Note: 
This summary constitutes no part of the Judgment but is prepared by the clerks of the Taiwan Constitutional Court only for the readers' reference.
Original paragraph numbers that the summarized texts correspond to are put into lenticular brackets after each paragraph.

Headnotes

In this Judgment, the Taiwan Constitutional Court (TCC) declared the Supreme Court Civil Order 111-Tai-Chien-Kang-13 (2022) and its preceding Civil Orders regarding the same international child custody dispute unconstitutional. In its reasoning, the TCC held that the child's will and the continuity in a child's upbringing should be given due weight when determining the child's best interest. The TCC also elaborated that the child's opinion shall be heard in custody disputes, interlocutory rulings on the preliminary injunction to change in custody, and interlocutory appeals regarding said injunctions, so that they meet the requirement of due process. The stated Civil Orders fail to meet said requirements, consequently violating the child's personality right, dignity, and the requirement of due process enshrined in the Constitution. 

Background Note

The petitioner X (Taiwanese) and the interested party of this case, Y (Italian), had a non-marital child (hereinafter, “Z”) in Taiwan in 2014. The couple decided to exercise joint custody regarding Z's upbringing. However, Y brought Z to Italy without X's permission in 2017. X later motioned to the Taipei District Court for the change into sole custody, as well as the preliminary injunction to prohibit Y from bringing Z abroad, and the preliminary injunction for Y to hand over Z. The case went back and forth between the district court and the Supreme Court. In 2019, the Taipei District Court delivered its interlocutory ruling, Civil Order 108-Chia-Chan-46 (2019), temporarily changing the custody to Y. X filed an interlocutory appeal against said Civil Order but was dismissed by the Taipei District Court through Civil Order 108-Chia-Sheng-Kang-122 (2021). X further filed a re-appealed against the said ruling but was found unmeritorious and dismissed finally by the Supreme Court through Civil Order 11-Tai-Chien-Kang-13 (2022). 
The petitioner X lodged a constitutional complaint arguing the pertaining Civil Orders did not provide Z with the opportunity to convey personal views, consequently violating the protection of due process enshrined in the Constitution.

This case is the first time that the TCC deliberates on the constitutionality regarding the substance of a case, instead of the abstract laws. And it is also the first time that a Civil Order on preliminary injunction becomes the subject of review. 

Summary of the Judgment 

Holding

1. Supreme Court Civil Order 111-Tai-Chien-Kang-13 (2022) (hereinafter the “disputed Civil Order III”) violates the Constitution. Said Order shall be quashed. 
2. The rest of the complaint shall be dismissed. 

Reasoning

1. The disputed Civil Order III concerns the determination of the best interest of the child.【26】

In principle, the decision on the correctness of the interpretation and application of the law generally belongs to the jurisdiction of courts on each level and their appellate courts. It shall not be reviewed by the Constitutional Court. However, it shall be considered unconstitutional if courts other than the Constitutional Court have interpreted or applied the law base on a false understanding of fundamental rights, have overlooked important matters regarding fundamental rights when applying general clauses of law, or have made an apparent error in balancing the conflict of fundamental rights. Likewise, in principle, procedural matters belong to each level of courts' jurisdiction except when they violate the due process as required by the Constitution, which shall make the procedural decisions subject to constitutional review. 【30】

The best interest of the child is a major consideration and essence of the constitutional protection of the child's personality and human dignity. When the case concerns a child, as the child will bear the outcome of the decision, the best interest of the child shall be of primary concern in both procedural and substantial matters. It includes the situation where the court is deciding on child custody. The court shall look into all positive and negative elements, and consider in custodial disputes, for instance, the respect for the views of the child, the Tender Years Doctrine, the desirability of continuity in a child's upbringing, the preference over the parent with the same sex as the child, avoiding the separation of siblings, assessment of parent's suitability, the primary caretaker parent rule…, etc. The court shall determine the best interest of the child base on said positive and negative elements and their influences.【32, 34】 

To respond to urgent incidents before the decision and to prevent the harm caused by incapability or delay of performance, the mechanism of preliminary injunctions is stipulated under the non-litigation procedures for family matters in the Family Act. When the preliminary injunction is still valid, parents may have to exercise custodial powers over their children individually or jointly. From the perspective of the children, their daily lives may change drastically due to the change of custody, especially for children who are born to parents of different nationalities. 【36】

The courts shall consider the autonomy of the child, respect the child's views, and allow the child to state opinions in relevant proceedings. These opinions shall be taken into account when deciding the best interest of the child. In terms of how the views of the child shall be taken, Article 12.1 of the Convention of the Rights of the Child (1989) stipulates that “States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child."^[1] Therefore, it is not enough to simply hear the child's opinions. When a child is competent in forming his or her own views, the courts shall give due weight to those views and elaborate on how they are considered, so that the hearing of the child's view does not render in formality.^[2]【38- 39】

Furthermore, for a child to grow up in a stable environment, and in the interest of the well-being of the child, the courts shall put special consideration on the challenges in languages, lifestyles, education, and interpersonal relationships that the child faces due to the change of habitual residence caused by changing custody to the parent in another country. The desirability of the continuity in a child's upbringing can also be found in Articles 3.1, 4, 12.2, and 13.2 of the Hague Convention on the Civil Aspects of International Child Abduction, which stipulate that the state authorities shall avoid removing the children from their habitual residence, even though they were abducted.^[3]【41】

Considering the above, the views of the child and the desirability of continuity in a child's upbringing are both important aspects under international conventions when deciding international child custody matters. Hence, when it comes to the preliminary injunction to change custody, as it is a provisional measure before the case is decided, the court shall not overlook said aspects, and force the child to temporarily leave his or her habitual residence for another country before the case is decided, unless it is out of urgent and strong necessity, such as the instance of domestic abuse, incompetency of parents, war, etc. If not so, it will affect the exercise of parental powers and violate the best interest of the child, consequently infringing upon the child's personality and dignity guaranteed by the Constitution.【41-42】

In this case, in the two preceding Civil Orders upheld by the disputed Civil Order III, Taipei District Court Civil Order 108-Chia-Chan-46 (2019) (hereinafter the “disputed Civil Order I”) and Taipei District Court 108-Chia-Sheng-Kang-122 (2021) (hereinafter the “disputed Civil Order II”), the courts did not hear the views of Z in the proceedings, nor did they take into account the rationales of determining the habitual residence of the child. As a result, the courts change the custodial powers directly to Y (Italian) without due consideration of Z's best interest. In conclusion, the disputed Civil Orders I and II overlooked the best interest of the child, consequently violated Z's personality rights and dignity, and infringed upon petitioner X's parental rights. As the disputed Civil Order III shall review the constitutionality of the disputed Civil Order II upon the petitioner's interlocutory appeal so that constitutional justice may be realized in individual cases, its decision in upholding the flawed disputed Civil Order II (in which the best interest of the child was not given due weight) violates the child's personality right and dignity protected by the Constitution.【44-45, 47】

2. The determination of the child's right to be heard in the disputed Civil Order III violates due process under the Constitution.【48】

In custodial disputes, the court shall respect the children's autonomy in the proceedings and shall give children the opportunity to convey their views. It is the due process of determining the child’s best interest, which is also generally adopted by current law in Taiwan.【52】

A child shall have the opportunity to express his or her will and state opinions either in or outside of the courtroom. The child shall also be fully informed of what the outcome of the decision might bring through appropriate means. During the process, the court shall give due consideration to the child's mental and physical condition, such as the child's discernment and age. If necessary, the court may request help from child and adolescent psychologists or other experts. However, it shall not be construed that the child has an obligation to state his or her opinion. The child's decision shall also be respected if he or she declines to be heard.【52, 53】

As the Civil Order for a preliminary injunction (of changing child custody) and the interlocutory ruling on said Civil Order would affect the rights and obligations of the interested parties immediately, the respondent and interested parties (including the child) of the case shall have the opportunity to be heard in front of the court before the ruling or interlocutory appeal ruling of Civil Order. If the child was not given the opportunity to be heard during the proceeding for preliminary injunctions, the court of interlocutory appeal shall amend the flaw and allow the child to be heard or restate their opinions. This way, the child's view will be respected, the child's procedural autonomy will be protected, and due process will be followed.  【55-58】

On a side note, although a guardian ad litem may be appointed by the court to represent the child's interest, the guardian ad litem's opinion cannot substitute the child’s views in custody disputes. When considering the legality of the disputed Civil Orders I and II, the court of interlocutory appeal deemed that Z's testimony to the judicial associate officer, added with the child custody evaluation made by the psychologist is sufficient in substituting Z's opinion, rendering the disputed Civil Order III in violation with Z's procedural autonomy, Z's right to be heard under due process, and X's parental rights.【56, 61】

3. Concluding all of the above, the disputed Civil Order II fails to consider the required aspects when determining the best interest of the child, consequently violating Z's personality rights and dignity protected by the Constitution. Furthermore, the disputed Civil Order II also did not provide Z with the opportunity to express personal views during its proceeding, consequently infringing Z's right to due process under the Constitution. As the disputed Civil Order III upheld said Civil Order's ruling, it shall also be considered in violation of the Constitution. The disputed Civil Order III shall be quashed.【62】

This Judgment only decides on the constitutionality of the disputed Civil Orders. It shall not be construed as holding the opinion that the court shall grant custody to the father or the mother in its preliminary injunction. After the Civil Order is remanded, the court shall determine Z's best interest following the guidance of the constitutional protection on fundamental rights, as it is within its jurisdiction rather than this Judgment's scope of review.【63】

[1] Although Taiwan is not a Contracting State of the Convention on the Rights of the Child (CRC) (1989), but has implemented the CRC through domestic law, which is the Implementation Act of the Convention on the Rights of the Child (2014). Said Implementation Act stipulated that “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” (Article 2) and “The laws and administrative measures to which the provisions of the Convention apply shall be in reference to the purpose of the Convention and the interpretation of the Convention by the United Nations Committee on the Rights of the Child.” (Article 3)
[2] Please refer to Paragraphs 28 and 45 of the General comment No. 12 of the Convention on the Rights of the Child (2009): The right of the child to be heard.
[3] Taiwan is not a Contracting State of the Hague Convention on the Civil Aspects of International Child Abduction (1980).