The substantive and procedural legal (in)capacity of minors: Compatibility with the International Convention on the Rights of the Child (R-12248)

To date, minors are, in principle, legally incapable. Consequently, they cannot make any decision without being represented by their parents. However, there are exceptions to this principle, leading to a fragmentary approach of the substantive (in)capacity. Minors are also procedurally incapable and therefore they cannot become a party to a procedure that concerns them. They can only, under certain conditions, be heard by the judge in a limited number of family cases and are not necessarily involved by the redaction of agreements that concern them. The aforementioned raises the question of whether Belgian law is compatible with Article 12 CRC. This research aims to answer the following question: "Is the Belgian law concerning the substantive and procedural legal capacity of the minor in accordance with the Convention on the Rights of the Child, and, if not, how could a new legal framework for the substantive and procedural legal capacity for minors, that is in accordance with the Convention on the Rights of the Child, be incorporated into Belgian law? I start with a description of the international legal framework, including an examination of the child's image set out in the CRC and how national legislators should implement it in their law. Next, I will describe and analyse Belgian's legal framework concerning the substantive and procedural (in)capacity. Subsequently, Belgian's legal framework will be evaluated in the light of the CRC. This will uncover the shortcomings of the Belgian law. Furthermore, I will conduct a comparative law study, aiming to learn from other legal systems how the legal framework can be adapted to implement the CRC and what measures can be undertaken to execute the legal framework in a way that is in accordance with the CRC. I will submit these solutions to Belgium's law practitioners and other stakeholders involved, for instance, the children's rights commissioner, to make sure they are feasible in practice in Belgium. Finally, I will formulate a set of recommendations to adapt the legal framework and its execution in practice to bring Belgian law in accordance with the CRC.

Keywords:Civil Law, CRC, Family Law, Minors

Disciplines:Family law, Human rights law