Учет мнения детей при разрешении споров об их воспитании: практика в Советской России и эволюция нормативного закрепления

Abstract

Introduction. The Soviet law postulated the priority of the interests of children as the main principle of resolving family disputes. The Modern Russian legislator has adopted this approach. Currently, cases of mandatory consent of children to perform a legally significant action have been established and the procedure for ascertaining the opinion of minors has been regulated. Did a child have the right to vote in Soviet courts? The answer to this question will help to understand the historical background of the formation of the juvenile justice in Russia. Methods. The study was based on dialectics, which acts as a general methodology of scientific knowledge. General scientific, special and specific scientific methods were used. A generalization of the judicial practice of the Soviet period was carried out using analysis, synthesis, induction and deduction. The results obtained were processed using the interpretive method. A comparison of legal regulation in different historical periods is carried out (comparative research method). The principle of historicism made it possible to assess the dynamics of the development of the child’s right to express his opinion when resolving a dispute and to identify cause-and-effect relationships between the Soviet and modern approaches to this issue. Results. It was revealed that in the Soviet Russia the question of taking into account the opinions of children when resolving disputes about their upbringing was raised by judicial practice: first in individual cases, then in uniform explanations. The court was required to take into account the views of children. The forms of ascertaining the child’s wishes were different; priority was given to out-of-court interviews. The older the children were, the more likely it was that a decision would be made in accordance with their wishes. At the same time, the practice of courts, which limited themselves only to the child’s opinion, received a negative assessment. It was necessary to evaluate how well the children’s wishes corresponded to their real interests, the reasons for the lack of contact with persons applying for education, and the living conditions that were created for the children. The continuity of the Soviet experience in modern legal regulation of taking into account the child’s opinion in family disputes is revealed. The requirements developed by Soviet lawyers are applicable to modern court cases.