Facts
The plaintiff criticizes the failure to hear her seven- and nine-year-old daughters in the divorce proceedings and claims a violation of Art. 144 para. 2 CC and Art. 12 of the UN Convention on the Rights of the Child. The High Court had rejected the hearing of the children, as it assumed that the children were in a conflict of loyalty and that the hearing would be a burden for them.
The Federal Court notes that according to Art. 144 para. 2 CC, children must generally be heard once they have reached the age of six, unless their age or other important reasons speak against it. The High Court has violated this provision by refusing to hear the seven- and nine-year-old children without the existence of such exceptional reasons.
While children in divorce situations may be in a conflict of loyalty, which can be a burden, this must not lead to systematically avoiding the hearing. Only if an actual impairment of the child's physical or mental health is to be feared can the hearing be exceptionally waived. Such indications…