The right to self-determination of a 12-year-old
THE RIGHT TO SELF-DETERMINATION OF A 12-YEAR-OLD: deciding on medical treatment but not who you can live with after a divorce?
By means of Nynke van der Storm
If parents are divorced, have joint custody of their child and cannot agree on an important issue concerning their child, they can ask the court to “cut the knot” (Article 1: 253a BW). The disputes between the parents can, for example, relate to the choice of school or the main residence. Also, if the other parent does not give permission for medical treatment of the child, a parent can ask the court to grant substitute permission for the treatment.
In the event of a divorce, children aged 12 or older are asked by the judge to give their opinion on who they would like to live with. This “right to be heard” of the child is enshrined in law. If the judge has to decide on the child’s primary residence, he will take the child’s opinion into account in the balancing of interests, but this is not of decisive importance. The final decision of the court may therefore deviate from the child’s wishes.
Striking in this, are two recent rulings of the Amsterdam District Court (summary proceedings) and the North Holland District Court of 15 May 2017. In both cases, the parents did not agree on whether or not to perform medical treatment on their child. The children (12 and 11(!) years old respectively) were followed by the judge in their wish;
- no further (chemo) treatment after surgery and radiotherapy of a brain tumor; and
- the performance of an operation aimed at reducing growth.
The judgment of the North Holland District Court was upheld on appeal (Amsterdam Court of Appeal of 11 July 2017).
For the execution of medical treatment of a child of 12 years or older, the consent of the child is required and -in principle- the consent of the parents with parental authority. The child has the right to refuse his consent. In addition, if the child continues to want the operation, the treatment can be carried out without the consent of the parents. An exception can therefore be made to the legal principle that the child and the parents must give consent for medical treatment (Article 7:450 paragraph 2 of the Medical Treatment Agreement Act). If the minor and his/her parent differ in opinion, the wish of the minor is leading.
Recent rulings suggest that the right of a child in cases concerning medical treatment extends further than the right to be heard in cases concerning the child's primary residence. The voice of a child aged 12 or older is then one of great weight. Even when it concerns a life-threatening situation.
This is special. A child can start at the age of 12and year of life decide about life or death. On the other hand, a child of the same age is not free to choose where he wants to have his primary residence after the divorce of his parents.
