Your opinion is (not) very important: how Ukrainian courts ignore the rights and interests of children

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Imagine: the court makes a decision about your place of residence or about changing your last name, first name, and patronymic, and you don’t even know about it. Or you know, you don’t want it, but no one asks your opinion. It sounds strange, but unfortunately, this is a very real scenario if you are a child. A recent study by the DEJURE Foundation, “Taking into account the opinion of the child in civil cases concerning the child’s interests”, showed that in civil cases about the rights and interests of children, the courts ask children for their opinion only in 1 out of 5 cases. We analyzed 767 court decisions in civil cases involving children made in 2021 and 2022. These are cases of determining the child’s place of residence, deprivation and restoration of parental rights, removal of the child/return of the removed child, participation in the upbringing of the child, assignment of alimony for child maintenance, adoption of a child with a simultaneous change of surname, first name and patronymic. From the texts of court decisions, we found out whether children were present in courts during the consideration of relevant cases, whether the opinion of children was ascertained at the pre-trial stage (guardianship and guardianship authority or service for children), in what way the opinion of the child was ascertained, and whether other procedural guarantees were observed consideration of cases with the participation of children. The results are not encouraging. Even without knowing the provisions of the laws in detail, such a situation intuitively seems wrong. After all, children are the same people as adults, and deciding everything for them without their participation is, at the very least, disrespectful. If we delve into the details of the legal regulation of children’s rights, we will see that the child’s participation in matters affecting his life is one of the four key principles of the UN Convention on the Rights of the Child and, at the same time, a revolutionary principle. It distinguishes the approach to children as objects of care from the approach to children as bearers of rights and dignity, who should be guaranteed the right to participate and the right to express their own opinion in all matters affecting their lives. Moreover, our national legislation (in particular, the Family Code, the Code of Civil Procedure) also obliges parents and any officials to listen to the child on matters concerning him personally, as well as on family matters. After all, it is impossible to determine which actions will correspond to the best interests of the child without asking the child himself what is important or desirable for him. Whether Ukraine complies with its international obligations and whether it implements its own laws – whether it ensures children’s participation and the right to express their opinion on all issues affecting their lives – this became the subject of our latest research. Its results showed rather disappointing trends for all categories of cases. In particular, in cases of legal proceedings (that is, when there is a dispute between the parties, for example, between two parents during a divorce), in only 19% of cases court decisions contain a mention that the opinion of the child was clarified in court or at the pre-trial stage. During court hearings, judges sought the opinion of the child in only 9% of such cases. In cases of adoption (cases of separate proceedings), children older than 5 years were invited to the court to find out their consent to adoption only in 22% of cases. In another 29% of cases where children older than 5 years were not invited to court, court decisions contain information that consent to adoption was ascertained at the pre-trial stage. An interesting aspect is the court’s decision to change the child’s surname, first name, and patronymic simultaneously with its adoption. In such a case, if the child has reached the age of 7, the court must find out his consent to the registration of the adoptive parent by the mother or father, which will result in a change of surname and patronymic. In practice, in only 13% of cases, children’s surname and patronymic are changed during adoption with their consent. A name change during adoption is more common in infant adoption cases. However, among the studied court decisions there were also 9 decisions where the names of children aged 5, 6, 7, 8 and 13 were changed without the consent of such children. In examining all of these court decisions for child participation, we also identified other challenges related to ensuring the best interests of children in court proceedings. These are cases when judges, due to ignorance of the law, deny children access to justice, make decisions on adoption without the participation of any participant in the case, consider cases in violation of reasonable terms, despite the requirements of the conventions on the consideration of cases on the rights and interests of children without undue delay. All this indicates both a lack of understanding of the specifics of considering cases with the participation of children among judges, as well as their indifferent attitude to the requirements of national laws and international conventions on the protection of children’s rights. Therefore, the DEJURE Foundation will insist on the introduction of specialization with mandatory training for judges considering civil cases on the rights and interests of the child. We will also appeal to the High Council of Justice with disciplinary complaints against judges who committed gross violations of children’s rights. Human rights are not something that is granted at the age of 18. Children who have a sufficient level of understanding should at least be aware of the decisions that may determine their fate. And although in theory the legislation of Ukraine mostly provides this right, in practice we are extremely far from the fact that the child’s opinion has any significance. Kateryna Hryshchenko, analyst of the DEJURE Foundation Publications in the “View” column are not editorial articles and reflect exclusively the author’s point of view

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