1. Relevant facts and summary statements of parties and related persons.
(1) Relevant facts.
1. Petitioner X and Italian Y (related person) had a daughter, Z, in Taiwan on February 4, 2014. Both parties jointly exercise or assume parental rights and duties over Z. X agrees that Y may take Z to Italy from December 20, 2017, to January 10, 2018. However, prior to that, on December 12, 2017, Y took Z to Italy. On the same day, X also applied to the Taipei District Court of Taiwan (from now on referred to as the Taipei District Court) to rule that the exercise or burden of rights and duties over Z shall be given to X alone (accepted by the same court in 107- Chia Chin-Sheng-212 [2018]). On January 3, 2018, X applied to the Taipei District Court for a preliminary injunction to prohibit Y from taking Z out of the country and to hand Z to X. In the application mentioned above for a preliminary injunction, the Taipei District Court Civil Ruling 107-Chia-Chuan-2 (2018) prohibited Y from taking Z out or sending Z out of the country without X's consent before the application regarding the change of parental rights and duties was withdrawn, settled, or finally decided upon. The remaining applications of X were rejected. Y filed an appeal against the unfavorable part of the preliminary injunction ruling, and the appeal was dismissed by the Taipei District Court Civil Ruling 107- Chia-Sheng-Kang-17 (2018), Y re-appealed, the Supreme Court Civil Ruling 107 -Tai-Chian-Kang-289 (2018) reversed the second-instance ruling and remanded it to the Taipei District Court for a further ruling, and the Taipei District Court Civil Ruling 108-Chia-Sheng-Kang-Geng-I-1 (2019) reversed the first-instance ruling (107- Chia-Cyuan-2 [2018]), and instead rejected X's applications in the first instance, X was not satisfied with the ruling and re-appealed, and the re-appeal was dismissed by the final and binding ruling of the Supreme Court Civil Ruling 109-Tai-Chien-Kang-82 (2020).
2. On March 19, 2019, Y also applied to the Taipei District Court for a preliminary injunction (the underlying cause of this petition for constitutional review) for the above application to change the exercise and assumption of parental rights and duties over Z. The Taipei District Court issued a Civil Ruling 108-Chia-Chan-46 (2019) (from now on referred to as "Disputed Ruling 1") on October 31, 2019: "(A) X shall hand over the minor child Z to Y. (B) Before the first instance ruling 107-Chia-Chin-Sheng-212 (2018) of the Taipei District Court changing parental rights and duties, Y could bring his minor child Z out of the country to live with him in Italy. (C) After handing over the minor child Z to Y, X may live with the child in Taiwan for two weeks every six months during the child's stay in Italy; the date shall be determined by agreement of the two parties; both parties shall each bear one half of the cost of the child's flight ticket. (D) When the minor child Z lives in Italy, X may contact the child by letter, communication software, or telephone without affecting the child's daily routine. (E) The remaining applications are rejected." X filed an appeal against this ruling, which was dismissed by the Taipei District Court Civil Ruling 108-Chia-Sheng-Kang-122 (2019) on October 27, 2021 (from now on referred to as “Disputed Ruling 2”). On February 23, 2022, X re-appealed, and the re-appeal was overruled by the final and binding ruling of the Supreme Court Civil Ruling 111 Tai-Chian-Kang-13 (2022) (from now on referred to as “Disputed Ruling 3” which is a final and binding ruling).
3. X re-applied to the Taipei District Court for a preliminary injunction to prohibit Y from taking or making a third party take the minor child Z out of the country without the consent of X. The above application was dismissed by the Taipei District Court Civil Ruling 110-Chia-Chan-164 (from now on referred to as “Disputed Ruling4”). X filed an appeal against Disputed Ruling 4, which was dismissed by the Taipei District Court Civil Ruling 110-Chia-Sheng-Kang-86 (2021) (from now on referred to as “Disputed Ruling 5”). X re-appealed Disputed Ruling 5. The re-appeal was dismissed by the final and binding ruling of the Supreme Court Civil Ruling 111-Tai-Chian-Kang-32 (2022) (from now on referred to as “Disputed Ruling 6”).
4. Regarding the case of change of the exercise and assumption of the parental rights and duties, which is not within the scope of this constitutional review, X applied to the Taipei District Court on December 12, 2017, to rule that the exercise and assumption of parental rights and duties shall be given to X alone. Later, on April 16, 2020, she changed the application to rule that the exercise and assumption of parental rights and duties over Z shall jointly be given to X and Y in Taiwan; Y filed a counterapplication to the Taipei District Court on February 1, 2018, to rule that the exercise and assumption of parental rights and duties over the minor child Z shall be given to Y alone. The Taipei District Court, following a consolidated review, issued a Civil Ruling 107-Chia-Chin-Sheng-212 (2018) on January 6, 2022: "(A) The exercise and assumption of parental rights and duties over the minor child Z shall be given to Y alone; (B) X's application is rejected; (C) The application fee and counterapplication fee (including the remuneration of the Guardian ad litem) shall be paid by X." X appealed this ruling. The immediate superior court is currently hearing it.
2. The gist of the statements made by the petitioner and the related person.
(1) The gist of the petitioner's statement.
Disputed Ruling 1 cited the 1980 Hague Convention on the Civil Aspects of International Child Abduction (from now on referred to as the "International Child Abduction Convention") and the 1996 Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children as jurisprudence applied to our country's adjudication, which violates the constitutional principle of separation of powers. In cases of changing the exercise and assumption of parental rights and duties over minor children, the principle of the best interests of the child shall prevail over the principle of unfriendly parents, and the principle of the best interests of the children shall first attach importance to the views of the child. However, the judge did not inform the minor child of the impact of the result of the judgment in the procedures carried out in Disputed Rulings 1 to 6 so that the child had the opportunity to express his or her views or state his or her opinions and made a ruling without investigating the living conditions of Z in Italy. This violated the due process of law in the Constitution, violated the petitioner's parental rights to meet and contact, and violated the purpose of the Constitution to protect the best interests of minor children and the protection of litigation rights, and is therefore unconstitutional.
(2) The gist of related person Y's statement.
Disputed Ruling 3 has allowed the minor child to express his or her views and state his or her opinions, and whether the views of the minor child are highly related to loyalty issues or even have been alienated is something that the court shall cautiously evaluate based on the best interests of the minor child. Disputed Ruling 3 has made a comprehensive judgment based on the minor child's best interests. The applicable Family Act (from now on referred to as the Family Act) does not stipulate any provision for the minor child to express his or her opinions in the preliminary injunction. It only considers the urgency of the preliminary injunction and significant public interests, such as the protection of minor children. The same Act stipulates provisions [for the minor child] to express opinions in the appeal procedure. The Rules for Trial of Family Matters also protect minor children's expression rights. Therefore, Disputed Ruling 3 and the applicable Family Act do not violate Articles 3 and 9 of the Convention on the Rights of the Child, Article 108 of the Family Act, Article 107 of the Rules for Trial of Family Matters, and Article 156 of the Constitution. Furthermore, General Comment No. 5 of the Convention on the Rights of the Child lists other primary international human rights instruments that treaty countries are encouraged to ratify, including the International Child Abduction Convention. Therefore, the International Child Abduction Convention shall be used as jurisprudence for our courts to deal with related issues.
3. Review of admission requirements.
(1) The final decision stipulated in Article 59, Paragraph 1 of the Constitutional Court Procedure Act, including judgments on the merits of this case and not on the merits of this case.
Article 59, Paragraph 1 of the Constitutional Court Procedure Act (from now on referred to as the Constitutional Court Procedure Act) expressly stipulates that after exhaustion of all ordinary judicial remedies, any person who believes that a final court decision that finds against him/her or a legal provision applied in such a court decision contravenes the Constitution may lodge a petition with the Constitutional Court for a judgment declaring the decision or the impugned legal provision unconstitutional. According to the civil judgment of the court, there is a difference between the judgment in this case on the merits of the matters claimed by the parties and the rulings in this case and the rulings on procedural matters other than the preceding matters (the decision or ruling not on the merits of this case). However, in any case, it results from the court applying abstract legal norms (substantive or procedural law). The result of the judgment pronounced by the court is the concretization of the law applicable to a particular case, and that is the so-called meaning "rights are the subjectivized laws, and laws are the objectified rights." The judgment on the merits of this case is a judgment that directly pronounces the specific rights and obligations or legal effects that the parties or related persons shall assume; even if it is not a judgment on the merits of this case, it also pronounces that the parties or related persons shall assume specific rights and obligations or legal effects, or rules only on the procedural matters of the case. Still, in any case, specific legal effects or impacts will occur on the substantive or procedural rights and interests of the parties or related persons. Such judgments that make the parties or related persons assume specific rights and obligations or legal effects or affect the procedural rights and interests of the parties or related persons; if it is a final judgment, it shall pronounce the specific law that applies to the judgment, it does not matter whether it is a judgment on the merits of this case or not. Whether or not this violates the Constitution shall be subject to constitutional review. The final judgment referred to in Article 59, Paragraph 1 of the Constitutional Court Procedure Act is not limited to a judgment on the merits of this case; even if it is a ruling not on the merits of this case, it also qualifies as a final judgment for which all ordinary judicial remedies have been exhausted.
(2) Preliminary injunction rulings under the Family Act shall be the object of a constitutional review judgment if all ordinary judicial remedies have been exhausted.
According to Article 85, Paragraphs 1 and 3 of the Family Act, and Article 7 of the Regulations on Types and Methods of Preliminary Injunctions on Family Non-litigation Matters promulgated by the Judicial Yuan under Paragraph 5 of the same article [Article 85 Family Act], the court may concerning the exercise of parental rights and duties over minor children issue preliminary injunctions to maintain a temporary status quo concerning the legal relation in dispute, including preliminary injunctions (provisional attachment、provisional injunction) for the preservation of family monetary claims, future compulsory enforcement of specific objects, and where necessary for purposes of preventing material harm or imminent danger or other similar circumstances. These rulings on preliminary injunctions impact the rights and interests of the parties or related persons in family non-litigation matters. They are judgments referred to in Article 59, Paragraph 1 of the Constitutional Court Procedure Act. In addition, once the court makes the ruling of a preliminary injunction, the trial procedure will be terminated on the matter of the ruling. Since related persons whose rights are violated due to the unsatisfactory ruling can only appeal (see Article 91 and Article 92 of the Family Act), it is a final and binding ruling. If this kind of preliminary injunction ruling is final and all ordinary judicial remedies have been exhausted, it may be the object of a constitutional review judgment.
(3) Constitutional review of the judgment of Disputed Ruling 3 is admissible.
1. Disputed Ruling 3 is a final and binding ruling
The petitioner filed an appeal against Disputed Ruling 1, and the meritless appeal was dismissed by Disputed Ruling 2; the petitioner re-appealed against Disputed Ruling 2, and the meritless re-appeal was dismissed by Disputed Ruling 3; therefore, Disputed Ruling 3 shall be the final and binding ruling. Disputed Ruling 3 is the final and binding ruling on the preliminary injunction for the handover of the minor child, and according to the above (1), it meets the requirements of a final and binding decision referred to in Article 59, Paragraph 1 of the Constitutional Court Procedure Act.
2. Constitutional review of the judgment of Disputed Ruling 3 is admissible.
Article 61, Paragraph 1 of the Constitutional Court Procedure Act stipulates that people's petitions for constitutional review judgments are admissible insofar as they concern principles of constitutional significance or it is necessary to satisfy the petitioners' fundamental rights protected under the Constitution. Disputed Ruling 3 involves how the court decides the best interests of minor children under the constitutional provisions on the country's protection obligations for children when the court issues a preliminary injunction for the handover of minor children in a cross-board parents case and whether the minor children shall be allowed to express their views during this procedure, which is in line with the requirements of due process under the Constitution and other fundamental rights. In addition, these issues may reoccur in future cases and cannot be directly answered from the text of the Constitution. Therefore, it is necessary to clarify and thus of constitutional importance. Furthermore, in the procedure of the court's decision or change of the exercise or assumption of parents' rights and duties for minor children, or the procedure of the preliminary injunction procedure for the handover of children, an application by one of the parents is not necessary (see Article 1069-1 of the Civil Code applying mutatis mutandis Article 1055 of the Civil Code). However, once the application is initiated, the parents and the minor children become the substantive parties to the procedure (see Article 97 of the Family Act applying mutatis mutandis Article 10 of the Act Governing Non-Litigation Cases). Where one of the parents applies for constitutional review of the final and binding ruling, the minor child's fundamental rights protected by the Constitution are also within the scope of the review. This application for a constitutional review judgment involves not only the applicant's parental rights and duties protected under the Constitution but also the fundamental rights of personality and human dignity of minor child Z protected under the Constitution.
Therefore, the application for constitutional review of Disputed Ruling 3 complies with Article 59, Paragraph 1, and Article 61, Paragraph 1 of the Constitutional Court Procedure Act, and shall be accepted.
(4)The application for constitutional review of Disputed Ruling 6 is not admissible
The petitioner also applied for a declaration that Disputed Rulings 4, 5, and 6 were unconstitutional. The petitioner filed an appeal against Disputed Ruling 4, and the meritless appeal was dismissed by Disputed Ruling 5; the petitioner re-appealed against Disputed Ruling 5, and the meritless re-appeal was dismissed by Disputed Ruling 6. Therefore, Disputed Ruling 6 shall be the final and binding ruling. After reviewing Disputed Ruling 6, the court dismissed the applicant's application for a preliminary injunction, which has no impact on the rights and obligations of the petitioner or related persons. According to Article 15, Paragraph 2, Subparagraph 7 of the Constitutional Court Procedure Act, it is not admissible.
3. Legal opinion on HOLDING 1
(1) The judgment of Disputed Ruling 3 regarding the best interests of minor children conflicts with the Constitution's purpose to protect minor children's personality rights and human dignity.
1. Judgment of Disputed Ruling 3
Disputed Ruling 3 ruled that: "the lower court held that Z was under the jointly parental rights and duties for the minor children of the two parties by agreement, and X had previously agreed that Y would return to Italy with Z from December 20, 2017, to January 10, 2018, nevertheless, prior to that, Y brought Z out of the country on December 12, 2017, it is difficult to have any illegal considerations. The two parties agreed that January 10, 2018, would be the return date to Taiwan. However, prior to that, on January 3, 2018, X applied to the Taipei District Court for a preliminary injunction (Civil Ruling 107-Chia-Chuan-2 [2018]), violating their agreement's terms. Even though Y and Z remained in Italy after January 10, 2018, the two parties still communicated. To bring Z back to Taiwan, X took advantage of Y's good faith cooperation to give the chance to visit Z in Italy; stating the reason that Z's passport had been lost, X applied for re-issuance to the Taiwan Representative Office in Italy, and then brought him/her back to Taiwan on January 20, 2019, which shall not be encouraged. The court considered that Z could adapt well in Italy and Taiwan, the parent-child relationship between the two parties and Z and the family support system is good, there are contact reports and photos issued by Italian psychologists, and Z has lived in Italy for one year, adapted well, Italy has already become his new habitual residence, and the two parties have different opinions on the ways to exercise parental rights and duties, the confrontation is serious, X has resorted to public media during the pending trial and publicly broadcast a video about Z on social group media, wherefore it is indeed urgent and necessary to issue a preliminary injunction. Therefore, [the immediate superior court] upheld the preliminary injunction made in the Taipei District Court and dismissed the appeal of X. After review, there are no manifest errors in applying the law.".
2. Division of work between the Constitutional Court and courts at all levels.
The courts' duty at all levels and their appellate remedies is to interpret and apply laws, including the determination of facts and subsumption of requirements and whether they are correct. The Constitutional Court shall not review it in principle. The Constitutional Court may review the interpretation and application of the laws only if it violates the Constitution. How to judge whether it is unconstitutional is [a question for which it is] difficult to have a crystal-like transparent criterion. The Constitutional Court is allowed to have a certain degree of discretion to meet the needs of the particular circumstances of individual cases. However, generally speaking, when the interpretation or application of the law made by the courts at all levels is due to an essentially erroneous understanding of fundamental rights, and this erroneousness will substantially affect the judgment of a specific case, or when interpreting and applying the law in a particular case, mainly when it involves the application of general clauses (Clausula generalis), if there are essential matters that shall be considered, such as fundamental rights, which are not considered, or [the courts] fail to identify the conflicts of fundamental rights involved, or there shall be a balancing between the rights but no balancing, or there is an obvious error in the balancing between the rights, it may be deemed unconstitutional. In principle, the courts at all levels must direct the litigation procedures. Still, if it violates the requirement of due process of law under the Constitution, it shall also be subject to constitutional review.
3. Safeguarding the best interests of minor children is an essential significance of the constitutional protection of minor children's personality rights and human dignity.
Personality rights are necessary to preserve individual subjectivity and the free development of personality. They are also closely related to preserving human dignity and shall be protected by Article 22 of the Constitution. To protect the physical and mental health and sound growth of personality of children and juveniles, the State has a specific duty of protection (refer to Article 156 of the Constitution) and must take necessary measures based on the best interests of children and juveniles, following the family's protection and upbringing of children, social and economic progress, which is in line with the requirements of the Constitution to protect the personality rights of children and juveniles (see J.Y. Interpretation No. 664 and 689 for reference). Safeguarding the best interests of minor children is essential to the constitutional protection of minor children's personality rights and human dignity. In all matters involving minor children, because minor children are the subjects who bear the results of the judgment, the court shall prioritize the minor children's best interests regardless of the court's procedures or the outcome of the judgments. In addition, the parental relationship between parents and minor children is also guaranteed by the Constitution, and preserving the parental relationship between parents and minor children is, in principle, in line with the principle of the best interests of minor children.
4. In deciding the best interests of minor children, all favorable and unfavorable factors shall be considered.
When the court decides on the exercise and assumption of parental rights and duties over minor children, it shall consider all the circumstances per the children's best interests principle. In addition to referring to the contact reports of social workers, it shall pay special attention to the age, gender, number of persons, and health condition of the child; the willingness of the child and the need for personality development; the age, occupation, character, health condition, economic ability and the lifestyle of the parents; the parent's willingness and attitude of protecting and educating the child; the emotional feelings between the parents and the child or between the other persons living together and the minor child; whether one parent takes actions to hinder the other from exercising rights and assuming duties over the child (see Article 1055-1 of the Civil Code). The so-called "best interests of minor children" is an uncertain legal concept with no clear, specific, or fixed judgment criteria. The court shall first find out all the favorable or unfavorable factors that affect the minor children in some instances (such as the rule of respect for the views of the child, the tender years doctrine, the approximation rule, the rule of the same sex between the child and the parents, the principle of non-separation of siblings, the rule of comparing and measuring the suitability of parents, the primary caretaker rule, the friendly parent rule, the rule of the presumption against the offender of domestic violence, etc., and other factors to decide what is beneficial to the minor children, what is disadvantageous, and the extent of the advantage or disadvantage), and have regards to all favorable or unfavorable factors and the degree of impact to decide the best interests of the minor children.
5. The court’s preliminary injunction for the handover of minor children shall be premised on the best interests of the children.
A preliminary injunction in family non-litigation matters is a temporary measure taken in response to an emergency before the court finalizes the ruling to avoid the harm caused by the impossible or delayed performance of the claim in this case. In determining or changing the exercise or assumption of parental rights and duties over minor children, the preliminary injunction for the handover of the child is a provisional preliminary injunction. Although the outcome of the preliminary injunction does not affect the final judgment of the case, once the court issues the preliminary injunction, the effect is that, within the effective period of the preliminary injunction, the father or mother shall exercise or assume the parental rights and duties for the minor children individually or jointly. Although it will, to a certain extent, affect the exercise of parental rights and duties for the minor children, unless the court otherwise prohibits them from leaving the country, it may have a significant impact on the result of living with one of the parents. This kind of preliminary injunction to hand over a child between cross-border parents may all the more change the child's living environment, such as language, living habits, school education, and interpersonal relationships, and has a severe impact on the minor child, so the court shall issue the preliminary injunction based on the best interests of the minor child (refer to Article 7, Paragraph 2 of the Regulations on Types and Methods of Preliminary Injunctions on Family Non-litigation Matters). In addition, although the preliminary injunction to hand over a child is a temporary and necessary measure in response to an emergency, the investigation carried out by the court to decide the best interests of the minor child may not have sufficient time to conduct a strict procedure and detailed investigation as in the present case of deciding or changing the exercise or assumption of the parental rights and duties of the minor children. However, since a preliminary injunction to hand over a child significantly impacts the minor child, the court shall still investigate the relevant information as much as possible in individual cases when time and circumstances reasonably permit. It is not allowed to ignore the factors deciding the minor child's best interests because the preliminary injunction is not a judgment on the case's merits.
6. Respecting the views of minor children is an important principle to protect the best interests of minor children.
According to the constitutional protection of personality rights and human dignity of minor children, the court shall handle matters related to minor children based on the subjectivity of these minor children, respect the views of these minor children, make them express their views in the relevant procedures, and use this as a crucial factor in deciding the best interests of minor children.
Although our country [the Republic of China (Taiwan)] is not a party to the 1989 United Nations Convention on the Rights of the Child (applicable to minors under the age of 18), it has promulgated the Implementation Act of the Convention on the Rights of the Child in 2014, which stipulates: "The provisions of the Convention regarding the protection and promotion of the rights of the child and youth shall have the effect of domestic law." "The laws and administrative measures to which the provisions of the Convention apply shall refer to the purpose of the Convention and the interpretation of the Convention by the United Nations Committee on the Rights of the Child." (refer to Article 2 and Article 3 of the same Act). According to Article 12, Paragraph 1 of the Convention, "States Parties shall assure to the child who is capable of forming his or her views the right to express those views freely in all matters affecting the child, the views of the child being given due weight by the age and maturity of the child." Therefore, simply listening to the child is insufficient; the court shall seriously consider the child's views when the child is capable of forming his or her views and explain how his or her views were considered to avoid hearing the child's opinion as a mere formality (passed by the Committee on the Rights of the Child at its fifty-first session in 2009, cf. General Comment No. 12 of the Convention on the Rights of the Child, on "The right of the child to express his or her views" Paragraphs 28 and 45).
7. In preliminary injunctions for the handover of minor children between cross-border parents, the approximation rule is also an essential principle for deciding the best interests of minor children.
Maintaining the stable growth of minor children in a settled environment and avoiding physical and mental adaptation problems due to changes in the growth environment is highly beneficial for sound physical and psychological development. Therefore, when the court decides or changes that one of the cross-border parents shall exercise or assume the parental rights and duties over the minor child, it shall take into special consideration the language, living habits, school education, and interpersonal connections that the minor child must face after the change of habitual residence, as an essential factor in deciding the best interests of the minor child. Although our country is not a member party to the International Child Abduction Convention (applicable to minors under the age of 16), there is no way to apply the relevant procedures for the rapid return of children among the member parties to the Convention. However, participants of this Convention avoid children being taken away from their habitual residence. After a child is abducted, the child has already adapted to the new habitual place, or the child has already expressed the willingness to refuse to return to the original residence; one should still avoid taking the child away from its new habitual residence against its will (refer to Article 3, Paragraph 1, Article 4, Article 12, Paragraph 2, and Article 13, Paragraph 2 of the Convention). The approximation rule and the child's willingness have already become the principles recognized by international Conventions that shall be given special consideration in the event of the handover of minor children between cross-border parents.
When the court issues a preliminary injunction for the handover of minor children between cross-border parents, since the preliminary injunction is only a temporary and necessary measure in response to an emergency before the judgment is pronounced in the case, unless it is based on a very urgent and vital necessity (for example, the father or mother in the current residence has abused or harmed the minor children, or the parent has lost the ability to take care of the minor children and cannot recover temporarily, or significant accidents such as epidemics and wars have occurred in the current residence, resulting in minor children having to temporarily leave their current residence, etc.), it is not allowed directly to violate the approximation rule, even against the willingness of the minor children, forcing the minor children to "temporarily" leave their originally habitual residence and move to another country before the ruling of this case is finalized, otherwise it would affect the exercise of parental rights and duties for the minor children, it also violates the purposes of the Constitution to protect the best interests of the minor child, and constitutes an infringement of the minor child's personality rights and human dignity.
8. In Disputed Ruling 3, the court shall consider the respect for the views of minor children and the approximation rule, but did not, which violates the purposes of the Constitution to protect the personality rights and human dignity of minor children.
(1) Concerning respect for the views of minor children, there is no record of reviewing the views of Z according to the content of Disputed Rulings 1 and 2. However, Disputed Ruling 2 has already obtained the transcript of Taiwan Taichung District Court Execution Case 109-Ssu-Chih-11967 (2020). However, what it considers, in that case, is the fact that "X and Y have different opinions on the ways to exercise parental rights and duties for the minor children, the confrontation is serious, X has resorted to public media during the pending trial and publicly broadcast a video about Z on social group media," rather than Z's willingness. When Disputed Rulings 1 and 2 were made, Z already lived in Taiwan when Z was five years and eight months old and seven years and eight months old, respectively, so Z shall be given the opportunity to express Z's views inside and outside the court so that Z's opinions can be considered. However, Disputed Rulings 1 and 2 did not give Z an opportunity to express his or her views nor explain the circumstances under which Z's views would be considered; that is, it was ruled that Z must be handed over to Y. When judging the minor child's best interests, it is evident that the views of the minor child should be considered but were not considered.
(2) As far as the approximation rule is concerned, according to the facts identified in Disputed Rulings 1 and 2, from the time Y Took Z to Italy on December 12, 2017, to the time X brought Z back to Taiwan on January 20, 2019, Z has lived in Italy for about one year. From the time X brought Z back to Taiwan from Italy on January 20, 2019, until X's appeal was dismissed by Disputed Ruling 2on October 27, 2021, the period of Z's stay in Taiwan was about two years and nine months (until Disputed Ruling 3 was made on February 23, 2022, the period of living in Taiwan was about three years and one month), Z has adapted well to life and school both in Italy and in Taiwan. According to this fact, Z has lived in Taiwan for much longer than in Italy and has adapted equally well to life and school in Taiwan. Can Taiwan be considered Z's new habitual residence? Whether X should hand over Z to Y and allow Z to move to Italy with Y temporarily, this significant change is a matter that the court should consider when deciding the best interests of Z. Particularly, as Z is getting older, it is more likely that Z may have problems adapting to the change of residence, so making Z temporarily leave Taiwan, where living and school adaptation is already good, and moving to Italy, is it in the best interest of Z? It is a matter that the court should carefully consider. However, Disputed Ruling 2 upholds the view of Disputed Ruling 1 and still holds that Italy, having lived there for one year, is the new habitual residence of Z, and whether Taiwan, having lived there for two years and nine months and well adapted to life and school, is the new habitual residence of Z, has not been considered. Some matters should be considered but have not been considered in deciding the best interests of minor children, which is inconsistent with the Constitution's purpose to safeguard the best interests of minor children.
What is more, Disputed Ruling 2 upholds the preliminary injunction for the child handover in Disputed Ruling 1, which is a temporary and necessary measure before the judgment of this case. Unless it is based on a very urgent and decisive necessity, it is not allowed to violate the approximation rule and force minor children to leave their habitual residence and move to another country merely based on "temporary considerations"; otherwise, it will affect the exercise of parental rights and duties for the minor children. Moreover, the minor children may move and live in different countries due to varying judgments of the courts, which violates the Constitution's purposes to protect the best interests of minor children and constitutes a violation of the minor children's personality rights and human dignity, as mentioned above. However, Disputed Ruling 2 stated that: "In summary, the case of the exercise and assumption of parental rights and duties is still under trial by this court (107- Chia Chin-Sheng-212 [2018]), in addition, refer to the attached file, the transcript of Taiwan Taichung District Court Execution Case 109-Ssu-Chih-11967 (2020), X and Y have different opinions on the ways to exercise parental rights and duties for the minor children, the confrontation is serious, X has resorted to public media during the pending trial and publicly broadcast a video about Z on social group media, this case does have the urgency and necessity to be dealt with by the court with preliminary injunction". However, to solve the two parents' disagreement and severe opposition on the way of exercising parental rights and duties for the minor children, shall we start with how to make both parents realize and practice the best interests of Z as the premise and rationally discuss the solution to avoid harm to Z caused by the parents' disagreement and severe opposition on the way of exercising parental rights and duties for the minor children, rather than taking it as a necessary measure for the innocent Z to temporarily leave the current residence in Taiwan and move to Italy? Even if Z temporarily leaves Taiwan and moves to Italy, can it eliminate the negative impact on the minor child due to the severe confrontation between the parents? Also, X has resorted to public media during the pending trial and publicly broadcast a video about Z on social group media. Has it reached a state where it has caused abuse or harm to Z, or have the parents become ineligible to exercise rights or assume duties over Z, and is it necessary to immediately make Z leave Taiwan temporarily? These are all matters that the court shall consider when judging whether it shall issue a preliminary injunction to hand over Z to Y based on evaluating the best interests of the minor child Z. However, Disputed Ruling 2 does not consider the abovementioned matters; it ruled a preliminary injunction to require X to hand over Z to Y and did not prohibit Y from bringing Z back to Italy. In deciding the best interests of minor children, some situations shall be considered but have yet to be considered. In addition, X can jointly exercise the rights and assume the duties over Z with Y in Taiwan. Still, it has become temporarily performed by Y alone, and X's parental rights and duties for the minor children were affected.
(3) According to the reasons stated above, Disputed Ruling 2 should have considered but did not consider respect for the views of the minor children and the approximation rule, which are related to the judgment of the best interests of minor child Z; this violates the constitutional purposes of protecting the personality rights and human dignity of minor children and thus affects X's exercise of parental rights and duties for the minor children. Disputed Ruling 3 shall, following the law, supervise and examine whether Disputed Ruling 2 is contrary to the Constitution; if the judgment of Disputed Ruling 2 violates the Constitution, it shall be reversed, so that the function of the trial-level system can be brought into play and the purposes of the Constitution can be implemented in specific cases. However, Disputed Ruling 3 maintains the judgment of Disputed Ruling 2 on the best interests of minor children Z, not taking into consideration circumstances that it should have taken into consideration, and it also violates the purposes of the Constitution to protect the personality rights and human dignity of minor children.
(2) The judgment of Disputed Ruling 3 on the right of minor children to express views also violates the protection of due process of law in the Constitution.
1. Judgment of Disputed Ruling 3.
Disputed Ruling 3 held that "in the case of an appeal against a preliminary injunction unless the court considers it improper, the court shall give the interested parties an opportunity to be heard before making a decision, as is expressly stipulated in Article 91, Paragraph 4 of the Family Act. In addition, the court shall give minor children the opportunity to express their views or opinions. It shall do so appropriately, depending on the child's age and other circumstances, and it is not necessary to personally hear their views in court. When issuing a preliminary injunction, the court shall consider the minor children's best interests and prioritize them as soon as possible, as expressly stipulated in Article 7, Paragraph 2 of the Regulations on Types and Methods of Preliminary Injunctions on Family Non-litigation Matters. The Taipei District Court has appointed Guardian ad litem Li-Ying WANG and Hsin-I LIN to protect the rights and interests of Z in the case in dispute and also checked the statement made by Z in the opposite party's application for compulsory execution of the handover of children (refer to the transcript of [Taiwan] Taipei District Court Execution Case 109-Ssu-Chih-11967 [2020] )(note: it should be Taichung here, not Taipei), (see pages 277 to 278 of the original volume II), combining the statements of the two parties, the contact report issued by the Italian psychologist and the daily life photos of Z, even if Z was not interrogated in court, it is difficult to think that there is any violation of the above provisions."
2. In family non-litigation procedures concerning minor children, minor children should be given an opportunity to express their views.
As mentioned above, respecting the personality independence and individual subjectivity of minor children is an essential purpose of the constitutional protection of minor children’s sound physical and mental development. Therefore, the family non-litigation procedure concerning the exercise of rights and assumption of duties of minor children should be based on respecting the procedural subjectivity of minor children so that minor children have the opportunity to express their views, which is not only a due legal procedure guaranteed by the Constitution to consider the best interests of minor children but also has been widely adopted by the current laws of our country (e.g., Article 76 and Article 77, Paragraph 1, Paragraph 2, Article 108, Paragraph 1, Article 110, Paragraph 2, Article 113 of the Family Act, Article 1089, Paragraph 3 and Article 1097, Paragraph 3 of the Civil Code, etc.). When the court makes minor children express their views, the court shall, according to the physical and mental conditions of the minor child, including the age and the capability of discernment, explain the implications of the result of the ruling by an appropriate means in and outside the courtroom, so they may have an opportunity to express their views or state their opinions. If necessary, the court may seek assistance from experts in child or adolescent psychology or other relevant fields (cf. Article 108 of the Family Act).
In other words, regarding family non-litigation procedures concerning the decision of the exercise of rights and the assumption of duties of minor children, as long as the minor children can express their views objectively, it is also possible to express views to the court, the court should give them an opportunity to express their views, so there is a chance that the court will consider their views. In addition, the right to express views is based on the rights of procedural subjectivity of minor children. Minor children do not have an obligation to express their views. If the minor children refuse to express their views, the decision of the minor children shall still be respected. Furthermore, allowing minor children to state their opinions is more than simply listening to them. When minor children form their views, the court must seriously consider them and explain how they are considered to avoid listening to them as a mere formality (for the rest, please refer to the description of this reasoning 3, (1), E).
3. The court shall give minor children an opportunity to express their views before ruling on the preliminary injunction for the handover of the children.
The preliminary injunction in family non-litigation matters is a temporary measure adopted in response to an urgent situation before the ruling of this case is finalized to avoid the harm caused by the impossible or delayed performance of the claim in the case, including measures to preserve future compulsory execution (preliminary injunction like provisional attachment or provisional injunction for the claimed object) and the determination that the opposite party should perform or fulfill the content of the preliminary injunction in the case (preliminary injunction maintaining a temporary status quo). In addition, the preliminary injunction matter is also a family non-litigation matter. The procedural protection for family non-litigation procedures should sometimes be appropriately adjusted according to the type of preliminary injunction. For example, the measure to preserve future enforcement often needs to consider confidentiality. Articles 75 to Article 77 of the Family Act stipulating that the opposite party should be notified before the preliminary injunction and given the opportunity to express his views shall not apply (cf. Article 186, Paragraph 2 of the Family Act applying mutatis mutandis Article 132, Paragraph 1 of the Compulsory Enforcement Act). However, since the preliminary injunction maintaining a temporary status quo determines the state of the legal relationship or even has the effect of ordering performance, the rights and obligations of the related persons will be changed immediately. Unless the court deems it inappropriate, it shall, according to the provisions of Articles 75 to 77 of the Family Act, notify the parties and related persons before issuing the ruling and give them an opportunity to express their views (see also Article 538, Paragraph 4 of the Code of Civil Procedure).
When the court decides, changes, or modifies the exercise and assumption of the parental rights and duties over the minor children and orders an injunction to hand over the minor children, before making a decision, the court shall take into account the physical and mental conditions of the minor child including the age and the capability of discernment, explain the implications of the result of the ruling, by an appropriate means in and outside the courtroom, so they may have an opportunity to express their views or state their opinions. If necessary, the court may seek assistance from experts in child or adolescent psychology or other relevant fields (refer to Article 108, Paragraph 1 of the Family Act). In this case of the merits, when the court decides, changes, or modifies the exercise and assumption of the parental rights and duties over the minor child and orders a preliminary injunction to hand over the minor child, which is a preliminary injunction maintaining a temporary status quo in nature, it has the function to realize the application in the present case. Because the minor child is the subject of the procedure, the minor child should be given an opportunity to express their views before the preliminary injunction is issued following the abovementioned regulations. The opportunity given by the court to the minor child to express his or her opinions is under the guidance of the trial court, both inside and outside the court, so that the views expressed can be heard directly by the trial court; the purpose of which is not only to protect the rights of the minor child's procedural subjectivity, but also to implement the function of the direct hearing doctrine, so that the trial court can announce the impact of the judgment result, and directly hear the statements of the minor child to explain the overall situation of the case, to provide a preliminary injunction in the best interests of the minor child. This function shall not be replaced by just reading the statement content of minor children outside the proceedings. In addition, the Guardian ad litem is granted the capacity to perform all procedural acts on behalf of and in the interest of the person under their guardianship. It is a procedure participant independent of the person under their guardianship. Although the Guardian ad litem can express their opinions in the interests of minor children, they may not replace the statement of the minor child because the court has elected the Guardian ad litem or the Guardian ad litem has made a statement. In other words, when the minor children can express their opinions, the minor children shall be given an opportunity to express their opinions. Although this does not exclude the Guardian ad litem from stating their opinion, it does not mean that the court may replace the minor child's statement with the opinion of the Guardian ad litem; this is the natural conclusion based on the minor children's rights of procedural subjectivity.
4. Minor children shall still be given an opportunity to express their views in appeal proceedings against a preliminary injunction to hand over minor children.
Unless the immediate superior court considers it improper, before making a ruling in accordance with the preceding paragraphs, it shall grant an opportunity to be heard to the interested parties, as is expressly stated in Article 91, Paragraph 4 of the Family Act. Its legislative purpose is to protect the procedural interests of the petitioners, opposite parties, or stakeholders and to enable the immediate superior court to judge the correctness of the previous lower ruling (see legislative reasons of Article 528 of the Code of Civil Procedure). Regarding the preliminary injunction for the handover of the children, its nature is a preliminary injunction to maintain a temporary status quo. This ruling will have a significant impact on the minor children. To protect the procedural subjectivity rights of minor children, before the court makes a ruling on the preliminary injunction, the minor children shall have the opportunity to express their opinions, as mentioned above. If the lower trial did not allow them to have the chance to express their views, unless the obstacles to the minor children’s statement have not been removed (for example, due to the urgency of time, it is too late to make a statement、the minor children are too young to express their opinions、the minor children live abroad and cannot make the statement at the moment, or the location is unknown, and it is impossible to make the statement, etc.), or the immediate superior court has probable cause to believe that it is inappropriate for the minor children to make a statement, the immediate superior court shall still give them an opportunity to express their opinions. Even though the minor children have stated their opinions in the original trial, for the minor children to express their views on the appropriateness and correctness of the original ruling or to understand whether the opinions of the minor children have changed after the ruling of the original trial, the appeal court should still give minor children an opportunity to express their opinions during the appeal process, to ensure that the views of minor children are fully respected and considered, to protect their rights of procedural subjectivity and comply with due process of law.
5. The legal opinion held in Disputed Ruling 3 regarding the opportunity for minor children to express their opinions violates the Constitution.
(1) According to Disputed Ruling 1, when Z was interviewed by expert witnesses in Italy on November 5, 2018, Z could fully express their opinions. On October 31, 2019, when Disputed Ruling 1 was made, Z was already five years and eight months old and enrolled in school. On October 27, 2021, when Disputed Ruling 2 was made, Z was almost eight years old and had been back in Taiwan for two years and nine months before the preliminary injunction and appeal ruling were made. Hence, the court had enough time to give Z an opportunity to state Z’s opinion. However, Disputed Rulings 1 and 2 did not implement this procedure. They issued a preliminary injunction that X should hand over Z to Y and a ruling dismissing X’s appeal, which violated Z’s right to due process of law protected by the Constitution and thus affected the exercise of X’s parental rights and duties for the minor children.
(2) Disputed Ruling 3 holds that: "The Taipei District Court has appointed Guardian ad litem Li-Ying WANG and Hsin-I LIN to protect the rights and interests of Z in the case in dispute, and also checked the statement made by Z in the Taichung District Court Execution Case 109-Ssu-Chih-11967 [2020] in the opposite party's application for compulsory execution of handover of children (see pages 277 to 278 of the original volume II), combining the statements of the two parties, the contact report issued by the Italian psychologist and the daily life photos of Z, even if Z was not interrogated in court, it is difficult to think that there is any violation of the above provisions." However, the court's appointment of a Guardian ad litem and the presentation of opinions by the Guardian ad litem to the court are two separate matters. Even if the Guardian ad litem has stated their opinions to the court, it still cannot replace the opportunity for minor children to express their views, as mentioned above. Furthermore, the immediate superior court replaced Z's direct statement to the immediate superior court with the statement made by Z to the judicial affairs officer in the compulsory execution procedure and the contact report of an Italian psychiatrist not consulted by the trial court; these are also mistakes. Disputed Ruling 3 used the above reasons and holds that the immediate superior court has given the minor children the opportunity to express their opinions; [we believe that] this also violates the purposes of the Constitution to protect the rights of the minor children's procedural subjectivity, and based on this, they should have the opportunity to express their opinions guaranteed by the due process of law, and thus affected the exercise of X's parental rights and duties for the minor children.
3. To sum up, the judgment in Disputed Ruling 2 on the best interests of the minor child Z should have considered but did not consider circumstances, which violates the purposes of the Constitution to protect the personality rights and human dignity of the minor child Z. It also failed to give the minor child Z an opportunity to express his or her opinion before the ruling was issued, which infringed on the minor child Z's right to due process protected by the Constitution. Disputed Ruling 3 upholds the previous opinion of Disputed Ruling 2. It shall also be considered that it conflicts with the Constitution's purposes to protect the best interests of minor children, to protect the personality rights and human dignity of minor children, and the doctrine of due process of law, thus affecting the exercise of the petitioner's parental rights and duties for the minor children. Disputed Ruling 3 shall be reversed and remanded to the Supreme Court.
4. This judgment is only concerned with judging the best interests of minor children, under the principle of respecting the views of minor children and the approximation rule, whether there are situations that should be considered but are not considered, and for Z to have an opportunity to make a statement and making a constitutional judgment on the opinions held by Disputed Ruling 3. It is not a case of deciding the cause of this application (preliminary injunction); the court should decide to hand over Z to the father or mother, whichever is in the best interest of Z. Therefore, after remand under this constitutional decision, how the court decides the best interests of Z shall still be determined by the court according to the purposes of the Constitution to protect the people's fundamental rights.