Expertise – Monaco
Explore all expertise
Insights
Insights

CMS lawyers can provide future-facing advice for your business across a variety of specialisms and industries, worldwide.

Explore topics
Offices – Monaco
Explore all Offices
Global Reach
Global Reach

Apart from offering expert legal consultancy for local jurisdictions, CMS partners up with you to effectively navigate the complexities of global business and legal environments.

Explore our reach
Insights – Monaco
Explore all insights
Expertise
Insights
Insights

CMS lawyers can provide future-facing advice for your business across a variety of specialisms and industries, worldwide.

Explore topics
Offices
Global Reach
Global Reach

Apart from offering expert legal consultancy for local jurisdictions, CMS partners up with you to effectively navigate the complexities of global business and legal environments.

Explore our reach
CMS Monaco
Insights
Trending Topics
About CMS

Select your region

Publication 15 Oct 2024 · Monaco

The children's lawyer in Monaco

A crucial role in protecting the rights of minors

4 min read
Pink blue abstract wave_Header_925x290.jpg

On this page

The legal framework relating to the presence of a lawyer for minors in the Principality is still incomplete in many procedural points. However, it must be said that having a lawyer alongside children in family matters has helped them to escape from many of the family conflicts in which they have found themselves. 

The year 2017 marked a turning point. In civil matters, prior to Law no. 1.450 of 4 July, the appointment of a lawyer for the child was not subject to any legal framework in Monaco. A real gap. Children, a word derived from the Latin infans, meaning “who do not speak”, were considered to be vulnerable and in need of protection.

This is why, as early as 2006, Monegasque case law based itself on article 12 of the International Convention on the Rights of the Child of 20 December 1989*, considering that "in accordance with article 12 of the Convention of 20 November 1989, which is directly applicable, a child who is a minor and capable of forming his or her own views may intervene in the proceedings through a lawyer". 

It was not until 2017, with Law no. 1.450 on alternate residence, that the Monegasque legislator enshrined the right for children to be assisted by a lawyer, in civil matters, when they are heard by a judge. Article 303-6 of the Civil Code states: "When the child's capacity for discernment enables him or her to express his or her wishes, he or she has the right to be heard if he or she so requests. The child may be heard alone, with a lawyer or with a person of his or her choice "**.

Creation of the child's lawyer institution

This possibility has led to the creation of an institution: the child's lawyer. The child's lawyer is a legal professional who represents the interests of children in civil and criminal cases involving them. However, the legislator has not supplemented these provisions since 2017, so that the defence of the interests of minors in cases involving them has its legal basis only in the aforementioned article, which is limited to the assistance of the lawyer for the hearing of the minor.

The issue of appointing a lawyer therefore remains unresolved. For example, there is no provision specifying whether one of the parents may appoint a lawyer directly, without the consent of the other, or whether it is up to the court to do so and under what conditions. 

Monegasque judges, in particular the guardianship judge and the divorce judge, have therefore taken up the issue and have been keen to develop this practice by regularly appointing a lawyer for the child to ensure that the latter can benefit from a free and neutral forum. They drew on Monaco's international commitments under the United Nations Convention on the Rights of the Child of 20 March 1989, in particular articles 12 paragraph 2 and 13, which have direct effect. These authorise such an appointment to accompany or relay the child's views, which must be free, in legal proceedings involving the child. 

It is therefore mainly in divorce proceedings, non-divorce proceedings and educational assistance proceedings that children can benefit from a free and neutral forum via their lawyer.

For example, a minor has already been given the benefit of a lawyer in civil proceedings for the withdrawal of parental authority, highly contentious divorces and for the purpose of fixing/modifying custody arrangements for unmarried parents.

 

*Ratified by Monaco in 1993.
**It should be noted that the hearing of a minor, who does not have legal capacity, does not give him or her the status of civil party.