Механізми захисту прав та інтересів дитини у цивільному процесі органами публічної влади в умовах реформи децентралізації

Abstract

Formulation of the problem. In the EU, the judiciary plays a key role in the state system of children's rights protection. However, if criminal proceedings deal with both cases where the child is a crime victim and those accused of committing a crime (upon reaching a certain age), civil proceedings deal with a wider range of issues related to the protection of the child, including the protection of property rights, protection from violence and abuse, including by parents and relatives, as well as the definition of disputes between parents regarding the upbringing and maintenance of the child, deprivation of parental rights, adoption of a child, etc. It is important to study the mechanisms of children’s rights and interests protection by public authorities in civil proceedings, analysis of existing problems in litigation in terms of compliance with the interests of the child, and develop proposals to improve legislation and case law to improve protection of the children’s rights and interests in civil proceedings.Identify previously unresolved parts of the overall problem. An unsolved part of the general problem remains the scientific substantiation of effective mechanisms for the protection of the rights and interests of the child by public authorities in civil proceedings.The purpose of the article is to develop proposals for improving the mechanisms of children’s rights and interests protection by public authorities in civil proceedings in a decentralized environment.Presenting main material. The norm on the powers of the prosecutor's office to represent the interests of a citizen in court in cases specified by law has been removed from the Constitution of Ukraine. This deprived the prosecutor's office of the right to go to court to protect the child rights, which significantly weakened the existing system of children’s rights protection and the representation of the child interests in court. Due to the judicial reform, the incompleteness of many courts, many cases related to the children’s rights protection, in particular, adoption, deprivation of parental rights, child removal are considered in violation of statutory deadlines. In addition, after the entry into force of the new version of the Civil Procedure Code of Ukraine and the extension of the term for appeal from 10 to 30 days, the entry into force of court decisions on adoption, deprivation of parental rights, determination of the child's place of residence was significantly delayed. All this leads to serious violations of the child's right to protection of life and health, to upbringing in a family environment.The situation is complicated by the fact that in the context of decentralization in rural areas it is unclear which body should perform the functions of the guardianship authority - the district state administration or the executive committee of the village council of the united territorial community, which leads to blurring responsibilities in cases of threat to the life and health of the child. Most districts and local communities do not meet the staffing requirements for children's services, which also leads to a lack of attention to the rights of the child. In rural united territorial communities, children's services have not been established contrary to the requirements of the Law, and after the consolidation of districts it is unclear how the joint district state administrations will be formed or whether they will retain the required number of children's services. Therefore, there is a serious danger of losing the functions of children’s rights and interests protection in rural areas.An important issue, which is considered in civil proceedings, is the issue of deprivation and restoration of parental rights, separation of the child from the parents without deprivation of their parental rights. The determining factor here is the conclusion of the guardianship authority. At the same time, the lack of attention to the child interests endangers the life and health and even the children death. Today in Ukraine there are no levers of influence on the guardianship authorities. Even the order of the head of the district state administration as a decision of the body of guardianship and trusteeship can be revoked only by the court and not the head of the regional state administration, not to mention the decision of the executive committees of local governments.Thus, we can talk about a serious weakening of the state system of children’s rights and interests protection and the weakness of the mechanisms of state influence on the children’s rights and interests protection in civil proceedings.There are no effective legal mechanisms for enforcing the decisions of the guardianship authority to determine the child's place of residence and it is generally suspended in case of timely appeal to the court, and the relevant court decision is not always easy to enforce. The trial may take a long time and during this time the conflict deepens. An arbitrary change of residence of a child can help to win a case in court, as the court's conclusion must be made by the guardianship authority at the child's actual place of residence, and it is certainly easier in many cases to obtain a positive opinion from the local guardianship authority. relatives of one of the parents.Conclusions and recommendations. These problems of observance children’s rights and interests in civil proceedings are related to the lack of a proper mechanism for child representing in the court after deprivation of the relevant functions of the prosecutor's office, insufficient attention of guardianship authorities to the protection of the child's interests place of residence of the child, long court proceedings for adoption, deprivation of parental rights, removal of the child, determination of the child's place of residence, participation of the parent living separately in the child's upbringing, lack of specialization of judges in family cases. Extremely threatening is the situation with uncertainty, to which public authority the powers of the body of guardianship and trusteeship are transferred after the consolidation of districts in the process of modern administrative-territorial reform and decentralization.To ensure the child interests in civil proceedings, it is proposed: - consider the expediency of amending the Constitution of Ukraine legal norms to restore the function of the prosecutor's office in relation to the representation of the interests of the child in court and supervision of the rights and freedoms of the child; - make changes to the Family Code of Ukraine and the Civil Procedure Code of Ukraine, which provide for the adoption of a preliminary court decision, which will determine the place of residence of the child and the order of communication of the other parent with the child, resolved other controversial issues of child rearing to take conclusive measures of reconciliation between parents and to determine the list of circumstances that are taken into account when considering a dispute between parents regarding the maintenance and upbringing of a child; - legally expand the ability of a child over 14 years of age to apply to the court independently, including the issuance of a restraining order, recovery of alimony, protection of their rights and interests, if the child's parents evade protection of the rights and interests of the child; - provide for the introduction of specialization of judges in family cases; - at the end of the decentralization reform of the system of public authorities, clearly define which body will perform the full functions of guardianship and trusteeship bodies: executive committees of village councils of united territorial communities or district state administrations and ensure implementation at the level of united territorial communities; and at the district level, the requirements of part seven of Article 4 of the Law of Ukraine “On Bodies and Services for Children and Special Institutions for Children” regarding the staffing of services for children.