to be taken in respect of the child, or his family or friends, when the physical or mental integrity of the child is seriously endangered, or when one of the persons vested with parental authority or having custody of the child refuses the assistance of the counsellor or fails to put it into effect. In these precise cases, the judicial authorities remain the best guarantor of respect for the rights of defence.
13. The new system of assistance to young people stresses prevention and the means used to avoid marginalization of young people by emphasizing the importance of young people remaining in their milieu. This prevention takes such diverse forms as social assistance, assistance to families, training, education, health, leisure, sport and culture.
(b) Young Children's Charter
14. The Young Children's Charter is a declaration of intent constituting an intermediate step towards the adoption of a covenant on young children. This Charter, which concerns children up to the age of 12, pays particular attention to children up to the age of 7. It also sets out rights of parents, as well as enunciating the following rights:
15. In the Flemish Community, articles 3-21 of the Decrees relating to special assistance to young people, as coordinated on 4 April 1990, establish regulations concerning voluntary assistance for children with behavioural problems. Behaviour problems occur in a situation where the physical integrity and possibilities of emotional, moral, intellectual or social development of children are jeopardized by exceptional events, relational conflicts or the conditions in which they live.
16. This assistance is in most cases provided in the child's family environment, but if the child's interests so require, he may be placed in an institution. The organization of assistance concerns two administrative bodies, namely, the care of young people committee, which exists in each administrative district, and the mediation commission responsible for special assistance for young people, which exists in each judicial district.
17. Any person - and consequently any minor - may bring behavioural problems to the attention of the care of young people committee. This committee can organize assistance only with the consent of the minor's parents or the persons having custody over him. If the assistance provided affects the minor's personal freedom, he must also give his consent if he has reached the age of 14 or express his views if he is under the age of 14.
18. If, in the absence of the necessary consent, the committee is unable to organize assistance, a request for mediation may be presented to the mediation commission responsible for special assistance to young people by the minor or any trustworthy person who defends his interests de jure or de facto. The mediation commission is responsible for mediation between all the parties concerned, with the aim of organizing voluntary assistance. The minor may be assisted or, if the mediation commission authorizes such a course, be represented by a trustworthy person of his choosing at the hearings of the commission. If the minor himself is not capable of taking such action, the commission may appoint a trustworthy person ex officio.
19. The assistance is provided under an assistance programme and in accordance with an action or support plan which, in consultation with all the parties concerned, notably the minor himself, is prepared at the beginning of the assistance and is evaluated on its completion.
20. The German-language Community does not envisage any specific activity in the context of the Convention on the Rights of the Child, but several of its activities will be in conformity with the objectives stated in the Convention. The German-language Community has nevertheless set a number of objectives to be achieved by the year 2000. A draft decree relating to assistance to young people is under preparation and will be submitted to the Community Council in the course of 1994. Its purpose is the "dejudicialization" of this question and involves young people and their families in the decision-making process.
21. At this level it is planned to establish a group of experts responsible not only for following up the implementation of the Convention in Belgium and supervising its execution, but also for coordinating the various initiatives taken at the federal, Community, regional or even local level relating to the rights of the child.
22. Generally speaking, two para-Community institutions and one ministerial department are concerned with children, even before their birth, and with protection of the family nucleus. These are the Birth and Children Office (ONE) in the French Community and the Kind en Gezin ("Child and Family" in English) in the Flemish Community. The Dienst für Kind und Familie (DKF), the equivalent department in the German-language Community, is on the other hand directly integrated within the Ministry of Health, the Family and Social Affairs. It is nevertheless important to make it clear that these departments, to which reference is frequently made in the report and which provide basic assistance, only deal with children up to the age of 6, except in the case of certain more specific questions such as adoption or ill-treatment of children. Lastly, it should be stressed that the services are of a voluntary nature.
23. The Births and Children Office (ONE) was established on 30 March 1983 by a Decree of the French Community's Executive. In addition to its concern with questions of medicine and hygiene, reflected in the protection of pregnant women, mothers and children (up to the age of 6) within the family, the ONE constantly seeks to promote the mental and social equilibrium of the protected persons. It is directly subordinate to the French Community's Ministry of Health and Social Affairs and will therefore also deal with cases of ill-treatment of children.
24. In appointing, by an Executive Decree of 10 July 1991, a Delegate-General for the rights of the child and assistance to young people, the French Community took a further measure extending and giving specific form to recognition of the Convention. The Delegate-General has the following responsibilities:
25. In the context of these responsibilities, the Delegate-General:
Having been appointed and operating within the Community, he will also have the important role of establishing links with the State's other decision-making bodies on non-Community matters.
26. Kind en Gezin is a Flemish public institution established by the Decree of 29 May 1984. It is responsible for promoting the prospects, well-being and health of children (up to the age of 6) and assisting, in the care given to children, parents or other persons who, without necessarily having this status, in law or in practice assume a parental role. In this context, attention is given both to the physical health of the child and to his mental and social condition. Generally speaking, stress is laid on the improvement of the child's quality of life. This responsibility particularly concerns children under the age of 3 years. However, Kind en Gezin may, if circumstances so require, take a number of measures for the benefit of children of other ages (Decree of 29 May 1984 establishing the institution).
27. A number of articles of the Convention relate directly to questions forming part of the activities of Kind en Gezin. This is the case, inter alia, with article 24, which deals with the right of the child to receive the highest attainable standard of health care, and the articles relating to the protection of children against violence, abuse and ill-treatment, the rights of disabled children and the rights of the child with regard to adoption. The Convention has in fact become the reference text for all the initiatives taken by Kind en Gezin, and this approach has recently been approved by its governing body.
28. In order to give effect to the Convention, Kind en Gezin has launched a number of initiatives.
(a) The establishment of ombudsman services
29. Since November 1992, an ombudsman has been appointed in each provincial branch of Kind en Gezin. The officials in charge of these branches use the Convention as a guide for their everyday activities; when confronted with specific cases, they determine whether the young child in question is being treated in accordance with his rights as recognized by the articles of the Convention. In the first instance, the ombudsman service deals with complaints. In addition, it ensures that there is maximum access to the services offered. To this end, in response to each request for individual intervention submitted to it, the ombudsman service lists the possibilities of action by Kind en Gezin or by other bodies active in the same sectors. In difficult cases, positive results are sought through consultation, conciliation or coordination. If, despite this, it is apparent that a child aged under three years is still not enjoying his rights, the ombudsman service endeavours to define the problem more precisely (a deficiency in the existing assistance services, non-existence of a specific assistance service, negative consequences of the regulations concerned, etc.).
30. Through its work in the field, Kind en Gezin is able to highlight social trends and to formulate reports and statistics enabling the overall situation to be evaluated. These studies in turn provide means of formulating genuinely satisfactory proposals for legislation. Through their daily contacts with young parents and with those concerned with the welfare of young children, the ombudsman services can identify both the strengths, and weaknesses of the existing assistance services. Supplementary research work provides an even better understanding of the situation of young children. These two activities together, in principle, enable the ombudsman services to indicate the extent to which the Convention is already being implemented and to draw up a list of measures taken in order to facilitate access to the rights embodied in the Convention. The ombudsman services produce annual reports for the governing body of Kind en Gezin in which they mention difficulties encountered and possible solutions and make suggestions.
(b) Encouraging the authorities to take action to promote the rights of the child
31. Kind en Gezin's memorandum of December 1991 advocating an agreed new governmental approach stated: "The Convention on the Rights of the Child must be used as an opportunity for new initiatives for the benefit of children. The appointment of an ombudsman for children will undoubtedly constitute a valuable means to this end".
32. The transfer of the competence and resources of the national ONE to the German-language Community was effected by the Decree of 9 May 1988. Apart from traditional activities such as medical-social consultations for pregnant women and children up to the age of 7, the Dienst für Kind und Familie (DKF) has set itself the goal of increasing home visits by nurses, preferably nurses additionally qualified as social workers. Sex education is also promoted by this service in a non-school environment. Through its high level of acceptance in families, the DKF is the first and in many cases principal body in touch with parents. Through this public activity, the DKF also uncovers problems which not only concern the child's standard of health or education, but affect much more specific situations such as misunderstanding in the couple, financial and social problems, drug dependency, ill-treatment, etc.
33. In following up these problematic situations, the DKF tries to coordinate its action with other bodies involved, notably the Young People's Protection Committee, the public social assistance centres (CPAS) and the judicial bodies. This close collaboration has made it possible to identify and monitor in an effective and concerted fashion problems of education, ill-treatment or dependency. Another example of this successful coordination is the establishment of an adoption service managed jointly by the DKF, the mental health centre and the host family service.
and children alike
34. Far-reaching promotion and information campaigns have been undertaken in Belgium since 1989 through the ONE, Kind en Gezin, UNICEF and a number of non-governmental organizations with the aim of making the principles and provisions of the Convention known by appropriate and active means (Convention, art. 42). Brochures explaining the major principles of the Convention to children have been published and distributed in schools and youth movements. In addition, seminars organized by French and Dutch-speaking universities have enabled debates to be held on the major legal, psychological and sociological questions posed by the implementation of the Convention in Belgium.
35. For the first anniversary (16 December 1992) of the ratification of the Convention by Belgium, on the initiative of a non-governmental organization a conference presented by a psychiatrist and a judge was organized with the aim of reviewing certain specific points in the development of Belgian practice or legislation since the adoption of the Convention. For its part, the Ministry of Social Welfare has also published and distributed brochures on the rights of young people and entitlement to social security.
36. In the French Community, the Delegate-General for children's rights has taken the initiative in publishing a brochure for young people entitled "Everything you always wanted to know about your rights but never dared ask". It contains information on the Convention, the Delegate-General for children's rights and assistance to young people, and the Youth Assistance Counsellor. The brochure was distributed primarily in the youth assistance services at the end of 1991. It was republished in September 1992 for distribution in schools. It contains various additions, including the Young Children's Charter, and information on the role of the judicial authorities and on school law. Posters informing young people of the responsibilities of the Delegate-General were also distributed in all sectors concerned with children. Stress should also be laid on the initiative taken by academic circles, which now give courses on the rights of the child in particular.
37. In addition, non-governmental organizations, such as Defence for Children International Movement, and other organizations such as the Mouvement Défense-Droits de l'Enfant and the Ligue des Droits de l'Enfant have set themselves the primary objective of ensuring that Belgium fulfils the commitments deriving from the adoption of the Convention. In this context, they receive any information relating to any discrepancy between Belgian legislation or State practices and the Convention, and undertake any inquiry necessary for respect for the Convention.
38. In the Flemish Community, Gids voor Het Gezin, published on the occasion of the International Year of the Family, draws attention to the Convention. As regards activities to promote family education, the Royal Decree of 11 March 1974 organizing the granting of subsidies for activities designed to promote family education and encourage the development of family life and the training of persons responsible for family education offers the possibility of addressing the subject of the rights of the child during these activities.
39. In the Decree of 24 July 1991 relating to general social assistance, article 3 stipulates that the purpose of such assistance is to organize assistance activities with the aim of preventing, mitigating, identifying and eliminating problems that threaten or reduce the chances of well-being for individuals, families or groups. The consequent executive orders have not yet been approved, and work is now in progress on the existing regulations, notably with regard to youth centres. The instrument in question is the Flemish Executive Order of 12 December 1990 establishing the conditions for approval and subsidization of youth centres. These centres regularly distribute information guides and brochures relating to children, young people and their rights. The Federatie van de Jongeren Informtie-en Adviescentra also regularly publishes an information guide. The 1994 edition, which is entitled Jongerengids 94, om te weten waar je staat, is available free of charge. The policy of assistance for disadvantaged persons supports the Vierde Wereld movement, which deals with the rights of the child.
IV. Measures taken or foreseen to make the report of
Belgium widely available to the public at large
40. Since the drafting of the Belgian report is the result of cooperation between the various national and Community bodies having competence in this area, these authorities will, each in their own field, endeavour to ensure that it is as widely available as possible. Thanks to this collaboration, the report will be distributed in schools, universities, non-governmental organizations and so on. The first step to be taken will be to translate the report into the two other national languages, Dutch and French.
Definition
41. The definition of the child in Belgian civil law is in line with the one in article 1 of the Convention, although Belgian law prefers the term "minor" to "child": "A minor is an individual of either sex who has not yet attained the age of 18 years" (Civil Code, art. 388).
Civil majority
42. The age of civil majority, previously fixed at 21 years, was lowered to 18 by the Act of 19 January 1990, which came into force on 1 May 1990 (Moniteur belge of 30 January 1990). The chief argument in favour of lowering the age of majority was "to adapt the legal rules to the new social reality, that is to say, in particular, the greater independence and effective emancipation of young people around the age of 18". This age seems to be a turning-point, since it coincides more or less with the end of secondary education and the beginning of higher education or working life. But even before the 1990 Act, a young person could exercise a whole series of rights from the age of 18, such as the right to conclude a work contract, to vote in certain elections, to be criminally liable, etc.
Minimum legal age for the exercise of certain rights and obligations
43. As regards the minimum legal age for the exercise of certain rights and obligations, although Belgian law lays down a minimum age in some situations, it is silent in others.
(a) At the federal level
44. There is no provision in Belgium fixing the minimum age at which a child can consult a lawyer. From the standpoint of the organization of justice, it should be mentioned that on the initiative of certain bar associations, a voluntary service is provided at juvenile courts, offering free advice to young people involved in court proceedings.
(b) At the Community level
45. In the French Community, young persons law services make legal advisers available to minors, backing up various kinds of judicial action taken to help young people in proceedings before the juvenile court, actions against Public Social Aid Centres, actions under educational law, etc.
46. In the Flemish Community, there are a number of centres giving young people easier access to legal advisers. They include the following:
(i) Youth Centres: article 3.3 (b) of the Flemish Executive Order of 12 December 1990 establishing the conditions for approval and subsidy of youth centres makes it a condition for approval that the centres should perform, on a permanent basis, the following function for persons, families or groups under the age of 25 who are in social difficulty or in particular danger: to formulate precisely, with the persons concerned, the assistance they need or their social difficulty, to find the most viable solutions and to help realize them by providing information and advice of a material, social, psychological, legal or medical nature. All approved centres perform this function, since it is a condition for approval. The Bruges Youth Centre has organized a law bureau for children as part of its activities. In addition, the Federation of Youth Centres has set up an information telephone line through "Overleg Kinderen Jongerentelefoon". The centres received a non-regulated subsidy of BF 300,000 for this purpose in 1993.
(ii) Everyday Life and Family Affairs Centres: article 4.1 (d) of the Flemish Executive Order regulating the approval of Everyday Life and Family Affairs Centres and the granting of subsidies to them makes it a condition for approval of such centres that they must provide information and, where appropriate, advice on the basic concepts of personal and family law. Eventually, these two texts will be amended to form an order implementing the above-mentioned decree of 24 July 1991 concerning general social aid.
(iii) Public Social Assistance Centres (CPAS): In accordance with the Flemish Community Executive Order of 6 February 1991 laying down objective criteria for allocations from the Special Social Assistance Fund, subsidies are awarded, in connection with projects for the disadvantaged, to CPAS which set up legal aid services.
47. Article 16 of the Decrees on special assistance for young people, coordinated on 4 April 1990, provides that when a request for mediation has been submitted to the mediation commission for special assistance to young people in connection with a behavioural problem with a view to an agreement on (voluntary) aid, the minor can be assisted, or if the mediation commission so authorizes, represented by a trustworthy person of his choice. If the minor himself is not capable of doing so, the mediation commission may appoint a trustworthy person on its own initiative. The person in question may be a lawyer.
48. In the German-language Community, free legal advice for children and young people is provided through a young persons' information service (Infotreff) subsidized by the Community. The social service of the Committee for Protection of Young Persons (called in the draft decree "Service for Assistance to Young Persons") is ready to consider any request relating to assistance to and protection of young people, regardless of the age of the person making the request.
49. A young person has the right, in consultation with his parents, to choose "his" doctor and "his" medical treatment. If a minor's parents are opposed to any particular medical treatment, the doctor can disregard their view if the minor is capable of forming his or her own views, i.e. of due discernment. There is thus no fixed minimum legal age, but the care provided by the doctor will depend on the child's degree of "discernment".
3. Fulfilment of compulsory education requirement
50. Under the Act of 29 June 1983, full-time education is compulsory from the age of 6 to 15. From his sixteenth to his eighteenth birthday, a young person is obliged to pursue at least part-time education; he thus has a choice between full-time or part-time education.
51. From the age of 15, a young person engaged in part-time education can enter into a contract for part-time ordinary work. In such cases, the young person is normally covered by all aspects of the social security system, except the pension fund, to which he accordingly does not contribute. In addition, a working pupil can be recruited part-time under a practical training contract on condition that he is registered as seeking part-time work.
52. Under article 7.1.1 of the Labour Act of 16 March 1971 it is forbidden to employ minors who are still covered by the full-time education requirement or to employ them on work that is outside the framework of their education or training. It is thus only from the age of 18 that a young worker can enter into a full-time employment contract.
53. Young workers under the age of 18 may not do underground work at mines, opencast workings or quarries (Act of 16 March 1971, art. 8). In article 9, the Act states that workers under the age of 18 may not do work that is beyond their strength, threatens their health or places them in moral danger.
54. The law considers that a minor under the age of 16 does not have enough "discernment" to enter into a sexual partnership. It therefore implies that such a minor can never consent to sexual relations, even if it is proved that he or she was consenting or that his or her attitude was provocative. In principle, "consenting" sexual relations are free from the age of 16, provided that they do not offend public morality.
55. The age at which a person can lawfully enter into marriage was changed under the Act of 19 January 1990. New article 144 of the Civil Code states that the minimum age for marriage, both for young men and for young women, is uniformly fixed at 18. (Before the reform, a boy could not contract marriage before the age of 18 and a girl before the age of 15; a young person old enough to marry could do so but would have to have the consent of his parents if under the age of 21. As things now stand, the age of legal capacity is the same as the age for marriage: a young person of 18, being of age, can marry without needing parental consent. It is possible to obtain permission for marriage at a younger age "on serious grounds". The juvenile court is competent to give such permission.
56. For persons who are not candidates for the rank of non-commissioned officer, the Royal Decree of 13 November 1991 on the recruitment and training of volunteer candidates, adopted in implementation of the Act of 21 December 1990 containing the regulations governing candidates for active military service, states in articles 6 and 7 that the candidate must have fulfilled the compulsory education requirement: a candidate wishing to enlist as a regular soldier must either hold a diploma or certificate showing that he has successfully completed the first three years of secondary education or the equivalent, or be able to produce a certificate to the effect that he is capable of satisfying these conditions at the end of the current school year. For officers, the various statutory provisions fix a minimum age of 17 to be reached by the candidate during the year in which he is accepted for training. In the case of non-commissioned officers, it is possible for candidates to follow a course of training before the age of 16. In such cases, they will be civilian pupils up to the age of 16, after which they will receive military training combined with the syllabus for full secondary education.
57. In peacetime: Until December 1992, military service was compulsory in Belgium. Under article 4 of the Acts on the militia, coordinated on 30 April 1962, every Belgian, from the year in which he reached the age of 16, was registered on the call-up lists for the year in which he reached the age of 19. Deferment was possible in the situations covered by article 10 of the same Act. Early call-up was also possible: in such cases, the recruit was allowed to serve with the class of the year in which he reached the age of 18 on condition that he was found to be fit to serve. The Act of 31 December 1992, limiting the application of the old legislation to militiamen whose call-up year was 1993 or earlier, has now suspended any obligation to do military service.
58. In wartime: Due account being taken of the limitations introduced by the Act of 31 December 1992, article 2, paragraph 4, of the Acts on the militia coordinated on 30 April 1962 states that "militiamen shall be part of the recruitment reserve from 1 January of the year in which they reach the age of 17, until the time when they are taken into the army or their military obligations come to an end. This reserve can only be called up in the event of war or a threat to the territory".
59. The Judicial Code states in article 931 that a minor under the age of 15 may not be heard on oath, but that his statements may be taken for purposes of information. According to article 961, evidence given by a person incompetent to testify is null and void. A child, moreover, cannot be heard in a case in which his ascendants have opposing interests. It follows from these rules that, as the law now stands, a judge in an ordinary court cannot hear testimony, in the context of the examination of witnesses, from the child of two parents who are in conflict over the exercise of parental authority. He could, on the other hand, hear as a witness the child of only one of the parties to the dispute, e.g. the child of a previous marriage, or even the child of the new partner of one of the parents, but he could only do so in conformity with the rules of procedure applicable to the examination of witnesses and, in particular, the rule stating that witnesses shall be heard in the presence of the parties and, hence, of their lawyers (Judicial Code, art. 933).
60. In criminal matters the intention has also been to exclude the evidence of persons whose credibility seemed to be open to question. Among other conditions, therefore, the law imposes an age-limit for witnesses who are to be heard: the witness must be at least 15. Under article 79 of the Code of Criminal Procedure, however, children of either sex under the age of 15 can be given a hearing in the form of a statement and without taking an oath.
61. A person under the age of 18 at the time when he committed an "act characterized as an offence" is not dealt with under the criminal law, but, at the federal level, under the Protection of Young Persons Act of 8 April 1965. This Act has been amended and supplemented by decrees by the Communities, which are now competent in the matter of protection of young persons.
62. As far as juvenile offenders are concerned, however, the federal authority remains competent to determine the measures that may be taken, although the application of those measures depends on the Communities. Minors who have committed acts characterized as offences will be brought before the juvenile courts, which can order protection measures, not impose punishments. The law thus considers that a minor cannot be held responsible for an offence even if all the elements constituting the offence are present. Nevertheless, minors over the age of 16 who have committed offences against the traffic regulations will be prosecuted before the ordinary criminal courts (Act of 8 April 1965, art. 36 bis). But if it becomes evident from the proceedings in these courts that a custodial, preventive or educational measure is more appropriate, the courts can relinquish jurisdiction, stating the reasons for their decision, and refer the case to the Procurator's Office so that it may take the matter before the juvenile court.
63. Under article 38 of the Act of 8 April 1965, a minor brought before the juvenile court can nevertheless be tried as an adult if he was over the age of 16 at the time of the offence and if the court considers that any custodial, preventive or educational measure would be inadequate. In that case, the juvenile court may, giving reasons for its decision, relinquish jurisdiction and refer the case to the Procurator's Office with a view to proceedings before the competent court. In the eyes of the law, however, such relinquishment of jurisdiction should remain an exception. A minor under the age of 16 can never be prosecuted before an ordinary criminal court.
64. The Act of 20 July 1990 on remand in custody is not applicable to minors. Under article 53 of the Act of 8 April 1965, the judge of the juvenile court, and exceptionally the examining magistrate, may have a minor held provisionally in a local prison for not more than 15 days. This measure has been abolished by the Flemish Community and the French Community in so far as it refers to minors who are not offenders.
65. In practice, an offender who is a minor and is suspected of having committed a serious offence such as serious theft or an act of violence against persons or property is taken by the police before the Crown Procurator's Office: the competent magistrate has a personal interview with the minor and an investigation is made into the substance of the matter. The minor may be held at the police station for up to 24 hours. In serious cases, the Crown Procurator's Office will ask the judge of the juvenile court to take appropriate provisional measures with a view to releasing the minor under supervision or placing him in police custody, and, in exceptional circumstances, it will refer the matter to the examining magistrate. These decisions are determined by certain specific aspects of the facts, the personality of the offender and his background.
66. Article 53 of the Act of 8 April 1965 specifically provides that provisional custody in jail may only be used "if it is in practice impossible to find an individual or institution to receive the minor straight away". As long as the infrastructure of public institutions for observation and supervised education, particularly closed institutions, remains inadequate over large parts of the country, the present article 53 of the Act of 8 April 1965 will have to be maintained. The application of this article nevertheless has to be accompanied by substantial legal safeguards for the minor. As things stand, article 53, as amended by the Act of 2 February 1994, is in conformity with Belgium's international obligations as spelt out by the European Court of Human Rights (Bouamar decision). This subject will be discussed further in connection with the consideration of article 37 of the Convention. Under article 60 of the same Act, the judge of the juvenile court may, at any time and before the expiry of the 15-day period, either on his own initiative, or at the request of the Procurator's Office, revoke or modify the original decision (e.g. changing it to placement in a specialized environment, either open or closed).
67. In the French Community, the Decree of 4 March 1991 on assistance for young persons states in article 18 that committal to a closed environment can only mean to a public institution of the Community and that this procedure is reserved for young persons prosecuted and placed under a judicial decision ordering such placement.
68. In the Flemish Community, the Decrees on special assistance for young persons, coordinated on 4 April 1990, state in article 23 (not yet in force) that a minor with behavioural problems cannot be placed in an appropriate closed establishment of the Community unless the following threefold condition is met: (a) he must have reached the age of 14; (b) he must have run away several times from the family he is living with or the open establishment in question; (c) the measure must be necessary in order to maintain the integrity of his person. This measure, which may not exceed a duration of three months, may nevertheless be renewed once for the same maximum period of three months.
69. Since 1 January 1991 there has been a Royal Decree prohibiting smoking in closed premises (i.e. "any place that is normally cut off from its surroundings by walls and has a ceiling") which are open to the public and form part of establishments or buildings in which services are provided to the public, patients are treated, young people are accommodated, etc. There are penalties for adults who disregard the ban on smoking in these premises. In the case of young people under the age of 18 who contravene this regulation, the juvenile court is competent to take any protective measures that it considers it necessary to impose with regard to them.
70. In the event of consumption of alcohol which would place a minor in danger, the matter can be brought before the juvenile court by the Crown Procurator or on the basis of a complaint by the parents or the person who has custody of the minor. The juvenile court can reprimand the minor and place him under the supervision of the competent social service or apply to him one of the protective measures provided for in the Protection of Young Persons Act of 8 April 1965 through a representative of the court.
71. As to the abuse of other drugs (narcotics, sleeping pills, etc.):
(a) If the Crown Procurator learns of a minor manufacturing, acquiring, possessing or selling drugs or being involved in group drug consumption, he brings the matter before the juvenile court, which can take protective measures with regard to the young person in question.
(b) If a young person aged between 16 and 18 commits repeated offences owing to drug consumption, the juvenile court is likely to relinquish jurisdiction and refer the case to the Crown Procurator with a view to prosecution after arranging for a social study and a medical and psychological examination.
72. Apart from these few examples, Belgian law lays down a minimum legal age for the exercise of other rights and obligations. These are discussed later on in the report (with regard to adoption, establishment of filiation, guardianship, recognition of a child, the right to social assistance and the right to a minimum livelihood, etc.).
73. Following the ruling against Belgium on 13 June 1979 by the European Court of Human Rights in the Marckx case (discrimination between a natural and a legitimate child regarding the right to respect for privacy and family life) and in view of certain instances of discrimination in matters of succession (see Vermeire case judgement of 9 November 1991 of the European Court of Human Rights), Belgian legislation concerning filiation should be adapted to bring it into line with the requirements of the European Convention on Human Rights.
74. The general principle of the Act of 31 March 1987, substantially amending the provisions of the Civil Code, was the equality of all children, whether or not they were born to married parents. On the basis in particular of article 10 of the Constitution, which guarantees the equality of everyone in the eyes of the law, the main objective of the new provisions was to abolish all hierarchy and discrimination in filiations. This objective has materialized both in law (from now on all references to "legitimate", "natural", "adulterine", "incestuous" are deleted) and in substance, with the establishment, of rules to meet the following triple requirement:
(a) Virtually unreserved authorization to establish or dispute any filiation, the sole restriction concerning children formerly classified as incestuous;
(b) Ensuring of complete equality among all children, whether or not born in wedlock, in terms both of their rights and of their obligations;
(c) An indispensable balance between the protection of the family nucleus resulting from a marriage and the rights of children formerly classified as "adulterine".
75. The main principles of the Act of 31 March 1987 may be summed up very briefly as follows:
(a) For all children the maternal filiation is established by simply including the mother's name in the birth certificate; as the adage has it: "mater semper certa est";
(b) Where the paternal filiation is concerned, the greatest possible latitude is given to the presumption that the husband is the father and, in the case of children not benefiting from this presumption, the law encourages as far as possible recognition by the father and the use of all forms of proof in filiation proceedings. An innovation in article 331 octies should be mentioned here, namely that in filiation proceedings the courts may order blood tests or any other tests, in accordance with scientific methods;
(c) Whatever method is used to establish the filiation, the value of a child's share in the estate is currently identical;
(d) Lastly, the law endeavours to reconcile the rights of a child formerly classified as "adulterine" with the interests of children born in wedlock. In order to do so, provision has been made for some adjustments on behalf of the spouse and children born in wedlock, which do not, however, prevent children born out of wedlock, from establishing their filiation or from receiving the same advantages in regard to the amount of their share of the estate. In order to meet this necessary requirement of reconciliation, the law stipulates, for example, that "adulterine" children may only be brought up in the matrimonial home with the agreement of their parent's spouse (Civil Code, art. 334 bis).
76. However, as the law stands, it is still impossible for incestuous children to have a dual filiation. When the paternal filiation has been established first, the maternal filiation cannot be established if to do so would reveal an impediment to marriage between father and mother for which the Crown cannot give a dispensation (Civil Code, art. 313, 2, concerning maternal recognition; art. 314, para. 2, concerning filiation proceedings). The same holds for determining the paternal filiation, once maternal filiation has been established first (Civil Code, arts. 321 and 325, concerning paternal recognition and filiation proceedings). This discrimination may, however, be understood in terms of non-legal considerations (in particular moral or sociological). Once the filiation has been established, whatever the method used, all the children and their descendants have the same rights and obligations vis-à-vis their father and mother and the parents and relatives of their father and mother and vice versa.
77. The specific situation of children born of extra-marital relations has led the Legislature to subject the exercise of certain rights to conditions and terms which respect the moral and patrimonial interests of the family nucleus resulting from marriage, without calling in question the equality of the rights of all the children. It may therefore be in the child's interest to claim maintenance when the establishment of filiation is not desirable or possible (in the case of adulterine or incestuous children). The child may then initiate proceedings to claim maintenance without acknowledgement of filiation. The right of the child (Civil Code, arts. 336 to 341: claim for maintenance) vis-à-vis the man who had relations with his mother during the legal period of conception is therefore the same as that provided for in article 203 of the Civil Code (general law maintenance obligation).
78. As to the patrimonial effects of filiation, new article 723 of the Civil Code governs the order of inheritance between heirs by doing away with the previous discrimination vis-à-vis so-called "natural" children. All children have the same rights of inheritance, whether or not born in wedlock, and whether it is in direct line (Civil Code, art. 745, para. 1) or collateral line (Civil Code, art. 752). All descendants have the same inheritable reserve (Civil Code, art. 913). However, article 837 of the Code introduces the possibility that the surviving spouse and the children born of the marriage can set aside the child born of adulterous relations from the division in kind, and to assign him a share in value, estimated by an expert if necessary. The purpose of this provision is to protect the spouse and children born in wedlock from the intervention of an heir who has not lived in the marital home and who could, for example, require the sale of the estate or a part of it that the family wishes to preserve as such. This option of setting aside children born of adulterous relations from the division in kind is not permitted if these children were brought up in the joint household or if the marriage was dissolved prior to a succession caused by death or divorce.
79. With regard to the right to care and social benefits, the law establishes a different system of social security benefits for children, depending on the parents' occupation and whether they are first, second, third or later children. The social security benefits in force in Belgium on 1 July 1993 differ: ordinary family benefits amount to BF 2,550 per month for the first child of wage-earning parents (BF 4,718 per month for the second child and BF 7,044 per month for the third and each of the following children), BF 743 per month for the first child of independent parents, BF 5,343 per month for the first child of disabled workers (BF 5,523 per month for the second child and BF 7,185 per month for the third and each of the following children), and BF 9,796 per month for the child of an orphan.
80. With reference to advances on maintenance benefits and the payment of these benefits by the public social assistance centres (Act of 8 May 1989, included in the Organization Act of 8 July 1976 on the public social aid centres), the right to maintenance advances was not open to all the children. Children who had obtained the right to maintenance advances, on the basis of article 336 of the Civil Code, did not come within the scope of the Act of 8 May 1989. Hence there was discrimination between the categories of child beneficiaries.
81. Later on, the Act of 29 December 1990 on social provisions (Moniteur belge of 9 January 1991) extended the right to advances on the terms of the maintenance benefit to children who successfully initiated proceedings - without acknowledgement of paternal filiation - for the grant of an allowance for their maintenance, education and appropriate training, against the man who had had relations with their mother during the legal period of conception (hypothesis provided for in article 336 of the Civil Code). In view of this extension of the scope of the law, it may be considered that the statutory provisions concerning maintenance advances are no longer likely to create discrimination between children.
82. By the same Act of 29 December 1990, the conditions governing the right to maintenance advances were also made more flexible, in the section on conditions concerning the person required to pay maintenance, who no longer needs to live in Belgium (he may reside in Belgium or abroad; it is no longer even necessary for his address to be known). The children of single-parent families stand in most need if the person required to pay maintenance cannot be found and it is impossible to recover the maintenance. Hence, there is no longer any difference as regards access and the right to maintenance advances in terms of whether or not the place of residence is known.
83. Generally speaking, the Births and Children Office, Kind en Gezin and the Dienst für Kind und Familie, which look after the well-being of children, guarantee free care and protection to children regardless of any considerations of race, colour, sex, language, religion, political or other opinion of the child or his parents or legal representatives, their national, ethnic or social origin, their financial situation, their disability, their birth or any other circumstance.
84. The rights and integrity of the child occupy a central position in Belgian legislation and policy. The parents have prime responsibility for keeping and bringing up the child, but they (or the other persons legally responsible) must respect the child's life and personal integrity.
85. The child must be protected against ill-treatment, even if it is meted out by the parents. The Protection of Young Persons Act raises the question of the best interests of the child when he is "in danger" and provides for a whole range of measures adapted to the situation experienced by the minor and aimed at remedying it. The protection of minors in danger, however, now comes within the jurisdiction of the Communities, which have taken (French and Flemish Communities) or are on the point of taking (German-language Community and Brussels-Capital Region) the necessary steps to ensure this protection.
86. A young person who commits an offence shows shortcomings in integration into the standards of social coexistence. The offence only justifies intervention to restore or cancel out this integration; this is why, in the protection of young persons, the reaction of society must have an educational purpose, since the child's interests are paramount.
87. This principle is also expressly mentioned in some texts, such as article 319 of the Civil Code, concerning recognition of paternity. This provision, which will be analysed more fully in connection with article 7 of the Convention, provides that recognition may possibly be established in legal procedure in which the judge has broad discretion to appraise the child's interests in being recognized or otherwise by the man who claims to be his father. The court's appraisal will determine whether recognition is advisable and what the child's interests are. It will refuse authorization if the applicant is unworthy, if it sees him as an undesirable father, if indeed it is desirable for the child that this man should not be vested with parental authority (Civil Code, arts. 343-370).
88. When a child is helped by a public social assistance centre (CPAS) under the Organization Act, dated 8 July 1976, it is self-evident that the best interests of the child should be borne in mind. This stems indirectly from the articles which define the right to social assistance and how the tasks assigned to the CPAS should be ensured. Article 1 of the Organization Act, which sets out the right to social assistance to enable the individual to lead a life in keeping with human dignity, should be taken in the sense in which the notion of each individual's need is completely personal (in this case, the need of the child).
89. In the individualization of the assistance:
"The public social aid centre performs its task by following the social work methods best suited to the case and by respecting the ideological, philosophical or religious convictions of the persons concerned (art. 59);
Action by the centre, preceded, if necessary, by an investigation, concluding with an accurate diagnosis of the existence and extent of the need for assistance and proposing the most appropriate means for providing it (art. 60, para. 1);
It grants material aid in the most appropriate form (art. 60, para. 3);
While respecting the free choice of the person concerned, it provides the psychological, social, moral or educational guidance required by the person assisted to enable him gradually to overcome his difficulties by himself. It takes into account guidance already provided and the possibility of it being continued by the other centre or service in which the person concerned has placed his trust (art. 60, para. 4);
When the CPAS is not in a position to grant assistance itself, it may resort to the collaboration of persons, establishment or services which, whether public or private, have the means to implement the various solutions required, respecting the free choice of the person concerned" (art. 61, para. 1).
These articles refer to a method pursued by a social worker to obtain the most appropriate aid in keeping with the interests of the person assisted, in this instance, the ever-present interests of the child.
90. In the French Community, the spirit of the Decree of 4 March 1991, which is aimed, inter alia, at helping young persons in danger or difficulty, is based on scrupulous respect for their rights. As a result, when a social assistant is confronted with several rights at the same time, he must ensure that the child's interests prevail, without opposing the rights of the persons vested with parental authority.
91. Article 3 of the Decree sets out the right to special assistance for all young persons in difficulty and for all children whose health or safety is in danger, or where the conditions of their upbringing are jeopardized by their behaviour, that of their family or their friends. The purpose of this special assistance is to provide the young persons concerned with an opportunity for a life in keeping with human dignity. The interests of the young person are therefore the essential justification for this special assistance, article 4, paragraphs 1 and 2, of the Decree provide that: "Anyone who provides young persons with the assistance due to them shall respect their recognized rights, their religious, philosophical and political beliefs and shall act in their best interests."
92. With reference more particularly to article 3, paragraph 3, of the Convention, it should be noted that Title VIII of the Decree of 4 March 1991 relates to the approval by the French Community required of services and persons offering to provide a home for or habitually assist young people. The conditions of approval of such persons and services are still governed by an Order prior to the entry into force of the Decree, the Order of 7 December 1987, concerning the approval and granting of subsidies to persons and services providing support measures for the protection of young persons. This Order, which is currently being revised in the context of the implementation of the Decree lays down standards which persons and services must meet in order to be able to receive from the requisite approval; these standards cover the areas set out in article 3 of the Convention, namely, safety, health, and the number and suitability of these services and staff. Titles VIII and IX of the Decree (in particular article 52) ensure that compliance with these standards is monitored.
93. In the Flemish Community the best interests of the child are also the basis of voluntary aid as governed by the coordinated Decrees of 4 April 1990 relating to special assistance to young persons. Article 4 of these Decrees specifies that the Committee for the Protection of Young Persons ("Comité voor bijzondere jeugdzorg") must, in the best interest of the child, organize for minors and persons who are vested with parental authority or have custody of them, effective assistance in situations of behavioural difficulty. Similarly, under article 23, paragraphs 1 and 2 (not yet in force) of the Decrees, the measures taken by the juvenile court vis-à-vis minors in such situations and placed in a foster family or institution, must enable family-based action to be taken, notably by reducing the distance between the place at which the measure is taken and the minor's home, unless it can be demonstrated that this is contrary to the minor's interests.
94. For the German-language Community, the Protection of Young Person's Act of 8 April 1965 still remains fully applicable. Institutions and persons providing a home for minors are covered by the Executive Order of 14 June 1985, amended by an Order of 16 December 1991. However, a draft decree reforming the Act of 8 April 1965 is being prepared and will be deposited with the Council of the Community during 1994. The right to organized official assistance under this decree is intended to provide the young person with an opportunity for a life in keeping with human dignity and to further his development under the best possible conditions. The draft decree specifies that the assistance contributed to the persons who are bringing up the young person must respect his fundamental interests.
95. Under the provisions of the Civil Code, a child acquires legal personality, i.e. legal existence, on the day he is born, provided he is born alive and viable, even if he is abnormal. Civil law goes further, however, in that it recognizes that a child exists in the eyes of the law before he is born, although he has neither age nor name; articles 725 and 908 of the Civil Code lay down that he may inherit and may receive gifts on the suspensive condition of being born alive and viable.
96. Abortion is permitted in certain situations of distress for which the Act of 3 April 1990 makes express provision. Certain acts carried out during a voluntary termination of ordinary pregnancy may be reimbursed by the sickness and disability insurance.
97. In the German-language Community, the Decree of 8 May 1988, amended by the Decrees of 7 May 1990 and 21 January 1991 on the establishment of a children's fund was supplemented by the establishment of a fund for the protection of unborn children, with the aim of making a pregnancy easier when it is undesired for financial reasons; special financial assistance and psycho-social support are used. The "clientele" mainly tend to be recruited through gynaecologists who, with the agreement of the future mother, inform the Dienst für Kind und Familie (DKF) of the straitened circumstances of the pregnant woman. In addition, the DKF organizes home visits, and ante-natal and infant consultations in collaboration with paediatricians, general practitioners and gynaecologists. The new "mother's card", created in collaboration with gynaecologists practising in the German-language Community is distributed to all pregnant women. The organization of ante-natal courses in collaboration with the staff of the regional hospitals, the distribution of the child's health card by paediatricians or the DKF for all children, and collaboration with school doctors in promoting dental hygiene are pertinent examples of the DKF's local action and its concern for coordination and consultation.
98. In the Flemish Community, support by Kind en Gezin begins before the baby is born. The future parents may refer to the doctor attending them or to free Kind en Gezin ante-natal consultation clinics, since regular ante-natal supervision is recommended. During the consultation, the future mother is given a gynaecological examination. Preventive medical support provided by Kind en Gezin is by home visits to pregnant women or during information sessions organized for the future parents. These sessions discuss health, way of life, hygiene and food as factors which profoundly influence the successful outcome of the pregnancy and the birth, the child's development, the circumstances of the birth, and health during the early years of life. Under article 4, paragraph 1, of the Decree establishing Kind en Gezin, this organization's task also consists in preventing perinatal mortality and premature births and in ensuring full development of the child. After birth in the maternity hospital, most women are visited by a medical/social worker, who thus makes the first contact with a view to continued support at home and at the consultation centre.
99. In the French Community, the role played by the Births and Children Office (ONE) is similar. The purpose of the antenatal consultations is to monitor successful progress of the pregnancy, to prepare the future mother physically and psychologically for a birth without problems and lastly, if necessary, to guide the couple in their role as parents. Antenatal consultations are provided by a gynaecologist or obstetrician, assisted by one or more medical/social workers. The observations made during the antenatal monitoring are communicated to the doctor attending the birth in the "mother's card".
100. For some years now, along with these consultations a new form of antenatal monitoring is in the process of being established. This consists of antenatal centres within the maternity hospital which provide psychological, medical and social monitoring of the pregnant woman up to the birth, on the basis of a project approved by the ONE. The medical/social worker who takes part in the consultation may also visit the future mother's home if she so requests, or if a particular problem prevents her from making the journey. On such occasions, he or she will explain to her in greater detail the measures the doctor has prescribed, such as diets, additional examinations or the need for complete rest. The medical social worker is also the person best placed to explain to the future mother the more complex aspects of social legislation for pregnant women (subsidies, family allowances, maternity leave, etc.) and, naturally, he or she will endeavour to answer all other questions. It should be recalled that he or she also visits the maternity hospitals to meet new mothers and to inform them of the services which the ONE can provide.
101. Article 19 of the Constitution guarantees all citizens, including children, the right to express their views on any subject. In accordance with this principle, a number of legal provisions, for the most part amended by the Acts of 1987 on affiliation and adoption, provide for the possibility of hearings for children, either to express an opinion, or to give their consent, or even to establish a juridical act or initiate proceedings:
(a) When the minor is himself a parent (married or unmarried), he has the right to declare the birth of his child (Civil Code, art. 56, para. 2); the right to recognize his child (Civil Code, art. 328) provided he has "due discernment"; the right to initiate affiliation proceedings (in respect of either parent) (arts. 322 et seq.); the right for an under-age mother to initiate maintenance proceedings without acknowledgement of affiliation (arts. 336 et seq.); the right to claim from the other parent a contribution to the cost of the child's maintenance and education (arts. 203 bis and 203 ter); the right to benefit from the attributes of parental authority; the right to consent to the child's adoption (art. 348); the right to request minimum maintenance;
(b) When the minor is married (and thus emancipated), he has the right to oppose the marriage of his spouse (Civil Code, art. 172); the right to apply for the marriage to be annulled (arts. 180 et seq.); the right to initiate proceedings to contest paternity (arts. 318 and 332); all the rights covered by the primary regime of the spouses (and their implementation) (arts. 214 et seq.); the right to request divorce (arts. 229 et seq.); the right to consent to the adoption of the non-judicially separated spouse; the right to obtain minimum subsistence at the joint rate;
(c) As from the age of 15, the minor has the right to consent to his own adoption and to recognition of paternity as provided for in article 319, paragraph 2, of the Civil Code; at the same age, if he has neither father nor mother, he may request the justice of the peace to convene the family council to discuss his emancipation.
102. Apart from these provisions, it should be noted that in Belgian law as it stands no other legal provision provides for the child to be heard in the various judicial or administrative procedures which necessarily concern him. These procedures are considered in the following paragraphs.
103. At the present time, Belgian law (Civil Code, arts. 402 et seq.) does not allow a minor any right to intervene in this regard. Accordingly, he is not heard with reference to the choice of guardian, nor is he consulted during family council discussions. In view of the requirements of the Convention, a modification of this system is now being studied. Under the reform envisaged, the minor will be called by the judge for a hearing as from the age of 12 in procedures concerning him and as from the age of 15 in procedures concerning his property.
104. The Act also contains some lacunae regarding a minor's right to intervene. Under article 56, paragraph 1, of the Act, a minor is not considered to be a party to the discussion on matters concerning action
vis-à-vis his parents. Hence, in these procedures the minor is not required to be assisted by a lawyer nor is any provision made for this, and since he is not a party to the case the child has no right of appeal.
105. A recent reform of the Act of 8 April 1965 amends article 56, paragraph 1, and provides that the juvenile court must first hear a minor if he is 12 years old in the case of civil procedures and of procedures concerning measures vis-à-vis his parents, in which he is not party but is nevertheless directly concerned. Another stipulation in the reform is that, before any provisional measure is taken, a minor who is 12 years old must be given a personal hearing by the juvenile court.
106. The justice of peace who rules on custody and on visiting rights never hears the child, has no access to a social service and never receives an opinion from the Procurator's Office. In addition, he is free to rule ultra petita, therefore at his own discretion, and the present trend of article 223 reveals that these decisions, far from being urgent and provisional, are often very long-term.
107. Here again a rapid overview of domestic law shows the lacunae in Belgian legislation.
(a) In the case of divorce or separation by mutual consent
108. Any hearing or any supervision by the magistrate, or any action by the Procurator's Office is completely impossible, except for recourse to the juvenile court on the basis of article 36 (2) of the Judicial Code, if a minor is in a situation of danger. During the divorce or separation procedure, the child's fate is settled on a discretionary basis in accordance with agreements established beforehand by the parents, although neither the magistrate nor the Procurator's Office are authorized to check their content, nor to demand that they be changed if they be manifestly contrary not only to the interests but also the rights of the child. The child himself is never heard or represented by an impartial third party, and even the Procurator's Office is precluded. In this context, the assignment of the right of custody and visiting rights thus elude any form of supervision by the Procurator's Office and the magistrate, who can only endorse the agreement between the parents, without being able to alter it or even able to request the child's opinion, as is possible in the context of other divorce procedures.
109. In view of this kind of obstacle, a "Praetorian" practice has been in existence for many years now in the Brussels legal circuit. The purpose of this practice is to obtain the consent of the parties to certain modifications or changes to their agreement when it seems to have an adverse effect on the basic rights of the child. The Procurator's Office requests the parties to consider the true interests of their children together and, if they feel that they should improve or rectify their agreement as indicated, to give the conciliation judge the new draft when they send a copy to the Procurator's Office. Case-law is thus established and accepts the changes of everything in the agreement that is contrary to the basic interests of the child. It is therefore necessary to ensure that the future of the child is not subject to any form of statutory formality, although this obviously does not constitute an obstacle to seeking negotiated agreements between the parents for the best interests of their children. The agreements are submitted to the judge and the child's views should be obtained or he should at least be impartially represented.
(b) In the case of divorce or separation on specific grounds
110. Although there is a slight possibility of giving the child a hearing as a result of social or psychological investigations, the judge is not allowed either to order the personal appearance of the child, since he is not a party to the case, nor to give him a hearing during an investigation. In this context the interim relief judge may request information from the Procurator's Office, on the basis of articles 872 and 1280 of the Judicial Code. This Office may also take the initiative, if a delegate for the protection of young persons so proposes, of collecting any information on the moral and material situation of the child and may carry out an inquiry. The judge may also order a medical/psychological examination. Can he, however, hear the child himself?
111. Despite emerging practice in the civil courts, the matter is very unclear as the law stands today. The judge cannot order the child to appear and question him himself (Judicial Code, art. 992) since the child is not a party to the case, although he is the person most involved. Again, the judge cannot hear his evidence because a child under 15 years of age cannot be heard under oath and can only make statements which amount to mere information; moreover, a child cannot be heard in a case in which his parents have opposing interests (Judicial Code, art. 931).
112. All in all, it seems that only the juvenile court judge, once the case is before him, may "at any time summon a minor, his parents, guardian or persons who have custody of him, both for protection and for civil proceedings" (Act of 8 April 1965, art. 51) and therefore hear the child himself. In fact, this authority is sharply contested in civil law cases, since the Bar considers that under these circumstances the child should be heard in the presence of the parties and their lawyer, in keeping with the adversarial principle.
113. In conclusion, whether it is a divorce or a separation on specific grounds or by mutual consent, the child's opinion concerning the exercise of parental authority is of extreme importance, since it is a question of taking a decision that is liable to unsettle his life. However, compliance with article 12 of the Convention should not allow its main purpose to be forgotten, namely, seeking the child's best interests. While the child's opinion is to be respected and listened to, it is not necessarily appropriate to endorse his opinion. Future legislation should take these two aspects into account.
114. In matters under their jurisdiction, the Communities are also endeavouring to bring their legislation into line with the requirements of the Convention.
115. In the German-language Community the draft decree concerning assistance to young people provides that, in regard to measures taken by the Young Persons Assistance Service, any persons affected by the measures should have a hearing, unless his age, health or an emergency make it impossible.
116. In the French Community, article 6 of the Decree of 4 March 1991 concerning assistance to young people provides that no individual decision or measure for assistance, whether accepted or imposed, may be taken by the administrative authorities established by the Decree unless the persons assisted - including the young beneficiary - have not first been summoned and given a hearing. No exception may be made to this obligation unless the hearing cannot take place on account of the person's age, state of health, an emergency, or failure to appear. These exceptions must nevertheless be viewed in the most restrictive form, particularly as regards age or state of health. The hearing of a young child should not therefore be ruled out on the pretext that he has not reached the age of discernment, i.e. at which he is capable of forming an opinion. Once he has the use of speech, a child is in a position to express his fears and desires. Similarly, the state of health should not be an obstacle to the hearing. Provision is therefore made to the effect that persons who cannot be given a hearing because of their state of health may appoint a person of their choice. Article 6 also provides that the young person must be associated with the decisions concerning him and their implementation, even when the assistance has been imposed by the juvenile court. Article 7 of the Decree stipulates that the written agreement of a young person over 14 years of age is required when he receives individual assistance from the youth assistance adviser, in other words, without with any constraint imposed by the juvenile court.
117. As to the Flemish Community, in the context of social assistance to young persons, governed by the Decrees on special assistance to young persons, coordinated on 4 April 1990, assistance that affects the individual freedom of the minor is only possible when the minor accepts it, when he reaches the age of 14 or, if he is under 14, after he has been given a hearing.
118. If the minor's case is handled by a mediation commission, he is summoned to the hearing. He may be assisted by a person of trust, or represented with the commission's agreement. If the minor is not in a position to appoint a person of trust himself, the mediation commission must officially appoint one.
119. At the level of the commune, children and young people must be associated as closely as possible with the preparation and implementation of the policy concerning activities for young people. The Flemish Community subsidizes the communes in respect of this policy, provided the children and young people take part in the preparation of a three-year plan for this policy.
120. In 1992, a young persons council was in operation in approximately 60 per cent of the communes. The young persons council may issue opinions on all commune decisions concerning young people. Meanwhile, the entry into force of the decrees on participation and on local policy regarding activities for young people have further stimulated the setting up of young persons councils. Each time decisions are taken concerning young people, the Flemish Young Persons Council prepares an opinion for the Flemish Council.
121. Children have from birth the right to a status. Their birth must be registered. They have the right to a name and to a nationality. Registration of their birth signifies official legal recognition of their existence. By virtue of nationality they are members of a national community and have the status of citizens. Their name gives them their own identity when it is joined to a first name, but in addition, except in the case of names given at random to foundlings or to children born of unknown parents, establishes their membership of a family group in accordance with the rules governing the devolution of names derived from affiliation (Civil Code, art. 335).
122. In Belgium births are required to be declared within 15 days (Civil Code, art. 55), failing which a penalty may be incurred. The birth certificate must necessarily show the name of the mother (art. 57 of the Civil Code), failing which a penalty may likewise be incurred (in contrast with France and Luxembourg, where there is no legal requirement for the name of the mother to be shown on the birth certificate). The naming of the mother on the birth certificate automatically establishes maternity and, if she is married, paternity in respect of her husband (Civil Code, art. 315).
123. Where previously the Civil Code remained silent on this point, new article 335 lays down rules for determining the name to be given to children born in or out of wedlock on the basis of three principles:
(a) Precedence of attribution of the name of the father in the case of simultaneous establishment of affiliation (art. 335, para. 1): if descent from the mother and descent from the father are established at the same time, the child takes the father's name.
(b) Stability of the name unless expressly decided otherwise by the parents (art. 335, paras. 2 and 3): if only descent from the mother is established, the child takes the name of the mother, and the fact of the child being recognized subsequently by the father does not entail any change in the name, unless the father and mother together, or either one of them if the other has died, declare in an instrument drawn up by the Registrar that the child is to take the name of the father. This declaration must be made within one year from the date when the persons making the declaration have received notice of establishment of affiliation and before the child's majority or emancipation. An annotation concerning the declaration is made in the margin of the certificate of birth and other instruments concerning the child.
(c) Protection of the moral interests of the conjugal family (art. 335, paras. 2 and 3): in cases where the child is born of a father married to a woman other than the mother at the time of conception, the child takes the name of his or her mother, who will usually be the person with whom he or she lives. If the father and the mother, or either of them, wish to avail themselves of the possibility of declaring that the child born in such circumstances and whose descent from the mother was established first is to take the father's name, they may not do so without the agreement of the woman to whom the father was married at the time when affiliation was established. Subparagraph 2 of this paragraph 3, while being designed to protect the moral interests of the family of origin, should, however, be modified or amended on the occasion of the forthcoming reform of affiliation legislation. A preliminary issue having been referred to it in this connection, the Arbitration Court considered that article 335, paragraph 3 (2), violated articles 6 and 6 bis of the Constitution (now arts. 10 and 11 of the Constitution) in that it made a distinction between adulterine children a patre, on the one hand, and other children, on the other hand, since it requires that the parental declaration to change the child's name be agreed to by the woman to whom the father was married at the time of establishment of affiliation.
124. With regard to the right of children to know their parents, since the Act of 31 March 1987, Belgian law permits establishment of the dual affiliation of all children born out of wedlock, with the sole exception of children born of parents between whom there is an absolute impediment to marriage (arts. 161, 162, 363 and 370 of the Civil Code). Such children, formerly known as "incestuous", can have only a single affiliation, usually descent from the mother, since this is automatically established through the naming of the mother on the birth certificate. The reason for this prohibition is that it is considered to be in the interest of the child for it not to be officially proclaimed that there exists a link of affiliation in respect of relations within too close a degree (father-daughter, mother-son, brother-sister, etc.), which could harm the child socially and psychologically. Here again, the Act of 31 March 1987, although designed to establish equality among all children, subject to the exception just mentioned, created a further inequality between the father and the mother, which indirectly rebounds on the child.
125. The mother plays a key role in establishing or challenging the child's affiliation. Not only may mothers avail themselves of the presumption of paternity within the marriage and challenge it without necessarily naming another person as father (art. 332 of the Civil Code), but also and most importantly a mother may refuse to consent to recognition of paternity (art. 319 of the Civil Code) or oppose action to establish descent from the man with whom she procreated the child (Civil Code, art. 322). In such cases it falls to the civil court to ascertain whether the man in question is indeed the child's biological father, but also whether establishment of paternity is in the child's interest (Civil Code, art. 319). The court is thus vested with the disproportionate power of deciding whether the father - but never the mother - is fit to be a good father and, if not, to deny him, and hence the child, recognition of descent from the father. At the same time, the mother may agree to a man being recognized who is not the father but with whom she may have taken up after breaking with her previous partner, and it would be impossible to challenge this recognition if the child were reputed to be the offspring of the new couple.
126. In reply to the preliminary issue referred to it, namely whether or not article 319 of the Civil Code was in conformity with articles 6 and 6 bis of the Constitution (now arts. 10 and 11 of the Constitution), which lays down the basic principle that all Belgians are equal before the law, the Arbitration Court, in its decision of 21 December 1990, stated that article 319, paragraph 3, of the Civil Code was unconstitutional in that it instituted, on the basis of sex, different treatment in respect of recognition by fathers and mothers of children born out of wedlock. Since that decision, the courts may no longer apply article 319, paragraph 3, of the Civil Code in so far as it makes recognition of an unemancipated child by a man who is the undisputed father of that child dependent on the prior consent of the mother. The solution to be found will then have to be guided first and foremost by the best interests of the child, but also by the rights of the father to respect for his family life (art. 8, para. 1, of the European Convention on Human Rights) and equality of treatment with the mother (art. 14 of the European Convention on Human Rights).
127. With regard to nationality, the new Code of Belgian Nationality of 1984 has endeavoured to limit cases of statelessness as far as possible by providing that Belgian nationality shall be granted to "all children born in Belgium who, at any time before they reach the age of 18 years (or prior to emancipation if earlier) would be stateless if they did not have Belgian nationality" (art. 10, para. 1).
128. Belgian provisions in respect of adoption are in conformity with the stipulations of article 8 of the Convention preserving the identity (nationality, name and family relations) of the child. It is true that the name of the adopted child will usually be changed and determined in accordance with article 358 of the Civil Code (ordinary adoption) and article 370, paragraph 3, of the Civil Code (full adoption); likewise, it should be noted that while, in cases of ordinary adoption, the adopted child retains certain links with his or her family of origin in the matter of maintenance (Civil Code, art. 364, para. 3) and succession (Civil Code, art. 365), fully adopted children do not retain any link, except of course in the form of an impediment to marriage (art. 370, para. 1). The first paragraph of article 8 of the Convention concerns the right of the child to preserve his or her identity as recognized by law. However, in cases of adoption, the child's identity is modified in accordance with the law. Consequently, the child is not illegally deprived of elements of his or her identity (para. 2 of art. 8). The Belgian Legislature adopted these provisions in the interests of the child.
129. The fundamental constitutional rights and freedoms are guaranteed for all citizens, children and adults alike. Every citizen enjoys freedom of expression vis-à-vis the Government and society, in other words, freedom to communicate information and to express thoughts, opinions and feelings orally, in writing or by representational means. Article 19 of the Constitution guarantees "freedom to express opinions on every subject, except in regard to the punishment of offences committed in the exercise of this freedom". Young people under the age of 18 can therefore speak in public, take part in demonstrations, refuse to subscribe to the philosophical or religious convictions of their families, and write what they wish.
130. However, the freedoms set forth in article 19 of the Constitution are in no way incompatible with the power vested in the State to prohibit and punish indecent behaviour and other acts that it considers contrary to public order. Freedom of written expression is regulated more particularly by article 25 of the Constitution, which provides for freedom of the press, and by the Decree on the press of 20 July 1831, under which misuse of freedom to express one's thoughts shall be regarded as an offence. For there to be an infringement of the legislation on the press, it is required, inter alia, that the expression of thoughts through the medium of the press should be actionable (libel, insults, etc.).
131. Article 24 of the Constitution guarantees everyone the right to education while respecting fundamental rights and freedoms. School is one of the first places that lends itself to the interplay of ideas and offers children an opportunity to express and develop their opinions.
132. In cinemas, young people under the age of 16 will be refused admittance for certain films if it is considered that they constitute a threat to minors because as they contain scenes of violence having harmful effects or any scene whose content might have a degrading effect or seriously impair the moral education of young people. In the case of other films, cinemas refuse admittance to young people under the age of 18 in order to guard against the possibility of a film being banned by the Crown Procurator on the grounds that it offends public morality.
133. In the French Community, the Decree on audio-visual media of 17 July 1987, as amended by the Decree of 19 July 1991, provides in article 24 quater that the Belgian Radio and Television Company of the French Community (RTBF) and broadcasting companies serving the French Community may not broadcast:
(a) Programmes offending human dignity or containing incitement to hatred on grounds of race, sex, religion or nationality;
(b) Programmes that may seriously harm the physical, mental or moral development of minors, in particular programmes containing scenes of pornography or gratuitous violence, with this provision applying also to other programmes or programme elements, in particular trailers, that may harm the physical, mental or moral development of minors, unless care is taken, more particularly, through the choice of broadcasting time, to ensure that minors in the broadcasting area will not normally see or listen to such programmes.
134. In addition, outside television companies whose programmes are broadcast in the French Community are required to warn television viewers, by means to be determined in an agreement concluded with the Government of the French Community, when they are intending to broadcast programmes that may be offensive to them and in particular to children and adolescents (art. 4, para. 4, of the Executive Order of 22 December 1988 laying down the conditions for granting, suspending and withdrawing permission to broadcast the programmes of outside television companies, in accordance with art. 22, para. 2, of the Decree of 17 July 1987 on audio-visual media).
135. Regarding assistance to young people, wide-ranging public information measures were taken through the distribution of a number of brochures and leaflets when the Decree of 4 March 1991 came into force. These documents, which continue to be distributed, in some cases after updating, concern the Decree itself, adoption, the rights of the child, services, and so on. This information, and other information as appropriate, is placed at the disposal of the public, particularly the young, in the reception areas of youth services.
136. In addition, the aforementioned Decree of 4 March 1991 also set up a district council to assist young people in the chief town of each judicial district. The task of the district councils is to promote coordination in the field of general prevention and to consider a timetable for meeting the district's needs for the services required to give effect to the decree. Their responsibilities include promotion of the rights set out in article 17 of the Convention on the Rights of the Child. This was previously one of the tasks of the young persons councils, which had already taken information measures, particularly with regard to AIDS, problems of violence, etc.
137. In the Flemish Community, the Decree on cable television, approved by the Flemish Council on 20 April 1994, gives due attention to the protection of minors. More specifically, radio and television companies cannot broadcast programmes capable of seriously harming the physical, mental or moral development of minors, in particular programmes containing scenes of pornography or wanton violence. This provision also concerns programmes to which the foregoing does not apply but may nevertheless harm the physical, mental or moral development of minors, unless a broadcasting time is chosen or technical measures are taken such as to ensure that minors in the broadcasting area can neither see nor listen to the programmes.
138. In the German-language Community, the Committee for the Protection of Young Persons publishes brochures and newspaper articles for children and places very extensive documentation at their disposal. Furthermore, it regularly publishes articles on the media in the local press and gives weekly advice on television programmes suitable for children. Various information and education-related initiatives concerning the media are subsidized by the Community.
139. The provisions concerning the right of the child to freedom of thought, conscience and religion make reference to rights which, in Belgium, are guaranteed for all citizens by articles 19 and 20 of the Constitution. Article 19 guarantees freedom of religion and of public worship and the freedom to express one's opinion. Article 20 provides that "no one can be compelled to participate in any way whatsoever in the acts and ceremonies of a particular religion or to observe its rest days". Furthermore, the schools organized by the public, pluralist authorities offer, until the end of the period of compulsory education, a choice between instruction in one of the recognized religions and non-denominational ethics (Constitution, art. 24).
140. Exercise of parental authority entails the power to regulate the lives of children. By virtue of this educational power, parents are able to determine the religion in which their children will be brought up. They can choose the type of education to be received by their offspring and can decide whether or not to give them a religious education. This does not mean, however, that parents can impose "their" convictions on "their" children: education is not the same as coercion. Parents can bring up their children according to their convictions, without however indoctrinating them. The difficulty that may arise consists in reconciling the child's right to make philosophical or religious choices with the power of the parents. In the eyes of the Legislature, the family is required to play an essential role. A balance of rights and duties in the family cell is vital in order to ensure the stability that is essential for the harmonious development of the young person. However, what is to be done by a school principal who is told by a child that he wants to attend the course in Catholic religion while his parents say that he is to follow the course of non-denominational ethics? There are nowadays signs of a willingness, in some isolated decisions, to authorize minors to act of their accord when their request relates to a personal right and they are sufficiently old to be assumed capable of judgement.
141. Freedom of thought, opinion and religion is also guaranteed by article 76 of the Protection of Young Persons Act of 8 April 1965, which requires judicial and administrative authorities, natural or legal persons, and organizations, institutions or establishments responsible for contributing to the measures taken in pursuance of the law, to "respect the religious and philosophical convictions and language of the families to which the minors belong". This rule has been the subject of administrative circulars which recommend that the authorities empowered to order placements ask parents clear and precise questions, before reaching any decision, in order to know whether they want their child to practise a particular religion or to receive instruction in non-denominational ethics. Obviously in the event of a contradiction in the answers obtained or opposition on the part of the minor himself, the decision to be taken is dictated by the minor's interest and aspirations.
142. In the French Community, this federal provision is, moreover, to be supplemented and revised in accordance with article 54, paragraph 2, of the Decree of 4 March 1991 on assistance to young people, which provides that "natural or legal persons, public institutions and the services responsible for contributing to the implementation of the decree are required to respect the young person's religious, philosophical and political convictions".
143. In the Flemish Community, article 44 of the Decrees on special assistance to young people, coordinated on 4 April 1990, provides that anyone who, in whatever capacity, contributes to the implementation of decrees and, more generally, to special assistance measures for young people shall be required to respect the religious, ideological and philosophical convictions of the families to which the children belong. However, as this provision may call for interpretation, it was spelled out anew in article 17 of the Flemish Government Order of 22 May 1991 laying down criteria and standards for subsidies to institutions providing special assistance to young people. This article stipulates that the establishments in which minors are placed must make the necessary arrangements for the young people to be able to continue their moral education and practise their religion where appropriate, in accordance with its precepts and requirements, pursuant to article 44 of the coordinated decrees.
144. Under article 26 of the Constitution, "Belgians have the right to assemble peacefully and without arms, complying with such laws as may regulate the exercise of this right, without however the need for prior authorization". Open-air public meetings are entirely governed by public order statutes and may be subject both to regulations and to prior authorization. Private meetings on private premises are protected by article 15 of the Constitution, which formally recognizes the inviolability of the home, allowing the possibility of house searches only as and when the law provides.
145. Article 27 of the Constitution provides for freedom of association for Belgian citizens. This freedom is required to be extended to foreigners under article 20, paragraph 3, of the Act of 15 December 1980 on access to Belgian territory, residence, settlement and removal of foreigners, which stipulates that a foreigner cannot be taken to task for his lawful use of freedom to express his opinions or of his freedom of peaceful assembly and association.
146. It should, however, be pointed out that there is one form of association that is automatically prohibited, namely an association formed for the purpose of injuring persons or property, which constitutes a crime or an offence as the case may be, merely by virtue of its being organized as such, provided however that its members are clearly limited to it and form a body capable of real action (Criminal Code, arts. 322 to 326).
147. The provisions of article 27 of the Constitution are particularly spelled out by the Act of 24 May 1921 guaranteeing freedom of association and stipulating penalties in cases of violation of freedom of association. Article 3 concerns general violations of freedom of association. Penalties may be incurred by anyone who seeks to compel a person to form part or not to form part of an association and makes use of violence or threats to that end, or gives him cause to fear that he will lose his job or sustain injury to his person, family or property.
148. In Belgium vast numbers of minors aged 6 to 18 belong to youth movements. These various groups, organized according to age and sex, serve as meeting places for these children and adolescents and help them to develop team spirit and a sense of solidarity, adventure and responsibility. Youth centres may be subsidized by the Communities and some municipal authorities. Furthermore, when young people decide to form into a group in order to organize a cultural or sports activity, they may receive subsidies from the public authorities.
149. In Belgium, article 15 may be a problem in sporting circles. Young players are often transferred from one club to another against compensation or on payment of a fee, which some people regard as child trafficking. The club to which the player belongs often asks for excessive compensation for the loss of that player to another club, considering that it is responsible for the progress made by the child in whom it has invested. The club seeking the transfer, which is often higher in the league tables, recruits a young player for his talent and is prepared to "pay a high price" to ensure that the child does not go off to a rival club. The opinion of the child who wishes to change club is not always respected when a transfer occurs, especially if the original club demands compensation. This situation is a violation of the right of the child to freedom of association (art. 15 of the Convention). In Belgium, the civil courts have settled conflicts between children and federations; they have found against clubs that refused to authorize, or demanded excessive compensation for authorizing, a transfer to another club chosen by the young player. These court decisions were based on the right to freedom of association as guaranteed in the Convention. It is then recognized by law that children must be completely free to join the club of their choice, irrespective of the financial claims of the clubs concerned.
150. Articles 15 and 29 of the Constitution, and articles 439 and 460 respectively of the Criminal Code, which penalize violations of these articles of the Constitution, lay down the principles of inviolability of the home and confidentiality of correspondence. The Act of 8 December 1992 on the protection of privacy in respect of the processing of personal data takes up the principles of Convention 108 of the Council of Europe, to which Belgium is a party, spells them out and develops them. This Act, which concerns all citizens, also protects young people when they are in conflict with their parents or as third parties. Regarding privacy and freedom of correspondence, the same principle holds true for everyone: no one has the right to read or intercept correspondence not addressed to him or her. However, some parents and some judges consider that parental authority, entailing the right to bring up and supervise their children, justifies "censorship" of a minor's correspondence. Some parents take this right as a basis for allowing them to monitor the correspondence and personal relations of their child. They are, however, obliged to use licit means for this purpose. Furthermore, parental authority may and sometimes must yield to the child's right not to be subjected to such interference when the child is capable of due discernment.
151. It should be made clear that interference by the public authorities in the lives of minors and their families is motivated in each case, in accordance with the various provisions of the Act of 8 April 1965, by considerations regarding public security, law and order or the prevention of criminal offences.
152. In the French, Flemish and German-language Communities, the medical and welfare personnel of children's organizations, owing to the fact that they are in direct contact with families and are trusted by them, know a great deal about them and how they stand financially, medically, socially, emotionally, etc. They are therefore bound by the rule of professional secrecy. As children are the primary concern of such organizations, medical and welfare personnel comply strictly with their obligation to keep silent unless a child is in serious physical or moral danger.
153. A security system has also been introduced into data banks. Sensitive matters are not recorded in the computer (however, such data can be communicated to other welfare services concerned). Administrative and medical data are reproduced in data banks. However, the consent of parents is required in order to be able to process or communicate medical data. In all cases, the use of data in any field is subject to the prior agreement of the parents because the persons concerned are so young. As regards measures to protect and assist young people, both federal legislation (Act of 8 April 1965) and the decrees of the French and Flemish Communities require that the persons contributing to their implementation observe professional secrecy.
(art. 37 (a))
154. Generally speaking, chapter 1 of Title VIII of Book II of the Criminal Code severely punishes all forms of homicide. As for the death penalty, although it is still provided for in the Belgian Criminal Code (arts. 8 to 11) and is still handed down by courts at the present time, no one sentenced to death for an ordinary criminal offence has been executed since 1918. In accordance with ministerial instructions, it is the duty of the judicial authorities, in cases where the death sentence is handed down, to lodge automatically a petition for mercy. It is then a tradition, through exercise of the prerogative of mercy, to commute the death sentence to a sentence of life imprisonment.
155. Under article 1 of the Act of 31 May 1888 on conditional release, those sentenced to life imprisonment may be released on parole when more than 10 years of imprisonment have already been served, increased to 14 years in the event of a fresh conviction.
156. On 28 August 1983 Belgium signed Protocol No. 6 to the European Convention for the Protection of Human Rights and Fundamental Freedoms concerning the abolition of the death penalty. This Protocol affirms the principle of the abolition of the death penalty and recognizes the individual's right to be neither sentenced to death nor executed. However, this Protocol cannot be ratified until the death penalty has been abolished in Belgian law.
157. The death penalty may be incurred by minors since, in accordance with article 38 of the Young Persons' Protection Act, minors over the age of 16 at the time of committing a crime may be referred to the Court of Assize and be liable to the death sentence. However, a death sentence or a sentence of life imprisonment in the case of a minor under the age of 16 is no more than a theoretical possibility.
158. It is also important to note that the European Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment entered into force in Belgium on 1 November 1991. That Convention set up a Committee which has the right to visit any place holding persons who have been deprived of their freedom by a public authority. The Committee may therefore visit both prisons holding young people under the age of 18 and establishments reserved for minors.
159. In the Flemish Community, the Decree of 22 May 1991 laying down criteria and standards for subsidies to institutions providing special assistance to young people provides that any penalty imposed on a minor must take personality factors into account and that no order can be given to inflict corporal punishment or withhold meals.
160. Article 203 of the Civil Code defines the father's and mother's role towards their children: fathers and mothers are bound to support and raise their children and to provide them with adequate training. The family is the basic institution of society and it should ensure the child's full development. Parents are directly responsible for the child's training, survival and socialization.
161. The parent-child relationship today is based less on authority than on a dialogue through which children prov