Asylum cases

Age requirements differ remarkably among Member States, but also within Member States across different areas of regulation (for instance, family, criminal and asylum law). However, in some countries, a minimum age requirement for the right to be heard does not preclude courts from asking for children’s opinions, regardless of their age.

FRA analysed the age requirements applied in seven areas. The data on adoption, placement, employment, asylum and immigration are shown in this web-publication.

For information on the age at which a child must be heard for judicial proceedings in divorce and custody, as well as in cases of violence, abuse or neglect (if the child so wishes), see our interactive data explorer.

View full dataset in data explorer.

Key aspects

Age requirements applied in judicial proceedings in the areas of adoption, placement, employment, asylum, immigration, divorce and custody, and violence, abuse or neglect:

• Some Member States (Austria, France, Latvia, Lithuania and Luxembourg) do not apply age requirements in any of these types of judicial proceedings. Enjoying the corresponding substantive rights (for instance, access to work), however, sometimes requires being over a certain age.
• In Cyprus and Ireland, children’s right to be heard is not expressly regulated for any of these types of judicial proceedings. In Malta, it is regulated only in two; and in Hungary, only in three of the seven types of proceedings.
• Children’s right to be heard is less often regulated in judicial proceedings related to employment, asylum, and immigration than in those related to adoption, placement, divorce and custody, and violence, abuse or neglect.
• However, a minimum age requirement for the right to be heard often does not prevent courts from asking for children’s opinions, regardless of their age. This is the case, for instance, in Germany, Italy, Portugal and Romania.

Judicial proceedings for international protection (asylum and subsidiary protection)

• Age requirements for the right to be heard do not affect age requirements regarding children’s right to make a relevant application on their own (see the interactive data explorer on asylum and migration).
• Children subject to judicial proceedings have the right to be heard regardless of their age in 11 Member States (Austria, Belgium, France, Greece, Latvia, Lithuania, Luxembourg, Portugal, Slovakia, Sweden and the United Kingdom), provided that they are allowed to apply for international protection on their own. However, courts do take into consideration children’s maturity and capacity to express themselves.
• No regulation applies in Cyprus, Denmark, Hungary, Ireland, Malta, Poland and Slovenia. It is therefore for courts to decide whether or not to hear a specific child.
• The age threshold for the right to be heard is six years in the Netherlands; 10 in Bulgaria, Estonia and Romania; 12 in the Czech Republic, Finland, Italy and Spain; and 18 in Croatia and Germany.

Legal background

Children’s right to be heard in judicial proceedings is enshrined in both the Convention on the Rights of the Child (CRC) and the EU Charter of Fundamental Rights. Article 12 (2) of the CRC stipulates that “the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law”. In Article 12 (1) children’s right to be heard is linked to their capacity to form their own views in accordance with their “age and maturity”. Article 24 of the Charter provides that the freely expressed views of children “shall be taken into consideration on matters which concern them in accordance with their age and maturity”.

In this framework, the Directive on procedural safeguards for children suspected or accused of crime aims to ensure that they have the right to be present at their trial, participate effectively in the trial, and have the opportunity to be heard and express their views (Article 16). A similar rule also applies for child victims of crime according to Article 10 of the Victims’ Rights Directive, in “due account” of the child’s age and maturity. Recital 42 of the directive underlines that a child victim’s age cannot be the sole basis for precluding the child’s right to be heard. The need to take into account the child’s views, needs and concerns is also mentioned in other sectoral directives, such as Directive 2011/93/EU on combating sexual abuse, sexual exploitation of children and child pornography (Article 19) or Directive 2011/93/EU on anti-trafficking (Article 14). In civil matters, Regulation Brussels II bis includes disrespect for children’s right to be heard among the grounds for non-recognition of judgments relating to parental responsibility (Article 23). Respect of children’s right to be heard is also a condition for the recognition and enforceability of other family law related judgments – for instance, concerning the rights of access to and return of a child (Articles 41 and 42).

However, EU legislation sets no explicit minimum age requirements for the right of children to be heard in judicial proceedings. It therefore lies within the competences of the Member States to lay down their own rules in this area. When exercising their powers, EU Member States are bound to respect the essence of children’s right to be heard, as provided for in the CRC and the EU Charter of Fundamental Rights, also taking into consideration that it constitutes a core dimension of access to justice.