The defence of minor's interests in the proceedings

The role of a minor in civil proceedings is now recognised at both national and international level.

By way of illustration, a minor who is capable of discernment may be heard in the context of divorce or separation proceedings between their parents.

They may be heard at their own request or at the initiative of the judge. The judge cannot refuse if the minor requests to be heard.

The hearing of the minor may be carried out by the judge or by a delegated person, if the interests of the child require so.

The child may be accompanied by a lawyer or any person of their choice.

In the event of conflicting interests with the child's legal representatives in a procedure, an ad hoc administrator may be appointed by the judge to defend the child's interests.

1.    The appointment of the ad hoc administrator

An ad hoc administrator may be appointed when, due to conflicting interests, the minor's legal representatives are unable to fulfil their mission by exercising the rights of the minor on their behalf.

This representation is possible even if the administration of the minor's property is not at issue.

It strengthens the child's participation in the judicial debate.

Requirements: the appointment of an ad hoc administrator is neither automatic nor mandatory for the judge. It is only introduced when the minor's interests appear to be in conflict with those of their legal representatives.

Opposition of interests implies the existence of contradictory or at least divergent interests between the minor and their legal representative. It is up to the court of first instance to assess the situation.

Furthermore, the conflicting interests must be serious and plausible.

Finally, the existence of merely distinct interests is, except specific circumstances, considered insufficient.

2.    The appointment of the ad hoc administrator in parental disputes

In a recent case in which the father requested the appointment of an ad hoc administrator, so that a third party could intervene and validly represent the child's interests, the Monegasque judge considered that even if the parents maintain conflicting relations, they are both motivated by good intentions with regards to their child, and that they are each developing a well-founded defence with discernment, and that no interests in opposition to those of their child are apparent.

Therefore, these elements do not characterise a conflict of interest between the parents which could justify the appointment of an ad hoc administrator.

On the other hand, a lawyer was appointed to the proceedings in order to allow the child to be accompanied and to relay their views while maintaining the confidentiality of their comments.

This recent decision, along with others, is the first step towards the appointment of the child's lawyer by the judge in Monegasque law.