Child's interests in a dispute on who a child should live with: what should be taken into account?


The existing case law of the European Court of Human Rights shows that deciding a matter about what is in the best interests of a child is key to resolving the child residence dispute.

Sofiya Law Firm associated partner Ms Victoriia Varienikova managed to satisfy the court that staying with the mother would be in the best interest of the child when representing her client in a child residence dispute. The relevant judgment has come into legal force.

When determining the best interests of a child in each individual case, one should consider the following two aspects: first, it is necessary to ensure that the child continues to keep in touch with the family (unless the family is difficult one), and, second, the child should be provided with an opportunity to develop in safe and undisturbed environment.

'It is those criteria of the ECHR and the provisions of relevant national law that we relied on when building our tactics to defend the interests of the child, as supported by a number of relevant evidence,' Ms Varienikova said.

The rationale behind the primary claim filed by the child's father and his attorney was that the child's mother was permanently residing out of Ukraine, and that the child's grandmother and aunt who cared about him. Another argument was that his daughter who had allegedly lived with the plaintiff for some time got on with his new wife.

However, the opposite is supported by evidence Sofiya Law Firm associated partner submitted to the court. The daughter indeed lived for some time with her farther because her mother worked in another city. However, the client took the daughter back after a domestic violence incident. The women had been working abroad for some time, but re-launched her business in Ukraine after the farther refused to give his consent for the child traveling abroad.

'We further strengthened our position by a psychologist's opinion pointing out that the child is more friendly to the mother and by testimonies made by the grandmother and the aunt pointing to the father's misconduct in his communications with the child,' the attorney for the mother pointed out. - In addition, when deciding on the merits the court compared the living and financial conditions of both parents.'

Principle 6 of the Declaration of the Rights of the Child says that the child, for the full and harmonious development of his personality, needs love and understanding. He shall, wherever possible, grow up in the care and under the responsibility of his parents, and, in any case, in an atmosphere of affection and of moral and material security; a child of tender years shall not, save in exceptional circumstances, be separated from his mother.

'When the parties are equal in their rights and opportunities, the court should take into account the child's attachment to each of the parents and other special aspects (in the case at hand, such aspects included misconduct of the father in respect of the mother. We therefore are of the opinion that the court was right to dismiss the father's claim and to allow our counterclaim,' Ms Varienikova explained.



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