Securing the right of the child to express views in the process of a case adjudication: international bodies of human rights protection’ approach

Abstract

While considering the case related to the rights and interests of the child the judge can face the situation raising questions about the substance of the right of the child to express views and practical aspects of its realization. Some of these questions, which were not yet clarified by the Supreme Сourt of the Russian Federation, could be considered through the perspective of corresponding international standards. These standards reflect principles of child-friendly justice and cannot be divided into those applied within the sphere of criminal justice and those for civil and family cases. The necessity to secure a possibility for a child to voice his/her views requires certain adaptation of the judicial process for the needs and capacities of the child. «The style» of the process should be changed along with the procedure. Two principles were underlined by the international bodies in this context: active protection of the child by the court and the necessity of a child-sensitive approach. Their application is demonstrated basing on the European Court of human rights’ jurisprudence. While international human rights bodies give considerable weight to the possibility to hear the child directly, they nevertheless accept this is not always for the benefit of the child or justice. This applies not only to minor children but to those older than 10 y. o. as well. In such situations, the court has to seek assistance from a professional qualified to hear the child. However it is the court that bears the responsibility for the judgment even when expert's opinions it received were contradictory or those of low quality.