Luxembourg

Luxembourg[1][print]

Last edited:  November 2005

Summary and Analysis

Luxembourg has a very well developed child protection system.  There is an extensive child court system, and several mechanisms for the removal of children when they are in danger of abuse or neglect.  One of the principal criticisms of the system (as noted in the discussion of “Youth in Distress”) is that it does not sufficiently differentiate between those youths who are classified as “juvenile delinquents,” and those who are the victims of abuse and thus in need of protection.  The same “youth courts” administer to both groups of young persons, and thus the protective measures for young persons in danger are often not well suited to the situation (e.g. children in danger may be placed in “correctional facilities,” although they will be kept away from the adult population). 

Luxembourg has made a concerted effort to enact the provisions of the Convention on the Rights of the Child into national law, especially the requirement of Article 12 that children’s voices be heard.  The law of November 12, 1971 relating to the protection of young persons was amended in 1992 to include language requiring that courts must hear from the children involved in matters before them, unless it is contrary to the interests of the child.  Many are critical of the fact that a minor can be taken from his family without the factors justifying removal being subject to debate or a judicial proceeding.  The sole method of addressing the charges is through a replevin.  However, overall the laws of Luxembourg incorporate the ideas of the CRC – children’s voices are heard, representation is required and the courts have wide discretion to protect children from abuse and/or neglect.

Sources of Law (In Order of Authority)

Statutes

Law of November 12, 1971 Relating to the Protection of Young Persons[2]

Article 1:  Parental rights can be taken, in all or partly, for one or both of the following reasons:

           First: the father or the mother is condemned to a correctional institution for harming a

person or using one of his or her children or descendants;

           Second: the father or the mother, by ill treatment, abuse of authority, notorious misconduct,

or serious negligence, puts in danger the health, safety or morality of his/her child.  It is the same for the father or the mother who has married a person without parental rights. 

Article 2:  An action affecting parental rights is brought by the public ministry in front of the civil court of the district of the residence of the father or the mother.  Except if it prevents the youth judge or his substitute from being part of the court called to know the action.  In the absence of a residence known within the country for the father or the mother, the action is carried out in front of the court of the district in which the children are present.  The court will determine the procedure to be followed. 

Article 3:  The total forfeiture relates to all of the rights given to parents.  It includes, with regard to the child whom it concerns and the descendants:

           First: the exclusion of custody and right to educate;

           Second: exclusion of the right to represent the child, or to manage their acts or goods;

           Third: exclusion of the right envisaged by article 384 of the civil code;

           Fourth: exclusion of the right to provide for the child;

           Fifth: Exclusion of the right to collect the whole or part of their succession per application

of article 746 of the civil code

In addition, the total forfeiture involves the general incapacity to be a tutor, semi-official tutor, surrogate guardian, member of a board of guardians, curator, or special council …

Article 4:  The court, by pronouncing the forfeiture, designates in the interest of the child the person who will replace the father and mother for the rights which the court has excluded, and in the obligations that are correlative.  If it does not find a person ready to replace the father and mother, it can entrust the child to a company or institution of charity or a state or private education institution.  However, when the interest of the minor is not opposed, the court will designate the mother to replace the father. 

Article 5:  The person designated by the court is the guardian of the child; there will not be nomination of a surrogate guardian.  If the child is entrusted to a company or an institution, the court will appoint among the members of this one guardian especially charged to represent the child.  The guardian represents only the child in all of the acts of civil life; its management is governed by the provisions of the civil code relating to supervision …

Article 6:   … The youth court will monitor the management of the guardian and child .  it can at any time modify the guardian nomination made in accordance with the provisions from Articles 4 and 5 or modified by itself.

Article 7:  As soon as the court intervenes, it can take such provisional measures that it considers useful for the protection of the child.

 …

Article 40:   … The court of youth can, if the interest of the minor requires it, order the minor to appear in the court, or with draw during the whole or part of the proceedings.  The court can constantly, during argument, withdraw to chambers with council to hear, on the case of the minor, the experts and witnesses, parents, tutors, or other people who have cared for the minor.  Only the lawyers of the parties have the right to attend the arguments in the chambers.  The court can, however, call the minor there when it considers it convenient.

Bill No. 2557/03 Relating to the Protection of Youth[3]

 …

Article 9:  youth judge can, without the assistance of the public ministry, take a provisional measure of custody with regard to any minor who, of his own initiative, requests its assistance, when this measurement is essential in the interest of the minor. It must re-examine the situation and at the latest and make a final decision within two weeks, after having heard or at least called the parents, tutor or other people having custody of the minor and on the report/ratio, even verbal, of a delegate to the protection of youth. The youth judge can take with the profit of the minor who requested his intervention one of measurements specified from the 1^st article. Its final decision is delivered to the parents, to tutor or to other people who have custody of the minor by the way of the clerk’s office, by letter registered with notice of receipt. It is likely of call of their share, in accordance with article 33.

 …

Article 18:  Art. 18 - The minor, his parents, tutor or other people who have custody can make choice of a council or ask to the barristers president that one be appointed to them from the office.

 …

Article 25:  In the exceptional circumstances of article 32, provisional measures of custody can be taken by the examining magistrate with regard to the minor. In the other cases, if there is urgency, the provisional measures of custody can be taken by the youth judge. In the event that the judge is not available, they are taken by the prosecutor of State. In all the cases where a provisional measure of custody is taken by the examining magistrate or the prosecutor of State, it is given by it on the field opinion to the youth judge which performs its functions consequently. The replevin of a provisional measure of custody taken under the terms of the present law can be requested in any event by the youth judge or from the magistrate charged with the room of call of youth if it were ruling against against a decision of the judge or court of youth or if it were formed an appeal in cassation. The request will be deposited at the clerk’s office of the jurisdiction called to rule. It will be ruled there in the three days of the deposit, the public ministry, the minor or his defender, the parents, tutor or other people who have the guard of the minor, heard in their oral explanations. The interested parties are informed by the clerk, of the place, day and hour of the appearance.

Law of August 10, 1992 Relating to the Protection of Young Persons[4]

Article 13:  The minors who are placed under the care of educational welfare are entrusted by the court or the judge of youth to agents of probation or to people working within an establishment or of an organization which brings assistance, or council to the children and their family.

 …

Article 18:  The minor, his parents, tutor or other people who have custody of him can make choice of counsel or request from the judge of youth that it provides one to them of office.

 …

Article 29:  The case of each minor is examined separately in the absence of any other minor, except in the event of confrontations. The court of youth must hear the minor capable of understanding, unless the interest of the minor is opposed to it. The court can, if the interest of the minor requires it, either exempt him from appearing with the parties, or to order him withdrawn during whole or part of the debates, or to carry out its hearing in chambers in the presence of only lawyers of the parties. The court can constantly, during debates, withdraw itself to chambers to hear, on the personality of the minor, the experts and the witnesses, the parents, tutor or other people who have custody of the minor. Only the lawyers of the parties have the right to attend the debates in room of the council. The court can however call the minor there when it considers it convenient.[5]

Local Contact Information

Danielle Nosbusch

L’avocat des enfants

54 av. De la Liberté, L-1930  Luxembourg

22-12-355-6322

Additional Resources and Links

Policy debate on the Current System of Assistance and Protection of Youth in Luxembourg Special Commission Report “Youth in Distress.”[6]

Motion 1:   … our current system, the fruit of an active and voluntarist policy designed and installed by successive governments and representatives of the social sphere, is conceived as well for the treatment of minors who  are abused or neglected by their families as for the treatment of delinquent minors; … in this context … the juvenile delinquency is very often the logical consequence of a bankruptcy of the authorities of socialization, so that to help and protect the minor and possibly his family, is as important as to apprehend the juvenile delinquent through standard punitive action and sanctions …

 …

 … the child is a subject of rights … this design must be reflected in the spirit and the letter of the normative acts applicable to childhood, youth, and protection …

 …

Motion 3:  The House of Commons – considering that an increasing number of young people feel the need to be away from their family environment; considering that a large number of young people are running away and find themselves in the streets; estimating that the young people in an event of crisis need a place to remain in order to keep distance from their problems; invite the government to create a crisis intervention center intended to accommodate minors wishing to leave the family temporarily; to adapt the legislation in order to regulate the reception of the minors at such a center.

 …

Motion 5:  The House of Commons, considering – the Convention on the rights of the Child, adopted by the General meeting of the United Nations on November 20, 1993; that Luxembourg ratified the aforementioned convention on December 20, 1993; invite the Government to make directly applicable the Convention on the rights of the child.

Discussion of the System of Protection of Youth in Luxembourg: Special Commission Report “Youth in Distress.”[7]

 … When the prevention [of abuse] proves to be insufficient, the law of August 10, 1992 relating to the protection of youth allows the court or the judge of youth to intervene by taking measurements of custody, education, and safeguarding which are essential.  It should be noted that our law regarding the protection of youth is contained entirely in the law of August 10, 1992.  this law determines the whole of the procedure applicable to the young minor victim of ill treatments or negligence in the family, the same as with the minor delinquent who is regarded as a minor in danger and which it endeavors to protect on the same basis as the child or the teenaged victim of abuse, violence, or deficiencies in the family.  The official intervention, indeed, is centered on the concept of “danger to the minor,” this danger which can be caused by either the social maladjustment expressed by the deviant behavior or delinquency of the minor, or by the risk which to him of ill treatment or negligence of which he is the victim …

 … In order to be able to fill its objective, namely to assist and protect children in distress or difficulty, the legislature amended an arsenal of measurements, both purely protective and measurements that are primarily sanctions.  According to the circumstances, the court or the judge of youth can reprimand the child while interacting with the people who have custody to better supervise them or subject them to educational welfare.  It can also order more serious measurements which consists of placement of the minor with a person worthy of confidence or in an adapted establishment, even a disciplinary establishment of the state …

 … In cases of emergency, provisional measures can be taken in connection with the minor, in particular a measurement of provisional custody can be ordered without the minor and/or his parents being heard …

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