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Ukraine vs. Children: Whose side is the court on?

12.03.2009    source:
Kostyantin Reutsky

Ukraine’s laws do not help children to resolve their problems via the courts. Quite the contrary: the courts simply multiply these problems, deeply traumatizing children who are already in a difficult situation. International agreements which Ukraine has signed guarantee Ukrainian children a large range of rights however domestic legislation does not provide the mechanisms for exercising these rights.

This is the conclusion reached by the Kharkiv “Civic Alternative Foundation” when analyzing Ukrainian legislation.

As reported already, in December last year the Foundation checked five courts in Kharkiv and the Kharkiv region for their “child-friendliness”, i.e. how adapted they were to meet the specific needs of children who in some capacity needed to appear in court. The results of that study were less than cheering.

The author spoke with Hanna Khristova, specialist for the Civic Alternative Foundation and Assistant Professor of Law at that Yaroslav the Wise National Law Academy.

In civil proceedings cases involving children are family disputes, deciding where the chill will live, the role of one of the parents in the child’s upbringing, deprivation or reinstatement of parental rights, organizing parental visits, management by parents of a child’s property, annulment of adoption, etc. Clearly in such situations the child is already vulnerable and needs help. However with the law as it stands, there is no counting on such assistance. Quite the opposite, the conditions which a child ends up in during court proceedings deepen the trauma.

International standards stipulate that a child in court is entitled to be informed in accessible language about the course of the proceedings, about the ruling and its legal consequences; to choose a legal representative and make an application; to express their views at their own wish, and not only to be questioned as a witness. Yet Ms Khrystova believes that domestic legislation does not provide sufficient procedures to guarantee such rights in civil proceedings.

Children’s rights as regards court procedures are set down in the European Convention on the Exercise of the Rights of the Child.  Ukrainian judges are not very familiar with the document and quite often mix it up with the European Convention on Human Rights. The Convention on the Exercise of the Rights of the Child is much more recent (1996) and more specific in the list of procedures which regulate the rights of the child.  It includes the procedural rights of a child taking part in court proceedings. Ukraine ratified the Convention in 2006, however the necessary amendments to legislation have still not been made and the majority of judges don’t even know it exists. 

The process of bringing legislation into line with the Convention got off the ground only very recently with the adoption in its first reading by the Verkhovna Rada in February of a draft law “On amendments to some legislative acts regarding safeguarding children’s rights”. Ms Khrystova gives a positive assessment of the draft law and considers that it has taken into account the majority of factors needed for the proper implementation of the Convention.

Problems are not only in the court system. A system of juvenile justice is badly needed. Ms Khrystova believes that juvenile justice at present has been reduced to the context of criminal justice, providing only legislative regulation for children’s participation in criminal proceedings. Children’s procedural rights in civil proceedings are not safeguarded although most cases are specifically in this area. Legislation (Article 182 of the Civil Procedure Code) only envisages procedure for questioning a young child or underage witness. And even that is carried out very rarely. In the absence of clear procedure, judges are loath to complicate their lives and tend to get information needed for passing judgment from other sources. From the conclusions of care bodies, for example, although it is no secret that these conclusions are most often based on an emotional assessment of the situation and not infrequently run counter to the child’s best interests. They are simply easier and make no demands on the judge to sensitively question a child, taking into account the child’s age, finding special premises for the child to feel safe and at ease,  and ensuring the presence of a psychologist.

Yet a child is often not a witness but a party to the court proceedings and in such cases the article of the Civil Procedure Code is not even applicable, with the judge having no legal procedure available for questioning the child. It turns out that the rights of the child are not safeguarded via the relevant procedure which effectively presents their being exercised. In such cases few judges question a child and rely on information received from their legal representatives. Good if the person is definitely acting in the child’s interests yet it is not possible to hear the child’s own view.

A comprehensive approach is needed to change the situation. The Civic Initiative Foundation sees three main elements for achieving improvement.  Judges need to be made aware of the existence and content of the European Convention on the Exercise of the Rights of the Child. This is a minimum requirement which will not demand great expenditure from the state and will make a significant improvement possible. Parliament needs as a matter of urgency to eliminate the gaps in legislation and devote more attention to the training of judges who examine cases involving children.

(Slightly abridged)

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