Supreme Court, C.C. v A.P., Nr. C.21.0470.F, 26 January 2024
Does Article 3.1 of the UN Convention on the Rights of Children (‘CRC’) have direct effect? This issue was at the heart of the judgment of the Supreme Court of 26 January 2024. In a short judgment, the Court answered that question in the negative and quashed the decision of the Court of Appeal of Liège.
The case concerned two (divorced) parents who were in dispute over their child’s housing and education. In support of his application, A.P. (the defendant party), had produced certain documents taken from the child’s youth case file. Although this contravened Article 27, §5 of the Code on Prevention, Youth Support and Youth Protection, the Court of Appeal had nevertheless admitted these documents to the procedure, as it considered that ‘[a] child’s life forms a whole, even if, from a legal or psychosocial level, different authorities are each responsible to deal with a part of its existence’. It based its reasoning on Art. 3.1 CRC, which stipulates that all decisions concerning children must be taken in their best interests. As it considered it in the best interests to have of as much information as possible, the Court of Appeal gave precedence to Article 3.1 over the aforementioned provision of domestic law.
In its judgment, the Supreme Court recalls that, for an international norm to have direct effect, two conditions must be fulfilled: the norm must be (i) sufficiently precise and (ii) complete. Article 3.1 CRC, however, does not fulfil these conditions, as it leaves the State with several options for meeting the requirements of the child’s best interests. The Court did not provide any further explanation, but has spoken out on this matter in other judgments (Cass., 2 March 2012, C.10.0685.F, Pas., 2012, n° 145 ; Cass., 4 November 1999, C.99.0048.N, Pas., 1999, n° 588, et Cass., 4 November 1999, C.99.0111.N.). In the end, the Court concluded that Article 3.1 CRC cannot serve as a source of subjective rights or obligations for individuals, and cannot override domestic law.