THE CHILD’S RIGHT TO BE HEARD IN CIVIL PROCEEDINGS

Abstract

Caring for the welfare of children is a continuous and ongoing process, the foundation of which is a legally sound system. Child-friendly proceedings are designed to ensure the meaningful involvement of children in the decision-making process, which, of course, is manifested in the proper realization of the child’s right to be heard. A child’s right to be heard in civil proceedings is a crucial aspect of child-centred justice, recognizing children as active participants in decision-making. The article studies the evolution of the child’s right to be heard in the international legal system, thus examining international conventions such as the United Nations Convention on the Rights of the Child and regional documents that recognize the children’s right to participate in decision-making processes related to them. The article analyzes the legal framework applicable in different jurisdictions, including challenges and best practices in exercising the right. In addition, the article discusses the importance of the child’s participation in civil proceedings, emphasizing its impact on the child’s development and well-being and, on the other hand, on the quality of court decisions. The article discusses the relationship between the child’s right to be heard and the standard of protection of the best interests. It emphasizes the need for a multidisciplinary approach when dealing with cases related to children. The article reviews the practical challenges and opportunities related to this issue and circumstances limiting the right, such as age and maturity. The legal ways necessary for better realization of the child’s right to be heard are proposed in the form of recommendations in the article.

Keywords: Best interests, Convention, Committee on the Rights of the Child

Introduction

The relevance of ensuring the child’s right to be heard in civil proceedings is deeply rooted in its legal importance. The child’s right to be heard strongly guarantees fair decision-making. In this regard, the issue of whether the child’s right to be heard is ensured during civil proceedings is highly relevant and significant. The Code emphasizes the urgency of the issue, adopted in 2019, particularly Article 8, which defines the necessity of expressing the child’s opinion and taking it into account. However, the question is whether the abovementioned Code ensureდ the child’s right to be heard fully. In this regard, the issue needs to be evaluated and relevant recommendations developed.

Violating a child’s right to be heard or inadequate provision can lead to unfair decisions regarding the child. The article aims to study the legal nature of the child’s right to be heard, identify the circumstances that may limit or hinder the full exercise of this right,  present the obstacles in the national legislation and make the necessary recommendations.

The article’s novelty lies in its focus on legislative recommendations derived from research on ensuring the child’s right to be heard in civil proceedings.

Several scientific research methods were employed in the research, including grammatical and teleological interpretation of legal norms, to identify legal gaps and develop recommendations. Comparative legal research and analysis of court decisions are presented to determine the limiting circumstances of the child’s right to be heard. The main issues of the paper are also processed using analysis and synthesis methods.

In the first chapter, the focus is on providing a general review of the legitimate purpose and preconditions of the child’s right to be heard, as well as its relation to the child’s best interests. In the second chapter, the focus shifts towards the circumstances limiting the child’s right to be heard, while the third chapter discusses national legislation and practice, as well as existing gaps and recommendations.

1.The child’s right to be heard and its relation to the standard of protection of the best interests

The evolution of the child’s right to be heard in international law represents a significant change in recognizing children as autonomous individuals with distinct rights and interests. One of the fundamental documents of this evolution is the Declaration of the Rights of the Child, adopted by the General Assembly in 1959.^[1] Although the Declaration recognized children’s entitlement to special care and assistance, it did not explicitly mention the right to be heard. Nevertheless, the Declaration laid the groundwork for future developments in children’s rights by emphasizing the importance of considering the needs and interests of children. The next important step in the evolution of the child’s right to be heard was the adoption of the Convention on the Rights of the Child by the United Nations in 1989.^[2] The Convention on the Rights of the Child (CRC) is the most universally ratified human rights treaty in history, which treats the child as the subject entitled to a comprehensive range of rights, rather than passive recipients of care, love and protection.

The Convention on the Rights of the Child defines four general principles, one of which is the right to be heard. Article 12 of the Convention on the Rights of the Child (CRC)^[3] not only explicitly establishes the right of children to be heard but also emphasizes the fundamental importance of this right in the interpretation and implementation of all other rights recognized in the Convention.^[4]

Since the Convention on the Rights of the Child is based on the concept of child welfare, in its actual definition and identification, child participation is required.^[5] Thus, the Convention on the Rights of the Child (CRC) indeed recognizes the critical importance of children’s participation in decision-making processes that affect them directly.

According to the first part of Article 12 of the Convention on the Rights of the Child: “States Parties shall assure to the child who is capable of forming his or her views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child“.^[6] Article 12 of the Convention on the Rights of the Child (CRC) places a clear responsibility on states to ensure that children have the opportunity to express their views on all matters affecting them freely. For states to realize the abovementioned right accurately and without any distorted interpretation, it is necessary to clarify what is meant by “having the ability to form one’s own opinion “. The case of the European Court of Human Rights clarifies in the case N.TS v. Georgia,^[7] that the mentioned phrase does not define a restriction but the obligation of the state to evaluate the child’s ability within the scope of the possibility. The state party must assume in each particular case that the child can express his/her views, the child is not obliged to prove his/her capacity. The child has the right to freely express his/her views without any pressure, and his/her desire to exercise the right to be heard is noteworthy.

To ensure that the child is heard, in accordance with the first part of Article 2 of the Convention, it is necessary that the issue concerns the child himself/herself, and Article 12 of the Convention does not explicitly define the right to express opinion in general. Instead, it specifically focuses on the right of the child to freely express their views on all matters affecting them. In addition to the above, the disposition of the same article emphasizes the importance of considering the views of the child in accordance with their age and maturity.

Unlike the first part, the second part of Article 12 of the Convention is procedural and imposes the obligation to hear the child on the court and administrative bodies directly, through a representative or a relevant body. However, the Convention on the Rights of the Child (CRC) does not provide specific guidance on the form or procedures for ensuring children’s participation in judicial proceedings.

Later, Article 12 of the Convention was interpreted by the UN Committee on the Rights of the Child, which supervises the implementation of the Convention and requires States Parties to ensure that children are allowed to express their views on all matters affecting them, including in judicial and administrative proceedings. The Committee explains^[8] that the implementation of Article 12 of the Convention requires five steps to be taken, namely:

1. Informing the Child of Their Rights—Those responsible for hearing the child should ensure that the child is informed of their right to express their views on all matters affecting them. In addition, the child must receive information about the hearing through a representative.


2. Hearing—The environment in which the child exercises the right to be heard should be encouraging. The child needs to make sure that the adult responsible for listening to him/her is ready to listen to him/her and take seriously what he/she decides to say. The person who listens to the child may be involved in issues related to the child (e.g. teachers, social workers or caregivers), may also be a decision-maker in the institution (e.g. principal, administrator or judge), or a specialist (e.g. psychologist, expert, doctor).


3. Assessment of the child’s ability—It is necessary to assess the child’s ability and the extent to which he/she can form his/her own opinions reasonably and independently.


4. Giving proper importance to the child’s opinion—The decision maker should give due importance to the child’s views.


5. Appeals—The legislation shall ensure the rights and procedures for appeals when a child’s right to be heard and have their views given due weight is neglected or violated. Based on the abovementioned, five basic procedures must be followed at the stage of hearing the child in the proceedings, which the legislation must ensure; otherwise, it will lead to a diversity of practice and errors.

The child’s right to be heard is a crucial tool for improving justice. When children are involved in the proceedings, they contribute to the quality of the process and increase the likelihood of fair outcomes.

When realizing the child’s right to be heard, it is important to clarify that this is a child’s right and not a duty. A child should be heard when he/she can form his/her views. However, this should not be judged only by age, it is also necessary to inform the child about his/her rights.^[9] This is the foundation and general framework for realizing the child’s right to be heard in the civil process especially, when the issue concerns sensitive topics related to the child, such as: determining the place of residence, relationship with parents and others.

The most important factor in realizing the child’s right to be heard is considering the child’s opinion. However, this right is not absolute and may be limited. Age and maturity are significant factors that may limit a child’s right to be heard in certain cases. However, assessing the extent to which the child’s rights can be limited in relation to other rights provided by the Convention is especially important. For example, when giving priority to the best interests of the child.

According to the first paragraph of Article 3 of the UN Convention on the Rights of the Child, “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities, or legislative bodies, the best interests of the child shall be a primary consideration”.^[10]  The principle of the primacy of the best interests of the child and the right of children to be heard are two fundamental pillars of the Convention on the Rights of the Child (CRC) which are used in the interpretation of all other provisions.^[11] Based on the abovementioned, understanding the relationship between the child’s right to be heard and the standard of protection of the best interests is crucial for ensuring that neither right is unreasonably limited at the expense of the other.

Regarding the best interests of the child, the Court of Human Rights explains that the assessment of the best interests of a particular child should be carried out individually,^[12] when a) the child’s opinions should be given due importance, b) all other rights of the child must be taken into account, including the right to dignity, freedom and equal treatment, c) a multidisciplinary approach should be used by all agencies that will consider all interests, including the child’s psychological and physical well-being, legal, social and economic interests. Courts should employ a multidisciplinary approach to determine the child’s best interests when considering and deciding cases involving children“.^[13] Based on the abovementioned, listening and considering the child’s opinion is a criterion for determining the child’s best interests. Therefore, the child must participate in the determination and identification of the best interests of the child.^[14] That is why it is clear that Articles 12th and 3rd of the Convention do not contradict each other instead, Article 3rd reinforces Article 12th promotes the essential role of children in the decision-making process.^[15] Determining the best interests of the child without listening to him/her and taking his/her opinion into account is unreasonable, the child knows what he/she wants and what represents his/her well-being. As for taking into account the opinion, this is a matter of further assessment; however, when making a decision, the child’s opinion should not be taken into account only if the child’s ability to fully express his/her views, assessed as necessary, does not meet the criteria established by Article 3 of the Convention, in this regard, it cannot be used to determine the standard of best interests. In this case, disregarding the child’s opinion conflicts with the right to the priority of the best interests only because the requirements of Article 12 of the Convention are not met. Therefore, the conclusion that the child’s right to be heard conflicts with the right to prioritize the best interests is meaningless.

2. Age and Maturity as a Limitation of the Right

Article 12 of the Convention on the Rights of the Child (CRC) does not impose an age limit on the child’s right to express their views; this is, of course, contrary to the imposition by States Parties of age limits by law, which would limit the child’s right to be heard in all matters concerning him. In this regard, the UN Committee on the Rights of the Child has emphasized that the child’s right to be heard extends to all children, irrespective of age. This recognition acknowledges that even young children can form opinions, express preferences, and contribute to decision-making processes in meaningful ways.[16] Accordingly, Article 12 of the Convention requires recognising and respecting non-verbal forms, including play, body language, drawing, etc., through which very young children demonstrate choices and desires.

The phrase mentioned in Article 12 of the Conventions, “Giving appropriate weight in accordance with the age and maturity of the child”, in Article 12 of the Convention on the Rights of the Child (CRC) does not imply the establishment of age restrictions. For example,  in Bulgaria and Romania, children are generally heard from the age of ten; in Spain, the legal age of consent for children to express their views on certain matters is typically fourteen, and in Finland, children are normally heard from the age of fifteen in legal or administrative proceedings.[17] In France, the law sets age limits for specific proceedings; for example, in family law proceedings, a child can be heard from the age of seven.[18] Various age-related restrictions at the level of national legislation are artificial barriers to the exercise of the right. Therefore, they should not be considered at the legislative or practical level.

It is interesting to what extent it is possible to limit the right to be heard to very young children. In very young children who are not yet able to form an opinion or otherwise express their wishes,[19] it is necessary for the courts to rely on the expert’s objective assessment,[20] to determine whether a child can be heard, taking into account the age and maturity of young children, even with the help of a child psychologist/specialist if necessary.[21] The fact that the child is very young or in a vulnerable situation (eg, with disabilities, belonging to a minority group, being a migrant, etc.) does not deprive him/her of the right to express his/her views and does not reduce the importance that should be given to the views of the child in determining his/her best interests.[22] According to the explanatory report of the Convention, attempts to establish a minimum age during the process of developing the text of the Convention ended in failure, since “all the numbers had an artificial, one might say, arbitrary character. It was considered best to entrust the application of this provision in life to the competence of the relevant bodies”.[23] Entrusting the competence of relevant bodies, obviously, does not mean the possibility of setting a minimum age at the legislative level, it is related to the practical implementation of the right to be heard of the child, during which the competent persons make a decision to listen to the child and take into account his/her opinion.

As for maturity, it refers to the capacity of a child to understand and evaluate specific outcomes. Maturity is quite difficult to define in the context of Article 12 of the Convention; it is the child’s capacity to express reasonable and independent views on various issues. The greater the impact of the result on the child’s life, the more relevant the appropriate assessment of the child’s maturity. In contrast to the establishment of age restrictions, the legislation of various countries hardly defines what constitutes a child’s maturity. It is mainly a matter of assessment in the abovementioned decision-making process. For example, In Croatia and France, the determination and evaluation of a child’s level of maturity and best interests are often conducted on a case-by-case basis.[24] Polish civil law explains that children can be heard in legal proceedings if their maturity, development, and health allow them to participate, but the law does not define “maturity”.[25] Thus, age and maturity-based restrictions should indeed be subject to individual assessment to ensure that children’s rights are upheld equally,[26] “Information, experience, environment, social and cultural expectations and level of support determine the juvenile’s ability to form his/her own opinion. That is why it is evaluated individually”.[27] Such an assessment ensures that children are involved in decision-making, with reasonable assistance and support if necessary.

Thus, considering age and maturity as limiting circumstances of the child’s right to be heard requires an objective assessment process. Otherwise, no one can limit the child from expressing his/her opinion and views. Here, it should be taken into account that age taken separately, even very young age, cannot be considered as an unconditional limiting circumstance; the required maturity may not be suitable for the full expression of the child’s opinion; in this regard, any legal restrictions do not serve the requirements stipulated by the Convention. Moreover, they are contrary to the objectives of Article 12 of the Convention.

3. Incorporation of the Child's Right to be Heard in National Legislation

The Code on the Rights of the Child was adopted in 2019, according to which the standards of recognition, realization and protection of children’s rights were determined by national legislation, which applies everywhere when discussing issues related to children. The child’s right to be heard is defined by Article 8 of the Code, according to which: 1. The child shall have the right to have his/her opinion heard when resolving any matter related to or affecting any of his/her rights and to have his/her opinion taken into account in accordance with the child’s best interests; 2. The child shall have the right always to be heard when the child is willing to express his/her opinion, either directly or by providing due support depending on individual needs, and in the form and by any means of communication desirable and permissible for the child; 3. The restriction of the right provided for by paragraph 1 of this article on the grounds of age, disability or other circumstances shall be inadmissible; 4. The process of interviewing the child and listening to his/her opinion should be informative, voluntary, respectful and accountable to the child, adapted to the child, inclusive, safe, conducted by specialists properly trained in child issues”.[28] It should be noted that according to the Georgian legislation, the child’s right to be heard provides for the hearing of the child, taking into account the child’s wishes, when discussing any issue related to him/her, without any restrictions based on age or other circumstances, in an informative, voluntary and child-friendly environment. The Court of Cassation, in one of its important decisions[29] which refers to the recognition and enforcement of a decision of a foreign country in the territory of Georgia, draws attention to the fact that according to the requirements of a special law, a decision recognized in the territory of Georgia is against the public order of Georgia. According to the decision of the court of a foreign country, it is not established whether a psychologist was involved in the consideration of the case or even whether the psychologist heard the minor. The Court of Cassation emphatically explains that “hearing a minor does not mean hearing the child directly in front of the court, but also considers the case when a psychologist’s opinion is presented in the case, taking into account the minor’s psycho-emotional state and desire for attachment or relationship with each parent”.[30] The cassation chamber considered the neglect of the child’s direct and indirect hearing as the main factor in making the decision. Despite considering the principle of hearing the child in the Code on the Rights of Child and the practice of the Court of Cassation, the Code of Civil Procedure does not contain relevant procedural mechanisms regarding the child’s participation in the process and provision of hearing. The Code on the Rights of Child quite generally defines the standards for giving due importance to the opinion of the child; however, for the right to be employed accordingly, it is necessary to change the legislation of a separate field of law based on the Code of the Rights of the Child. In addition to the fact that the Code does not define the child’s right to be heard, it also does not provide for the five procedural steps required to ensure Article 12 of the Convention. For example, the rules of training and informing the child, the need to assess the age and maturity of the child, and the appeal procedures. To establish a uniform practice and fully ensure the child’s rights, the civil procedure legislation needs to include in detail the definitions regarding the child’s right to be heard. Considering the absence of legal regulations, “the starting principle for the court is that children should be recognized and treated as subjects of rights rather than merely objects of protection”.[31]

According to the standard of the European Court of Justice in child-related cases, the quality of the decision-making process is evaluated; in particular, it is determined whether the interested parties, including children, were allowed to express their opinion.[32] The Court of Cassation is guided by the mentioned principle when making a decision. In one of the cases, the Court of Cassation shared the complaint of the cassator regarding the neglect of providing proper security during the interview of the child in the Court of Appeal since the environment was not adapted to the child, which may have caused some kind of confusion, fear and/or restraint of the child. Accordingly, the appeal court’s conclusion that the child, considering his/her age and maturity, could not independently determine what he/she wanted for future development is unfounded.[33] Listening to the child’s opinion is not only a formal process, to achieve the goal of the right, the opinion needs to be properly taken into account in the proceedings and reflected accordingly in the decision. The child’s explanation is a kind of evidence, and its disregard requires the necessary justification, and the basis of the justification is an objective and unbiased assessment. That is why the civil procedural legislation should also include the obligation to substantiate the disregard of the child’s opinion properly, and in case of violation of the abovementioned obligation, the rules and procedures of appeal.

The Code of Civil Procedure stipulates that the rights and legally protected interests of minors between the ages of 7 and 18 are protected in court by their parents or guardians. In addition, the court must involve even minors in such cases.[34] A child’s rights and legally protected interests are protected in court by his/her legal representative. The court is authorized to involve the child in proceedings.[35] Civil Procedure Law gives the child the right to choose how to be heard, whether directly or through a representative. Delegating the right to hear the child to a representative is based on the principle of representation by the appropriate person,[36] which can be considered an indirect form of hearing the minor.[37] The delegation of the right to hear the child to a representative should be utilized in legal proceedings only in cases of extreme necessity. The transfer of the child’s right to another person, regardless of his/her professional training, contains certain risks, the most correct way to avoid these risks is to state the wishes of the child himself/herself. If the representative conveys the child’s opinion, it is necessary to convey the child’s wishes without any unnecessary interference so that the decision is not based on wrong views. If a child is assigned a legal representative or a relevant caregiver and guardianship worker is involved in the process, it is necessary to consider that all professionals working with children should be trained in an interdisciplinary manner, taking into account the rights of the child, different age needs and the process adapted to the child. They must be trained to communicate with children of all ages and development.[38] The child’s opinion expressed through the representative should be given the same importance as if the child were expressing it directly; however, in this case, not age and maturity but the connection with the best interests should be determined, and the extent to which the explanation of the representative represents the best interests of the child should be determined.

Thus, the civil procedure legislation should establish the procedural safeguards necessary for the hearing of the child so that the hearing of the child’s views is voluntary and informative, and the opinion is duly taken into account.

Conclusion

Realizing the child’s right to be heard depends on following complex approaches. Without legally defined procedures, it becomes challenging to establish a uniform practice, and it is even more difficult to properly protect and ensure the child’s right to be heard in each specific case.

Considering the abovementioned, the Civil Procedure Code must define the child’s right to be heard with appropriate procedures and mechanisms. First of all, to prepare the child, the obligation of proper information of the child on the part of the authorized persons should be defined, the confirmation of which will be considered as the subject of proof of these persons. Also, there is a need for a specific definition of the legal mechanisms of the direct hearing, the selection of the appropriate environment and the persons present, at which time it is important to have more informality, both in the direct hearing space and in the dress of the responsible persons. It is important that the Code of Civil Procedure additionally considers the appropriate justification for disregarding the child’s opinion and the involvement of an expert in assessing age and development. If any of the necessary components for realizing the child’s right to be heard are not present, for example, the child is not provided with information as needed, the environment is not child-oriented, the expert’s assessment is not considered reliable, or the decision itself ignores the child’s opinion, there needs to be an appeal rule and procedure, which will be another and important lever for protecting the child’s right to be heard in civil proceedings. However, it should be noted that the appeal procedure should be fast and focused on protecting the child’s best interests.

Bibliography

Georgian language literature:

1. Shekhiladze, Kh. (2019). Prioritizing the best interests of minors in conflict with the law in the process of juvenile justice (criminal proceedings). Tbilisi.


2. Child-friendly justice. (2017). legislative study. UNICEF.

<https://www.unicef.org/georgia/media/1481/file/Legislative%20Analysis%20GEO.pdf

3. Guidelines 1-4 of the Committee of Ministers of the Council of Europe.

Foreign language literature:

4. Committee on the Rights of the Child. (2009). General Comment 12. The right of the child to be heard. Geneva. https://www.refworld.org/legal/general/crc/2009/en/70207.


5. Bosisio, R. (2012). Children’s Right to Be Heard: What Children Think. The International Journal of Children’s Rights. 20(1). 141-154. https://www.researchgate.net/publication/269837271_Children%27s_Right_to_Be_Heard_What_Children_Think.


6. Filauro, C., Lavazzo, S., Manni, V. (2016). The Right of the Child to be Heard: Challenge for Harmonization. Themis Competition 2016 Semi - Final B 2: International Judicial Cooperation in Civil Matters - European Family Law. <https://portal.ejtn.eu/PageFiles/14775/Written%20paper_Italy.pdf>


7. Jee Lee, S. A Child’s Voice vs. A Parent’s Control: Resolving a Tension between the Convention on the Rights of the Child and U.S. Law. Columbia Law Review. N3. Vol. 117, <https://www.columbialawreview.org/content/a-childs-voice-vs-a-parents-control-resolving-a-tension-between-the-convention-on-the-rights-of-the-child-and-u-s-law/?fbclid=IwAR2ei7j109Y04FZN9J0HbShima56H6ElaoSgVGIk8Uyvgax_fkDwl6OQoA>


8. Mol, C., Kruger T. (2018). International child abduction and the best interests of the child: an analysis of judicial reasoning in two jurisdictions. Journal of Private International Law. Vol. 14. Issue 3.


9. European Union Agency for fundamental rights. (2015). Child-friendly justice, perspectives and experiences of professionals on children’s participation in civil and criminal judicial proceedings in 10 EU Member States. <https://fra.europa.eu/sites/default/files/fra-2015-child-friendly-justice-professionals_en.pdf?fbclid=IwAR1JvYYDOd20VeCSM5MJF__lUZJcQ4SSXhaZ-kqSiwqnUGEa0_jAq57x2oQ>

10. Van Hooijdonk, E. (2016). Children’s Best Interests: A Discussion of Commonly Encountered Tensions. In: The Best Interests of the Child – A Dialogue Between Theory and Practice. Sormunen, M. (Ed.), Council of Europe. Indicated: Shekiladze, Kh. (2019). Prioritizing the best interests of minors in conflict with the law in the process of juvenile justice (criminal proceedings), according to Tbilisi. 2019. <https://www.tsu.ge/assets/media/files/48/disertaciebi4/Khatia_Shekiladze.pdf>


11. Friðriksdóttir, H. (2015). Relational Representation: The Empowerment of Children in Justice Systems, in: Child-Friendly Justice: A Quarter of a Century of the UN Convention on the Rights of the Child. Madmoudi, S., Leviner P., Kaldal, A., Lainpelto, K. (Eds.). Brill Nijhoff. Leiden, Boston. Indicated: Shekiladze, Kh. (2019). Prioritizing the best interests of minors in conflict with the law in the process of juvenile justice (criminal proceedings). according to Tbilisi. <https://www.tsu.ge/assets/media/files/48/disertaciebi4/Khatia_Shekiladze.pdf>

Normative material:

12. Civil Procedure Code of Georgia. (1997).


13. Children's Rights Code of Georgia. (2019).


14. UN Declaration on the Rights of the Child. (1959).


15. Convention on the Rights of the Child. (1989).

Judicial acts:

16. Judgment of the Supreme Court of Georgia on April 20, 2022. No. AS-791-SH-24-2022.


17. Judgment of the Supreme Court of Georgia dated October 8, 2019. No. AS-3658-sh-95-2019.


18. Judgment of the Supreme Court of Georgia of June 23, 2022. No. 716-2021.


19. Judgment of the Supreme Court of Georgia of December 20, 2021. No. A-3272-SH-78-2020.


20. Judgment of the Supreme Court of Georgia of June 23, 2022. N AS-716-2021.


21. Judgment of the Supreme Court of Georgia of December 7, 2021. No. AS-787-2021.


22. Judgment of the Supreme Court of Georgia of July 8, 2022. No. 173-2022.


23. Judgment of the Supreme Court of Georgia dated September 29, 2022. No. 1139-2021.

Decisions of the European Court of Human Rights:

24. N. Ts. and Others v. Georgia. 2016. § 20.


25. Petrov and X v. Russia. 2018. § 108.


26. Neves Caratão Pinto v. Portugal. 2021. § 138.

27. Katskeros v. Greece. 2022. § 59.


28. Zelikha Magomadova v. Russia. 2019. § 116.


29. Cînța v. Romania. 2020. §§ 53-54.


30. Havelka and Others v. the Czech Republic. 2007. § 62.


31. Haase v. Germany. 2004. § 97.

Footnotes

[1] UN Declaration on the Rights of the Child. (1959). <https://archive.crin.org/en/library/legal-database/un-declaration-rights-child-1959.html> [Last viewed: 09 March, 2024].

[2] Convention on the Rights of the Child. (1989).<https://www.coe.int/en/web/compass/convention-on-the-rights-of-the-child> [Last viewed: 09 March, 2024].

[3] Convention on the Rights of the Child. (1989). Article 12. <https://www.coe.int/en/web/compass/convention-on-the-rights-of-the-child> [Last viewed: 09 March, 2024].

[4] Committee on the Rights of the Child. (2009). General Comment 12. The right of the child to be heard, Geneva. 5. < https://www.refworld.org/legal/general/crc/2009/en/70207 [Last viewed: 09 March, 2024].

[5] Bosisio, R. (2012). Children’s Right to Be Heard: What Children Think. The International Journal of Children’s Rights 20(1). 141-154   <https://www.researchgate.net/publication/269837271_Children%27s_Right_to_Be_Heard_What_Children_Think >[ Last viewed: 09 March, 2024].

[6] Convention on the Rights of the Child. (1989). Article 12. <https://www.coe.int/en/web/compass/convention-on-the-rights-of-the-child> [Last viewed: 09 March, 2024].

[7] N. Ts. and Ohers v. Georgia. 2016. § 20.

[8] Committee on the Rights of the Child. (2009). General Comment 12. The right of the child to be heard. Geneva. 5. < https://www.refworld.org/legal/general/crc/2009/en/70207> [Last viewed: 09 March, 2024].

[9] Filauro, C., Lavazzo, S., Manni, V. (2016). The Right of the Child to be Heard: Challenge for Harmonization. Themis Competition 2016 Semi - Final B 2: International Judicial Cooperation in Civil Matters - European Family Law. 3. < https://portal.ejtn.eu/PageFiles/14775/Written%20paper_Italy.pdf > [Last viewed 09 March, 2024].

[10] Convention on the Rights of the Child. (1989). Article 3. <https://www.coe.int/en/web/compass/convention-on-the-rights-of-the-child> [Last Viewed 09 March, 2024].

[11]  Jee Lee, S. A Child’s Voice vs. A Parent’s Control: Resolving a Tension between the Convention on the Rights of the Child and U.S. Law. Columbia Law Review. N3. Vol. 117, < https://www.columbialawreview.org/content/a-childs-voice-vs-a-parents-control-resolving-a-tension-between-the-convention-on-the-rights-of-the-child-and-u-s-law/?fbclid=IwAR2ei7j109Y04FZN9J0HbShima56H6ElaoSgVGIk8Uyvgax_fkDwl6OQoAE> [Last viewed 09 March, 2024].

[12] Mol, C., Kruger T. (2018). International child abduction and the best interests of the child: an analysis of judicial reasoning in two jurisdictions. Journal of Private International Law. Vol. 14. Issue 3. 421-454.

[13] Guidelines of the Committee of Ministers of the Council of Europe 1-4. 19.

[14] Bosisio, R. (2012). Children’s Right to Be Heard: What Children Think, The International Journal of Children’s Rights 20(1),  141-154. <https://www.researchgate.net/publication/269837271_Children%27s_Right_to_Be_Heard_What_Children_Think> [Last viewed 09 March, 2024].

[15] Committee on the Rights of the Child. (2009). General Comment 12. The right of the child to be heard. Geneva.  5. <https://www.refworld.org/legal/general/crc/2009/en/70207> [Last viewed 09 March, 2024].

[16] Committee on the Rights of the Child. (2009). General Comment 12. The right of the child to be heard. Geneva. 5. <https://www.refworld.org/legal/general/crc/2009/en/70207> [Last viewed 09 March, 2024].

[17] European Union Agency for fundamental rights. (2015). Child-friendly justice, perspectives and experiences of professionals on children’s participation in civil and criminal judicial proceedings in 10 EU Member States. 40. <https://fra.europa.eu/sites/default/files/fra-2015-child-friendly-justice-professionals_en.pdf?fbclid=IwAR1JvYYDOd20VeCSM5MJF__lUZJcQ4SSXhaZ-kqSiwqnUGEa0_jAq57x2oQ> [Last viewer 09 March, 2024].

[18] Ibid.

[19] Petrov and X v. Russia. 2018. § 108. Neves Caratão Pinto v. Portugal. 2021. § 138. Katskeros v. Greece. 2022. § 59.

[20] Neves Caratão Pinto v. Portugal. 2021. § 138.

[21] Zelikha Magomadova v. Russia. 2019. § 116. Cînța v. Romania. 2020. §§ 53-54.

[22] Judgment of the Supreme Court of Georgia of April 20, 2022 in case No. A-791-SH-24-2022.

[23] Practical Guide to the Hague Convention. (2018). Tbilisi, 77-79, referred to: the judgment of the Supreme Court of Georgia of April 20, 2022 according to No. A-791-SH-24-2022.

[24] European union agency for fundamental rights. (2015). Child-friendly justice, perspectives and experiences of professionals on children’s participation in civil and criminal judicial proceedings in 10 EU Member States. 40. <https://fra.europa.eu/sites/default/files/fra-2015-child-friendly-justice-professionals_en.pdf?fbclid=IwAR1JvYYDOd20VeCSM5MJF__lUZJcQ4SSXhaZ-kqSiwqnUGEa0_jAq57x2oQ>[Last viewer 09 March, 2024].

[25] Ibid.

[26] Judgment of the Supreme Court of Georgia dated October 8, 2019. No. A-3658-SH-95-2019.

[27] Judgment of the Supreme Court of Georgia of April 20, 2022. No. A-791-SH-24-2022.

[28] The Code of Children’s Rights of Georgia. (2019). The right of a child to have his opinion heard and to participate. Article 8. Legislative Herald of Georgia.<https://matsne.gov.ge/ka/document/view/4613854?publication=4> [Last viewed 09 March, 2024].

[29] Judgment of the Supreme Court of Georgia on June 23, 2022. No. AS 716-2021.

[30] Judgment of the Supreme Court of Georgia of April 20, 2022.  No. AS-791-SH-24-2022.                                           

[31] Judgment of the Supreme Court of Georgia of June 23, 2022. No.AS 716-2021. Judgement of the Supreme Court of Georgia of December 20, 2021. No. A-3272-SH-78-2020. Judgment of the Supreme Court of Georgia of July 8, 2022. No.AS 173-2022. Judgment of the Supreme Court of Georgia dated September 29, 2022. No.AS 1139-2021.

[32] Havelka and Others v. the Czech Republic. 2007. § 62. Haase v. Germany. 2004. § 97. It is indicated: according to the judgement of the Supreme Court of Georgia of June 23, 2022.  No. AS-716-2021.

[33] Judgment of the Supreme Court of Georgia of December 7, 2021. No. As-787-2021.                                                  

[34] Civil Procedure Code of Georgia. (1997). Article 81 (3). Legislative Herald of Georgia. <https://matsne.gov.ge/ka/document/view/29962?publication=166> [Last viewed: 09.03.2024].

[35] Ibid.

[36] Friðriksdóttir, H. (2015). Relational Representation: The Empowerment of Children in Justice Systems, in: Child-Friendly Justice: A Quarter of a Century of the UN Convention on the Rights of the Child. Madmoudi, S., Leviner P., Kaldal, A., Lainpelto, K. (Eds.). Brill Nijhoff. Leiden, Boston. 56. Indicated: Shekiladze, Kh. (2019). Prioritizing the best interests of minors in conflict with the law in the process of juvenile justice (criminal proceedings). according to Tbilisi. 183. <https://www.tsu.ge/assets/media/files/48/disertaciebi4/Khatia_Shekiladze.pdf> [Last viewed 09 March, 2024].

[37] Van Hooijdonk, E. (2016). Children’s Best Interests: A Discussion of Commonly Encountered Tensions. In: The Best Interests of the Child – A Dialogue Between Theory and Practice. Sormunen, M. (Ed.), Council of Europe. 43. Indicated: Shekiladze, Kh. (2019). Prioritizing the best interests of minors in conflict with the law in the process of juvenile justice (criminal proceedings), according to Tbilisi. 2019. 183. <https://www.tsu.ge/assets/media/files/48/disertaciebi4/Khatia_Shekiladze.pdf> [Last viewed:09.03.2024].

[38] Child-Friendly Justice. (2017). Law Research. United Nations Children’s Fund. <https://www.unicef.org/georgia/media/1481/file/Legislative%20Analysis%20GEO.pdf> [Last viewer 09 March, 2024].