Siblings Have The Right to Grow up Together

‘Brothers and sisters’ is a new chapter that will be added to the (old) Civil Code on June 19, 2021. The chapter, which comprises 3 new legal requirements, was added to Book I, “Persons,” Title IX, “Parental authority and foster care.”

The new chapter covers actions done in relation to parental authority, foster care, and the placement of a minor non-emancipated kid in relation to youth help and youth protection.

Two explicit rights are granted to minor siblings under the new legislative provisions:

1. The right to grow up together in the same family without being separated from one another. Although it may seem clear, after a parent’s divorce or placement in a kid care facility, things frequently turn out differently;
2. The right to interact with one another in person at any age. Grandparents and anyone else who exhibits a special affective attachment with a child already have this right.

These rights originate from Article 8 of the European Convention on Human Rights (right to respect for private and family life).

Only when it is in the child’s best interest, which is determined for each individual kid, may exceptions to these rights be established. Maximum attempts should still be taken to maintain personal contact with the siblings even if it is in the child’s best interest to be separated from them, unless doing so is also not in the child’s best interest. In the best interests of all the siblings, a custom arrangement can be crafted in this way, if necessary. For instance, when a kid is admitted to a juvenile facility as a result of committing a juvenile offence, the legislation expressly makes an exception. It stands to reason that the offender’s siblings won’t be sent to an institution either.

The legal provisions apply to children who are reared together in the same family and who have formed a special affective tie with one another as a result of living together, not just siblings in the traditional sense of the word. In this manner, newly formed families are also considered. At first glance, the application seems to have a wide scope, but it should be noted that the Belgian law has no definition of the terms “brother” and “sister.” Therefore, it is debatable how broad the new law is. According to legal literature, a definition of a brother or sister is someone who shares at least one parent through descent or full adoption with the other person.

A number of other legal laws were also changed in order for the new rules to properly achieve their objective of enabling siblings to grow up together:

• Article 374, Section 2, Paragraph 4 of the Old Civil Code was modified to require the Family Court to consider all siblings’ living arrangements when determining where the children will live after their parents’ separation. If this is not possible, the Family Court must specify how the siblings will interact personally;
• Article 393, paragraph 2 of the Old Civil Code has been amended to state that the Justice of the Peace should, whenever possible, appoint the same guardian for each sibling, unless doing so would not be in the best interests of the child. If this is not practicable, the Justice of the Peace must specify how the siblings may interact personally.

The new law has significant symbolic significance. After all, six measures have already been put out in the past, although it is only now that the unique link between siblings is fully acknowledged generally and legally. The new legislation does not, however, include any penalties. Therefore, the topic of what occurs when siblings are still apart from one another and are unable to communicate with one another emerges. The earlier proposals aimed to give youngsters the ability to assert their newly acquired rights in court on their own. However, this would only result in a tiny improvement known as “litigious capacity,” which faced strong criticism and was ultimately excluded from the law’s final amendment.

As a result, in order for the new regulations to be effective, the field’s players will need to apply the law effectively.