Determination and Identification of Interests of Minors in Disputes Concerning Children

Abstract

Disputes concerning children have consistently accounted for a significant amount among cases considered in civil proceedings. At the same time, both representatives of the scientific community and law-enforcers have repeatedly pointed out that the current mechanism of judicial protection cannot resolve such cases effectively. The legislation provides for a general procedure for the resolution of disputes arising out of civil legal relationships. But it is impossible to reflect in the text of the law the full diversity of emerging situations and the intricacies of family conflicts. Therefore, substantive law that should guide the courts in disputes concerning children, contains a significant number of evaluation categories. In order to apply an abstract provision of a law in each case it is necessary to grasp its true content. When resolving family conflicts, in many cases a law-enforcer faces with the necessity to protect the interests of children. However, at present, there is no any current understanding of the category "the best interests of the child" in the legal science and practice. Often the resolution of the dispute concerning children is difficult for those designated to resolve the conflict. Thus, today's realities raise the need to examine the category "the best interests of the child". To this end, it is required to reconsider provisions that have already been developed in this field from the point of view of contemporary understanding of law and filling identified gaps. This article provides a brief overview of approaches to the definition of an interest that exist in the sciences related to law, such as philosophy, sociology, psychology. Then, the author attempts to justify a specific nature of the interests of the child and identifies the features of their respect and protection. The paper provides an analysis of issues existing in identifying the best interests of the child in the process of resolving the dispute. The author also considers a problem of giving children an opportunity to define and protect their interests independently on their own. The author highlights some difficulties encountered in the process of implementation of this right. In conclusion the author denotes the problem of finding an optimal balance of interests of a child and other participants of a family conflict. The author expresses the view that finding and ensuring the balance of interests (substantive and procedural) during the court proceedings will guarantee appropriateness and fairness of a judicial decision.