The child's opinion is taken into account in court. The child’s opinion – taking into account the child’s opinion when divorcing a marriage

The family and the state are interested in providing minors with various rights that contribute to the comprehensive development of the child. A fundamental right is to give the child the opportunity to express his or her opinion.

“Everyone is guaranteed freedom of thought and speech, opinion and belief,” proclaims Article 29 of the Constitution of the Russian Federation. This constitutional provision is reflected in Article 57 of the Family Code of the Russian Federation, which enshrines the child’s right to express his opinion.

Granting a minor the right to comprehensive development, respect for human dignity is aimed at the formation of a full-fledged individual, capable of living in a team, possessing qualities that are useful to society, family, and loved ones. Both the state and the family as a whole are interested in this. This right is realized, among other things, by providing the child with the opportunity to express his opinion. Article 57 of the Family Code of the Russian Federation (hereinafter referred to as the Family Code of the Russian Federation) says the following in this regard: “The child has the right to express his opinion when deciding in the family any issue affecting his interests, as well as to be heard during any judicial or administrative proceedings.”

Taking into account the opinion of a child over 10 years of age is mandatory, except in cases where this is contrary to his interests. In cases provided for by the RF IC (Articles 59, 72, 132, 134, 136, 143, 145 of the Family Code Russian Federation), guardianship and trusteeship authorities or the court can make a decision only with the consent of a child who has reached the age of 10 years. The duty to consider opinions is not the same as accepting the child's position. Taking into account the child’s opinion means that the parents’ opinion is adjusted taking into account the child’s opinion.

Providing a minor with the right to comprehensive development and respect for human dignity is aimed at the formation of a full-fledged personality, capable of living in a team, possessing qualities useful to society, family, and loved ones. Both the state and the family as a whole are interested in this. This right is realized, among other things, by providing the child with the opportunity to express his opinion. Article 57 of the Family Code of the Russian Federation (hereinafter referred to as the Family Code of the Russian Federation) says the following in this regard: “The child has the right to express his opinion when deciding in the family any issue affecting his interests, as well as to be heard during any judicial or administrative proceedings.”

Taking into account the opinion of a child over 10 years of age is mandatory, except in cases where this is contrary to his interests. In cases provided for by the RF IC (Articles 59, 72, 132, 134, 136, 143, 145 of the Family Code of the Russian Federation), the guardianship and trusteeship authorities or the court can make a decision only with the consent of a child who has reached the age of 10 years. The duty to consider opinions is not the same as accepting the child's position. Taking into account the child’s opinion means that the parents’ opinion is adjusted taking into account the child’s opinion.

The Convention on (hereinafter referred to as the Convention) also addresses this issue. Article 12 provides for a child who is able to formulate his or her own views, a guarantee that he should be ensured the right to freely express these views on all matters affecting him.

The child's views are given due weight in accordance with his age and maturity. By the way, this right implies not only the desire or unwillingness to drink milk with foam or something like that. The right to freedom of expression is the right to seek, receive and transmit information, to choose independently what to listen to and what to read. A child has the right to resolve any issue in the family that affects his interests, because he is an individual.

At what age is this possible? The convention says: when the child can formulate his own views. In fact, up to the age of 10, a child can express his opinion, it will be taken into account, but no one - neither the court nor the parents - is obliged to follow it. From the age of 10, in some cases consent is mandatory. Thus, without the consent of a child over 10 years of age, it is impossible to:

changing the surname and first name of the child (Article 59 of the RF IC);
restoration in parental rights(Article 72 of the RF IC);
adoption of a child (Article 132 of the RF IC);
changing the surname, name and patronymic of a child upon adoption (Article 134 of the RF IC);
registration of adoptive parents as parents adopted child(Article 136 of the RF IC);
changing the surname, patronymic and first name of the child when the adoption is canceled (Article 143 of the RF IC);
placement of a child under guardianship and trusteeship (Article 145 of the RF IC).

As a rule, in conflict situation The child’s opinion is determined by the guardianship and trusteeship authority. If the court decides to identify the opinion of a minor by questioning directly at the court hearing, then first find out from a specialist of the guardianship and trusteeship authority whether presence in court will have an adverse effect on the child. The survey is carried out taking into account the age and development of the child in the presence of a teacher, in an environment that excludes the influence of interested parties. During the survey, it becomes clear whether the child’s opinion was influenced by one of the parents or another interested person, whether the child is aware of his own interests when expressing this opinion and how he justifies it, etc.

Of course, in practice everything is not so rosy. In some cases, when the opinion of a child who has reached the age of ten years was revealed by the guardianship and trusteeship body and this circumstance was indicated in the conclusion of the said body, the case materials at the same time did not contain information about which specific representative of the guardianship and trusteeship body, when and under what circumstances this child’s opinion was clarified.

This situation occurred when resolving the dispute by the Guryevsky District Court Kaliningrad region according to the claim of K. (the child’s father) to X. (the child’s mother) to determine the place of residence of a minor (born in 1996). The court decided to satisfy the claim and determine the place of residence of the minor child together with his father, taking into account the recognition of the claim by the defendant and the conclusion of the guardianship and trusteeship authority, according to which, based on the results of an examination of the living conditions of the parties, as well as the opinion of the minor himself, who expressed a desire to live with his father , determining the child’s place of residence with his father will be in accordance with his interests. At the same time, according to the certificate of the Kaliningrad Regional Court based on materials of generalization judicial practice Neither from the acts of inspection of living conditions, nor from the acts of visiting the child does it follow that the representative of the guardianship and trusteeship body sought out the child’s opinion. The minutes of the court session also do not contain any explanations on these circumstances, and therefore, as the Kaliningrad Regional Court indicated, the validity of the conclusion of the guardianship and trusteeship authority with reference to the opinion of the child is essentially not confirmed by anything. Thus, there is reason to believe that there was a violation of the requirements of Art. 57 RF IC.

The child’s right to express an opinion is limited, violated, and the expressed opinion is often distorted or misinterpreted. There are at least three reasons for this:

judges (usually women) have a negative attitude towards the child’s participation in trial;
as a consequence, there is a lack of established judicial practice;
the passivity of those who should be most interested in finding out the child's true opinion.
That is, parents.

Thus, the child’s right to express his opinion in the context of family law represents the recognition of the child’s right to vote, in some cases - advisory, in others, directly specified in the law - decisive. Fixing the child’s right to express his opinion in the form general norm, the legislator does not connect the emergence of this right and the possibility of its implementation with the child reaching a certain age. Therefore, the degree to which a child’s views or opinions are taken into account when making a decision specific issue cannot and should not depend on his age, despite the fact that the legal significance of the opinion expressed by him varies depending on the child, as a rule, increasing with his age.

Mikhail Krasilnikov

The child has the right to express his opinion when deciding any issue in the family that affects his interests, as well as to be heard during any judicial or administrative proceedings. Taking into account the opinion of a child who has reached the age of ten is mandatory, except in cases where this is contrary to his interests. In cases provided for by this Code (Articles 59, 72, 132, 134, 136, 143, 145), the guardianship and trusteeship authorities or the court can make a decision only with the consent of a child who has reached the age of ten years.

Comments to Art. 57 RF IC

According to Art. 12 of the Convention on the Rights of the Child, a child who is capable of forming his own views must be ensured 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. Thus, the commented article develops the provision of Art. 12 of the Convention on the Rights of the Child.

The right to express his opinion is given to the child, since he, like his parents, has the right to make decisions. active participation in resolving issues directly related to his life and interests. The child has the right to bring to the attention of parents and other family members his opinion on any issue related to his interests in any form accessible to him. The Family Code of the Russian Federation in the commented article does not establish at what age the child’s opinion should be taken into account, however, as mentioned above, the Convention on the Rights of the Child stipulates that such a right is granted to a person who is able to formulate his own views. Moreover, the child's views should be given due attention in accordance with the age and maturity of the child. Consequently, a child has the right to express his opinion when he reaches a certain level of development that allows him to express his own point of view on a particular issue that directly concerns his interests (choice educational institution, sports section, etc.). From this moment on, the child has the right to express his opinion not only within the family circle, but he has the right to be heard during any judicial or administrative proceedings. For example, a child has the right to express his opinion when considering in court a case regarding the child’s place of residence when his parents live separately (see commentary to Article 65 of the RF IC).

Depending on the age of the child, the law gives different legal meaning to his opinion. According to the commented article, taking into account the opinion of a child who has reached ten years of age is mandatory. Taking into account or rejecting the opinions of children under ten years of age is the prerogative of the parents. A child at this age does not yet have sufficient maturity and the ability to realize his interests, although sometimes he is able to formulate his opinion, therefore parents, and in cases established by law, guardians and officials, are not required to motivate their disagreement with the child’s opinion. At the same time, this does not mean that if a child has reached ten years old, one should necessarily agree with his opinion, since even at this age the child, although he can formulate his opinion, may not be fully aware of his interests. For example, a child may well ask to be allowed to live with an alcoholic parent who does not forbid him to drink beer. In this regard, taking into account the child’s opinion means that it will be heard and, if it contradicts the interests of the child, rejected with reason.

New edition of Art. 57 RF IC

Commentary on Article 57 of the RF IC

The child has the right to express his opinion when resolving any issue in the family that affects his interests. The child's views are also taken into account in any judicial or administrative proceedings. The child's opinion should be general rule be expressed through direct communication, but it is also possible to use technical means.

It should be borne in mind that the legislator does not make this right of the child absolute, since it will be taken into account only if his interests coincide with the interests that are socially recognized and necessary for him.

Taking into account the opinion of a child who has reached the age of ten is mandatory, except in cases where this is contrary to his interests. In cases provided for by the Family Code (Articles 59, 72, 132, 134, 136, 143, 154), the guardianship and trusteeship authorities or the court can make a decision only with the consent of a child who has reached the age of ten years.

The law does not indicate the minimum age at which a child has this right. The UN Convention on the Rights of the Child (Article 12) stipulates that this right is granted to a child who is able to formulate his own views. Consequently, as soon as the child reaches a sufficient degree of development to do this, he has the right to express his opinion when deciding in the family any issue that affects his interests, in particular when choosing an educational institution, form of education, etc. From that time on, he has the right to be heard in any judicial or administrative proceedings that directly concern him and affect his interests.

By this issue The Supreme Court in paragraph 6 of the Resolution of the Plenum Supreme Court RF dated May 27, 1998 No. 10 “On the application of legislation by courts in resolving disputes related to the upbringing of children” noted the following: if, when resolving a dispute related to the upbringing of children, the court comes to the conclusion that it is necessary to question the minor in court in order to clarify his opinion on the issue under consideration (Article 57 of the Family Code of the Russian Federation), then you should first find out the opinion of the guardianship and trusteeship authority about whether his presence in court will have an adverse effect on the child.

The survey should be carried out taking into account the age and development of the child in the presence of a teacher, in an environment that excludes the influence of interested parties on him.

When interviewing a child, the court needs to find out whether the child’s opinion is a consequence of the influence of one of the parents or other interested parties on him, whether he is aware of his own interests when expressing this opinion and how he justifies it, and similar circumstances.

Another comment on Art. 57 Family Code of the Russian Federation

1. Although the presence of a child in court is undesirable, this can no longer be a basis for preventing the child from freely expressing his opinion in court, which would be gross violation requirements of Article 57 of the RF IC. The court must assist the child in every possible way in realizing his rights. So, in order to provide the child with the opportunity to truly freely express his opinion, parents and other persons interested in the outcome of the case must be removed from the courtroom.

2. Article 57 of the RF IC defines the age from which taking into account the child’s opinion is mandatory, and in some cases his consent is required (for example, to change a name in accordance with Article 59 of the RF IC). However, Article 57 of the RF IC does not establish a minimum age for a child, from which he has the right to express his opinion. Does this mean that one year old child entitled to stand trial? From the standpoint of common sense - hardly.

The answer to this question can be given by the new Constitution of the Russian Federation and the Convention on the Rights of the Child of 1989. Paragraph 1 of Article 12 of the Convention provides for the obligation of each of the participating states to ensure that a child who is able to formulate his own views has the right to freely express them on all issues affecting the child and the child's views should be given due weight in accordance with the child's age and maturity. Article 13 of the Convention, also aimed at ensuring the child’s free expression of his opinion, provides an exhaustive list of grounds for restricting this right.

Article 57 of the RF IC should be applied taking into account these norms of the Convention. Only the child's inability to formulate his opinion can be considered as a basis for restricting the right to express it. As a matter of fact, we have to talk about the limitation of rights here very conditionally, since an opinion can be expressed in court only through its oral or written presentation. It follows that as long as the child lacks the ability to formulate his opinion, the right to express it in court does not arise. It also seems that the child’s consciousness should also include the purpose of expressing his opinion.

How to determine whether a child is able to formulate his own opinion? It seems that the main objective criterion when resolving this issue is the age of the child. Upon reaching a certain age, the child should be assumed to be capable of this. Taking into account the age criterion is possible by applying, by analogy, Article 28 of the Civil Code of the Russian Federation, since the admissibility of applying civil legislation to family relations by analogy, it is provided for in Article 5 of the RF IC (see commentary to it).

According to Article 28 of the Civil Code of the Russian Federation, upon reaching 6 years of age, a child has the right to independently carry out certain types of transactions (for example, small household transactions). It is reasonable to assume that, at least from the same age, the child is able to formulate his opinion about which parent he would like to live with, while being aware of to whom and for what purposes he is expressing such an opinion. The validity of such an opinion and its compliance with the interests of the child are assessed by the court.

Therefore, from the age of six, a child must be admitted to a court hearing if he, orally or in writing, independently or through one of the participants in the process, informed the court of his desire to express own opinion on a matter concerning him.

If there is reasonable doubt about the ability of a particular child aged six years or more to formulate and express his or her opinion, an appropriate forensic examination. If, as a result of the examination, it is determined that this child unable to formulate an opinion, this should be reflected in the decision of the case. When hearing the child’s opinion, a qualified teacher must be present who, with the permission of the presiding judge at the court hearing, can ask the child questions in the manner prescribed by Article 173 of the Code of Civil Procedure for questioning a minor witness.

However, it should be borne in mind that the interrogation of a minor witness and the child’s expression of his opinion are completely different legal institutions. The procedure for a child to express an opinion in civil procedural legislation is not defined, so mistakes are often made here. Inviting a child to express an opinion is often reflected in court records as calling him or her for questioning as a witness. Such a violation may serve as grounds for reversing the decision due to a significant violation of procedural law. The need to interrogate a minor as a witness is determined by the court, while the child’s expression of his opinion is his personal non-property right, exercised by him on his own initiative.

It is possible that in more early age the child is able to express his opinion. An a priori refusal to express an opinion in this case would be unlawful. In difficult cases, the court, as in the case of a child over six years of age, has the right to order a forensic psychiatric or forensic psychological examination to clarify the issue of the child’s ability to independently formulate his opinion.

3. Neither parents nor anyone else has the right to exert unlawful influence on a child with the aim of forming or distorting his real opinion or forcing him to express it. Expression of opinion must be free. But exerting pressure should not be confused with explaining to the child his rights. This is the right and responsibility of parents, and, in necessary cases, of guardianship and trusteeship authorities (Articles 8, 63, 64 of the RF IC).

4. If, when resolving a dispute related to the upbringing of children, the court comes to the conclusion that it is necessary to question a minor at a court hearing in order to find out his opinion on the issue under consideration (Article 57 of the RF IC), then the opinion of the guardianship and trusteeship authority should first be ascertained about that whether his presence in court would have an adverse effect on the child. The survey should be carried out taking into account the age and development of the child in the presence of a teacher, in an environment that excludes the influence of interested parties on him.