THE CORRECT BALANCE

The correct balance between dispensing dispassionate justice to parents and safeguarding children from actual or likely significant harm

The correct balance between dispensing dispassionate justice to parents and safeguarding children from actual or likely significant harm

Introduction

One of the fundamental rights of every individual, protected by the Convention for the Protection of Human Rights is to be tried by an impartial tribunal (Article 6). It is this principle which precludes the judge who conducted investigations against a litigant can then be a member of the bench. asked to rule on guilt and punishment against the same person. For example, in our French law, a judge instructed that against an indicted can not then be part of the criminal court judge.

The objective of this essential rule is to ensure that the judge did that at no time previously taken a position, directly or indirectly, on the charges could be brought against the defendant. For minors, a debate has started a few years around the issue of impartiality. Indeed, it is common for files without complexity, a criminal case be opened in the juvenile court, as it does some investigation and that the minor be referred to the juvenile court presided over by the same magistrate.

The European Court of Human Rights has made an interesting precision in a judgment dated March 2, 2010 following an application by a litigant Polish pursued as a minor. In its decision the court "recalls that the principle of impartiality is an important element of confidence which the courts must inspire in a democratic society. This principle is usually defined by the absence of prejudice or bias and can be tested in various ways. " It then states that "impartiality within the meaning of Article 6 § 1 must be considered in a twofold approach: the first is to try to determine the personal conviction of a particular judge in a given, the second in s' ensure that it offered guarantees sufficient to exclude any legitimate doubt in this regard. "

It states that "the mere fact that a judge, for taking decisions before the trial can not in itself justifying fears with respect to impartiality. What matters is the extent of measures taken by the judge before the trial. Similarly, the knowledge of the case by the judge does not prevent a bias to consider it as impartial when the judgment on the merits. " Turning to the circumstances of the case before him, the ECHR found that "the order made after the preliminary investigation and that the family court judge referred the applicant to the juvenile court was based on the finding of the magistrate that "the evidence gathered during the investigation indicated that the applicant was perpetrator." Given the content of this ordinance, it is clear that the issue that this judge had ruled before the opening of the judicial phase of the procedure largely coincided with the one he then had to decide as a member of the bench of the Juvenile ...