UDC347.634/.637

DOI 10.37566/2707-6849-2019-3(28)-11

(PDF)

DATSENKO Vasyl,

Judge of the Lubensk City Court of Poltava Region,
 coach of the National School of Judges of Ukraine,
 Candidate of Juridicial Sciences

  Interrogation of a child under 10 years of age in the case of determining the place of residence for the best interests of the child

The article explores the legal nature of the right of a child under the age of 10 to freely express their views on issues that affect her personally. Disputes about determining a child's place of residence are extremely complex, both in practical and emotional terms. Such disputes are filled with the negative emotions of parents who cannot decide with whom the child will reside. Under current law, the child itself has a role to play in resolving such a conflict. The relationship between such a right and the principle of the best interests of the child in determining his or her place of residence is analyzed. The practical aspects of the court interrogation of a child under 10 years are covered.

It is established that there are no clear rules in national legislation that would indicate in which cases it is necessary to listen to opinion of a child under 10 years of age. This situation creates the risk of infringement of the relevant right of the child, as in some cases, in the absence of an imperative indication in the law, the court may not pay sufficient attention to such issue. In turn, such a violation will prevent the best interests of the child in making a decision in the case.

In order to prevent the violation of such a right of the child under 10 years of age it is offered to hear its opinion every time after confirming the possibility of the child to express its opinion. This approach follows from the analysis of the norms of international and national legislation.

In addressing the possibility of the child expressing his / her opinion, it is suggested to consider carefully the opinion of experts in matters concerning the development of the child and adolescents - the body of guardianship and care. In some cases, it is suggested to question the child in court in the presence of a psychologist or to appoint a psychological examination.

Key words: the principle of ensuring the best interests of the child, a child under 10 years of age, the right of the child to express an opinion, a dispute about determining the child's place of residence, family and legal relations.

References

The Family Code of Ukraine on September 10 2002, No. 2947-III. URL: https://zakon.rada.gov.ua/laws/show/2947-14 [Ukr.].

Resolution of the Court of Civil Court at the warehouse of the Supreme Court dated 25 October 2018. URL: http://reyestr.court.gov.ua/Review/71826278 [Ukr.].

Of the Chamber of the Supreme Court of the Supreme Court on July 17, 2018. URL: http://reyestr.court.gov.ua/Review/77361954 [Ukr.].

On the ratification of the Convention on the Rights of the Child of 20 November 1989: Resolution No. 789-XII of the Verkhovna Rada of the Ukrainian SSR of 27 February 1991. URL: https://zakon.rada.gov.ua/laws/show/789-12. [Ukr.].

General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration, (art. 3, para 1). URL: https://www.refworld.org/docid/51a84b5e4.html [Engl.].

On the Ratification of the European Convention on the Exercise of the Rights of the Child of 25 January 1996: Law of Ukraine of 03 August 2006 No. 69-V. URL: https://zakon.rada.gov.ua/laws/show/69-16  [Ukr.].

On the Protection of Childhood: Law of Ukraine of April 26, 2001 No. 2402-III. URL: https://zakon.rada.gov.ua/laws/show/2234-19  [Ukr.].

ECtHR judgment of 8 July 2003 in Sahin and Sommerfeld v. Germany.

URL:  https://zakon.rada.gov.ua/laws/show/980_096 [Engl.].

Summarization of the Supreme Court of Ukraine of December 11, 2008 “The practice of court reviewing cases related to deprivation of parental rights, restoration of parental rights, adoption, custody and custody of children”. URL: https://zakon.rada.gov.ua/laws/show/n0020700-08 [Ukr.].

Generalization of the Court of Appeal of Kyiv of 01 January 2009 “Practice of consideration of civil cases concerning adoption of children, deprivation of parental rights, custody and custody of children by the courts. URL: https://zakon.rada.gov.ua/rada/show/n0003705-09  [Ukr.].

Judgment of the Civil Court of Cassation within the Supreme Court of 18 December 2018. URL:  http://reyestr.court.gov.ua/Review/78978469 [Ukr.].

Issues of activities of guardianship and custody bodies related to the protection of the rights of the child: Cabinet of Ministers of Ukraine of September 24, 2008 № 866.  URL:   https://zakon.rada.gov.ua/laws/show/866-2008-%D0%BF [Ukr.].

Pro organi I sluzhbi u spravah dItey ta spetsIalnI ustanovi dlya dItey: Zakon Ukrayiiny vId 24 sIchnya 1995 roku # 20/95-VR. URL: https://zakon.rada.gov.ua/laws/show/20/95-%D0%B2%D1%80 [Ukr.].

Code of Civil Procedure of Ukraine of March 18, 2004 No. 1618-IV.  URL: https://zakon.rada.gov.ua/laws/show/1618-15/print [Ukr.].

Judgment of the European Court of Human Rights in the case of Husnutdinov v. Russia of 18 December 2018. URL: http://european-court-help.ru/delo-7659812-husnutdinov-i-kh-protiv-rossi/ [Engl.]

The decision of Arbuzinsky district court of the Nikolaev area from January 04, 2018. URL: http://reyestr.court.gov.ua/Review/71490041 [Ukr.].

Judgment of the Supreme Court of Ukraine of 12 July 2017. URL: http://reyestr.court.gov.ua/Review/67775143 [Ukr.].

 Judgment of the European Court of Human Rightsin the case of M. S. v. Ukraine ”of July 11, 2017. URL: https://ips.ligazakon.net/document/view/SOO00995?an=2 [Engl.].

 Judgment of the Supreme Court of the Supreme Court of 17 October 2018. URL: http://reyestr.court.gov.ua/Review/77361954 [Ukr.].