Évaluer le discernement : une perspective biopsychosociale

Article 388-1 of the French Civil Code states that “in any proceedings concerning him, a minor capable of discernment may be heard by the judge”. Family court judges have the task of assessing the minor's capacity of discernment by having neither a definition of discernment nor a method of evaluation and by being ordered not to use the age criterion. Following a review of the literature, we propose a sketch presenting the components of discernment and the biopsychosocial factors that can affect the discernment of an expressed choice/opinion. The objective of this research is to compare the representation of judges’ discernment in family cases with this sketch. Thirty-two family judges participated in this study. The results show a partial representation of judgment among the judges surveyed, with some factors being under-represented and others never mentioned. The theoretical and practical implications of this research will be discussed.