Breach of the right to be heard and its cure

Violation of the right to be heard and cure

A breach of the right to be heard and its remedy concerns a typical question of Swiss family and procedural law. For the legal assessment it is not catchwords or personal attributions that matter, but the established facts, the relevant legal basis and the concrete effects of the measure requested or ordered.

Courts must distinguish between party submissions, documented facts, evidence and their own findings. An application does not by itself prove the factual prerequisites for it. Conversely, a relevant, substantiated fact must not be disregarded solely because it was submitted by a party.

In family law, the child's best interests are central in matters concerning children. At the same time, procedural guarantees apply such as the right to be heard, access to files, a comprehensible justification and an appropriate assessment of evidence. Interventions must be suitable, necessary and proportionate.

A good legal documentation therefore specifies the date, document type, author or official role, the content of the specific action and its procedural status. It avoids motives that are not substantiated and explicitly indicates whether something is an assertion by a party, an action by an authority, a judicial finding or an editorial classification.

For affected persons it is regularly crucial to keep a complete chronology, retain filings and service documents, and pay attention to clear motions. Where the circumstances change, it must be examined whether new facts can still be introduced in the ongoing proceedings and which legal remedies are available.

Further articles

Editorial specialist article. Not individual legal advice. Before publication, the state of legislation and case law and the sources must be reviewed again.