Zbornik Radova Pravnog Fakulteta u Nišu (Jan 2014)
The right of the child to express opinion in judicial proceedings
Abstract
The Convention on the Rights of the Child falls into the group the basic internatio nal instruments that define the corpus of universal human rights. This Convention may be described as innovative because it has established a set of new rights, including the right of the child to express his/her opinion. One of the most significant innovations introduced by the Family Act of the Republic of Serbia (2005) is the right to participation, which is a major step forward in raising awareness about the child as a person who is entitled to actively participate in exercising his/her rights. A child who is capable of forming his/her opinions is entitled to express those opinions in judicial proceedings concerning the child. The court shall allow the child to express his/her opinion and his/her views shall be taken into account. In this paper, the author observes this right within the scope of civil proceedings. First, the author points out to some inconsistencies and dilemmas pertaining to this guaranteed right and its exercise. Further on, the author focuses on the judicial practice (case law) of national courts in order to illustrate how and to what extent the right of the child to express his/her opinion is actually recognized and fully implemented. The application of the child's right to express his/her opinion is pretty fluid and this right applies to all cases and matters involving children. The most important principle in all cases concerning children is 'the best interests of the child' or 'the child's welfare', both in the course of administering child-related matters and in the process of making and implementing decisions concerning the child. The fact that the child's opinion is to be heard in the decision-making processes does not automatically imply that it will be accepted as crucial. In judicial proceedings, the expressed opinion of the child must be assessed precisely in the accordance with the child's best interests. Considering the importance of the fundamental right of the child to be heard, the Serbian legislator has not significantly departed from the standards envisaged in the Convention. The scope of this right, which is regulated in the Family Act (2005), has been slightly narrowed in comparison to the Convention provisions primarily due to the legal restrictions and standards in domestic law.
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