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

This is a translation of an original piece published on Ukrainska pravda. Read in Ukrainian here.

Kateryna Hryshchenko

Imagine a scenario where a court makes a decision regarding your place of residence or alterations to your name, surname or patronymic, yet you remain unaware of such proceedings. Alternatively, you might be aware of these decisions but not in favor of them, yet your perspective remains unheard. Although peculiar, this unfortunate reality is all too common for children.

A recent research by DEJURE Foundation, "Taking into account the opinion of the child in civil cases concerning the child's interests," revealed that in civil cases concerning the rights and welfare of children, courts solicit the opinions of children merely in 1 out of 5 cases.

Our analysis delved into 767 court rulings involving children in civil cases from the years 2021 and 2022. These cases encompassed matters such as determining a child's place of residence, the termination and reinstatement of parental rights, child removal or repatriation, involvement in a child's upbringing, awarding child support, and the adoption of a child with a concurrent modification of their surname, first name, and patronymic.

From the texts of court decisions, we tried to find out whether children were physically present during court proceedings for pertinent cases. We also examined whether children's viewpoints were solicited during the pre-trial stage (conducted by the guardianship authority), the methods employed to obtain the child's perspective, and the extent to which other procedural safeguards for cases involving children were adhered to. Regrettably, the results are not encouraging.

Even without delving deeply into the specifics of legal statutes, such a scenario inherently feels unjust. After all, children are no different from adults, and making decisions on their behalf without involving them is, at the very least, a display of disrespect.

Upon closer examination of the legal framework surrounding children's rights, we quickly realise that their participation in decisions that impact their lives stands as one of the four fundamental principles of the UN Convention on the Rights of the Child. Simultaneously, it represents a revolutionary principle.

This principle distinguishes treating children as mere recipients of care from treating them as individuals with inherent rights and dignity. They should be unequivocally granted the right to participate and the right to voice their opinions in all matters that influence their lives.

What's more, our domestic legislation, including key components like the Family Code and the Civil Procedure Code, compels parents and any officials to heed the child's perspective in affairs concerning them personally and within the family sphere. After all, determining the most suitable course of action in a child's best interests necessitates directly inquiring what the child deems important or desirable for themselves.

The extent to which Ukraine fulfils its international commitments and effectively enforces its domestic regulations, especially in guaranteeing children's involvement and their right to voice their views on matters that shape their lives, became the focal point of our recent research.

The outcomes of this research revealed rather disheartening patterns across all case categories. Specifically, in instances involving legal proceedings (such as disputes between parties, like parents in a divorce situation), 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.

Throughout courtroom proceedings, judges actively sought the child's viewpoint in a mere 9% of similar cases. In cases of adoption (cases of separate proceedings), children above the age of 5 were invited to participate in court proceedings to ascertain their agreement with the adoption in only 22% of instances. In another 29% of cases where children over 5 years weren't present in court, the court documents indicated that consent for adoption had been established during the pre-trial stage.

An interesting aspect arises when considering court decisions regarding a simultaneous alteration of a child's surname, first name, and patronymic alongside adoption. In such circumstances, if the child is 7 years old or older, the court is required to determine their agreement to the new adoptive parent's registration, a change that influences their surname and patronymic.

In practice, a mere 13% of cases featured changes to children's surnames and patronymics during adoption proceedings with their explicit consent. Alterations to names during adoption tend to be more frequent in instances involving infants. 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 adoption decisions without the participation of any participant in the case, and 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 these instances indicate 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, DEJURE Foundation will insist on the introduction of specialisation with mandatory training for judges hearing 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 magically emerges at the age of 18. Children possessing a reasonable level of comprehension should, at the very least, be informed about decisions that could shape their destiny. Although, in theory, Ukrainian legislation predominantly upholds this right, the practical reality starkly deviates from a scenario in which a child's viewpoint holds any substantive significance.