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Abstract
This contribution addresses the topic of cultural diversity in family justice and examines it in the specific context of Belgian family justice through a case study of the Mobembo family. This case, about a Belgo-Congolese family struggling for the recognition of the grandparents' right to personal relationships with their grandchildren, was chosen among many observed in the course of fieldwork because it mobilises a cultural argument at the core of the demand and conflates it with the assessment of the ‘best interests of the child’ (BIC). It thus provides a representative illustration of how flexible and general norms as the BIC can lead (or not) to a greater openness of judicial systems to culturally different practices and experiences. In analysing how the judge apprehends this case, we will see how potential receptiveness of the Belgian judiciary to cultural diversity can be restrained in fact by the ‘euro-centric’ conception of the judge. The case will also be examined through the lens of fundamental rights in order to formulate some suggestions, before opening perspectives on hosting cultural diversity on the bench.
Acknowledgements
I am very grateful to Ellen Desmet and Giselle Corradi for their kind support and their valuable attention.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes
1. In order to respect and protect the anonymity of the judge and parties, all the names, as well as the location and exact dates of the case, have been changed.
2. The outcomes discussed here are the preliminary results of PhD research in progress, which will be completed by further processing of the data collected and by additional fieldwork.
3. In order to delineate the fieldwork within the numerous and diverse parts of the Belgian family justice system, after an exploratory phase of four months, I decided to confine my initial research fields to two types of hearing in civilian family justice, as opposed to ‘penal’ or ‘protective’ juvenile justice.
4. This jurisdiction has now been transferred to the new ‘Family Court’ (Tribunal de la Famille) that was established as a new section of the Courts of First Instance by the law of 30 July 2013, which entered into force on 1 September 2014.
5. Sixteen court sessions – totalling 59 court cases – were observed in three different Justice of the Peace Courts in Brussels, and 31 court sessions – totalling 280 court cases – were observed in 5 different civil chambers of the Juvenile Court, also in Brussels. I then organised these data into two different corpuses: one with the reports of hearings, and another with several case studies fully reconstructed from the observations and the court files (23 cases from the Justice of the Peace Courts and 30 cases from the Juvenile Court).
6. That is to say, migrants from third states to the European Union, migrants from states that are on the road to EU accession and also migrants from states that joined the EU after 1997: Cyprus (2004), Estonia (2004), Hungary (2004), Latvia (2004), Lithuania (2004), Malta (2004), Poland (2004), the Czech Republic (2004), Slovakia (2004), Slovenia (2004), Bulgaria (2007) and Romania (2007).
7. Expressions of cultural diversity emerging from my fieldwork were organised through an inductive approach into four categories. I will summarise them very briefly here, as it is not the aim of this contribution to go into the details of my doctoral research: (1) red-handed diversity, as exposed above; (2) diversity as formality, that is, cultural diversity unfolded in its practical or formal aspects. This includes, for instance (from my data), the presence of an interpreter, the behaviour of the litigants, communication and language between the different parties in the course of litigation; (3) diversity as discourse, as there are many cases where the issue of cultural diversity is implicitly present or tacitly called upon to explain a fact or conduct. It is mainly about subtle, informal and diffuse expressions that can be found as much in the speech of the litigants or counsel as in the discourse of the judges and prosecutors or even in court records. It is very useful here to call upon Foucault's thought, which highlights the importance of specific discursive formations referring to arguments, interpretation and justification; (4) diversity as an administrative status, which is a decisive issue that falls outside ‘cultural diversity’ as such, but is of great importance for families with a migrant background embedded in the family justice process: the legality of their presence in Belgium. In theory, this administrative dimension should not intervene in civil family justice as it is a matter governed by immigration law. But we can see that this issue is in fact pervasive and constitutes a real concern not only for the litigants, but often for the judges themselves.
8. Article 3.1 of the United Nations Convention on the Rights of the Child states: ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’. The Convention was ratified by Belgium in 1991. An in-depth analysis of this Article and the drafting of the Convention can be found in Alston (Alston Citation1994) and Parker (Parker Citation1994).
9. For example, the European Convention on the Exercise of Children's Rights (1996); the Convention on Contact concerning Children (2003); the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (2007); the European Convention on the Adoption of Children (2008).
10. My emphasis; my translation.
11. Belgian law of 13 April 1995 on the joint exercise of parental authority, published on 24 May 1995.
12. My translation.
13. This emerges from my fieldwork in two other cases I observed about the grandparents’ right to personal relationships, but also from an overview of Belgian jurisprudence. See, for instance, judgements of Belgian Juvenile Courts (‘Tribunal de la jeunesse de Mons, 25/10/2001’, Citation2002; Hiernaux, Citation2013) and of Belgian Courts of Appeal (‘Cour d'appel de Mons (ch. Jeun.), 08/06/2011’, Citation2011; ‘Cour d'appel de Bruxelles (31e ch.), 01/02/2012’, Citation2013). This last judgement even points out that ‘accounts about the origin of the conflict are diverging and it is not up to the Court to sort out fact from fiction’ (my translation).
14. My emphasis.
15. My emphasis.