APPLIED ASPECT OF TAKING INTO ACCOUNT THE CHILD'S OPINION IN THE CIVIL PROCEDURE FOR ENSURING HIS/HER BEST INTERESTS

УДК 347.626:347.635/637

ORCID: 0000-0001-9124-1413

DOI 10.37566/2707-6849-2023-3(44)-9

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Olga STUPAK,

judge of the Civil Court of Cassation as part of the Supreme Court

APPLIED ASPECT OF TAKING INTO ACCOUNT THE CHILD'S OPINION IN THE CIVIL PROCEDURE FOR ENSURING HIS/HER BEST INTERESTS

The purpose of the article is an attempt to reveal, through applied research, the grounds and procedure for clarifying and taking into account the child's opinion by the court in the form of obtaining a sufficiently formulated child's opinion as a necessary and reliable statement in the case.

Results of the research. It is proved that the procedure for ascertaining and taking into account the child's opinion by the court itself includes two interrelated components 1) the substantive aspect, which is disclosed through the relevant regulatory framework and conditions for such a procedure – laws, international standards which determine the grounds for determining the child's attitude to a particular circumstance in a dispute; 2) the procedural aspect – defines the actual peculiarities of such a procedure, determines the persons authorized to conduct it (other than the court) and other issues which may arise. The author substantiates that the procedure for obtaining a child's opinion and then taking it into account should begin with procedural opportunities to exercise the child's right to freely express his or her opinion in various ways, and the Supreme Court has repeatedly expressed its opinion on this issue. At the same time, the author establishes that the realization of the child's right to free expression of his/her opinion must be consistent with other grounds which the court must take into account.

It is proved that the child's right to express his/her opinion in the procedural procedure for taking his/her opinion into account is also revealed through such an aspect of it as «the child's right to be heard in the course of consideration of family issues by the courts». In this regard, the ECtHR has formulated general principles which state that although Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms does not contain clear procedural requirements, the child should be sufficiently involved in decision-making regarding his or her family and private life.

The author proposes to introduce specialization of judges and pilot courts of first instance with «Green Rooms», where, according to statistics, the civil cases under study are most often heard, with the mandatory involvement of a psychologist to conduct such a procedure, with further legislative consolidation of the specifics of the procedural procedure under study in the procedural legislation.

Key words: best interests of the child, civil proceedings, civil procedural procedure, finding out and taking into account the child's opinion, the right to freely express one's opinion, the right of the child to be heard, green rooms.

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