The child right to be heard in court (using the 1980 Hague Convention in Ukraine as an example)

Abstract

The Hague Convention on Civil Law Aspects of International Child Abduction in 1980 introduced a mechanism for resolving issues related to the illegal export or maintenance of children by persons closely related to them. According to this mechanism, executive and judicial authorities must take measures to quickly return the child to the state of his usual place of residence. However, such a return may be refused if there are circumstances specified in the 1980 Convention. One of these is the court's identification of the child’s objections to his return, however, provided that the child has reached an age and level of maturity at which his opinion should be taken into account. Therefore, the court of Ukraine finds out the opinion of the child only if he considers that he has reached the required age and level of maturity. However, the abstractness of the wording of this circumstance leads to the fact that when considering return cases in Ukrainian courts, the child’s opinion is often not heard unreasonably (for example, if the court considers the child’s age insufficient to clarify his opinion, or because the defendant does not insist on hearing the views of the child, or because the parties fail to provide evidence that the child has reached the required age and level of maturity). In our opinion, the courts, in order to avoid such errors, should more actively implement the stipulated in Art. 13 of the Civil Procedure Code of Ukraine the right, on its own initiative, to collect evidence regarding the subject of the dispute, in particular, by appointing a psychological examination aimed at determining the level of development of the child. Clarification of the views of the child should also be carried out with mandatory consideration of the provisions of Article 12 of the 1989 UN Convention on the Rights of the Child, which governs the right of a child to be heard. At the same time, it is worth introducing into the judicial practice of Ukraine the approaches enshrined in the Comments of the UN Committee on the Rights of the Child of General Order № 12 (2009) “The Right of the Child to be Heard”, in particular, related to assessing the child’s ability to express his thoughts