The amendments made to the Family Code, which came into force on January 18, 2018, have given particular importance to the issue of hearing the opinion of the child on key issues related to them. Previously, it was only stipulated to hear the opinion of a child who had reached the age of ten, but with the amendments, this age limitation for expressing the child's opinion has been removed.The fact is that the previous regulations that conditioned the exercise of the right to express an opinion on a certain age contradicted the UN Convention on the Rights of the Child of 1989. The implementation of the right discussed in this document is conditioned not by the fact of having reached a certain age, but by the child's ability to form views. And since a child can have an attitude towards a particular issue, phenomenon, or person related to their interests and can express it even non-verbally (through images, gestures, etc.), the term "views" is used in the discussed international document, unlike the term "opinion" enshrined in national legislation.
Returning to the regulations of national legislation, it should be noted that the child's right to express their opinion is enshrined in Article 44 of the Family Code of the Republic of Armenia, and as a result of the amendments, the legal norm included in it is formulated as follows: The child has the right to be heard on any issue affecting their rights and interests and to express their opinion in the family, in court, and in other bodies. The child has the right to freely express their opinion, which, depending on the child's age and level of maturity, is taken into account in matters concerning them.
The legal norms requiring consideration of the child's opinion based on their age are provided in the second part of Article 44, the third part of Article 46, Article 121, the sixth part of Article 123, and Article 132 of the Family Code of the Republic of Armenia.
Accordingly, considering the opinion of a child who has reached the age of ten is mandatory in matters related to the child's freedom of conscience, participation in certain activities, refusal to receive extracurricular education, living with one of the parents, communicating with relatives, changing their name, being adopted, and, in the case of being adopted, changing their name, surname, or patronymic.
As evidenced by the changes made in the legal regulations, the legislator, while removing the age limitation for expressing an opinion, has nevertheless established legally differentiated consequences for children over the age of ten. The opinion of a child who has reached the age of ten is the basis for decisions concerning the child's interests in all cases, provided that it does not contradict their best interests. As for the opinion expressed by a child under the age of ten, it is of a facultative nature and is assessed by the decision-maker in conjunction with other relevant circumstances.
However, which children under the age of ten should have their opinions heard remains a contentious issue.
It is noteworthy that from the formulations "to be heard" and "to express an opinion" enshrined in national legislation, it can be concluded that the legislator has reserved the right to express an opinion for children who have reached a certain level of physiological development.
In assessing the sufficient maturity for exercising the right to express oneself, the requirements of the European Court of Human Rights are relevant.
Recently, the ECHR examined the case of Petrov and X v. Russia, in which the national courts' practice of not hearing the child was deemed unlawful. The issue was that when examining a dispute regarding the determination of the residence of a minor child, the national courts of the Russian Federation did not take measures to ensure the child's right to express themselves, based on the fact that the child was only two years old at the time of the proceedings. Notably, the national courts' practice of not hearing the child was justified by the Respondent Government based on the child's age and the logical impossibility of asking them questions. Additionally, in its arguments, the government referenced the case of Sahin v. Germany and cited the fact that in that case, the child was also not heard in the national courts, a circumstance that the European Court had deemed lawful.
In response to the Government's arguments, the European Court noted that in the case of Sahin v. Germany, the Court reached such a conclusion based on the child's age and insufficient maturity, and the basis for such a conclusion was the expert's opinion present in the case. It is significant that the expert had taken measures to ascertain the child's attitude towards the father seeking visitation through photographs and the reactions to them.
In the case of Petrov and X v. Russia, however, the Court noted that the national courts had failed to clarify such a crucial question for resolving the case as the child's attitude towards each of the parents. Furthermore, there was a lack of evidence that would confirm the impossibility or impracticality of hearing the child in court. Considering these and other circumstances, the ECHR (in the person of the Chamber) noted a violation of the right enshrined in Article 8 of the Convention.
Thus, according to the practice established by the ECHR, the conclusions regarding the child's ability to express their views should not be based on the assumptions or logical conclusions of the decision-maker, but rather on the opinions of professionals working with appropriate methods. In other words, in each case, regardless of the child's age, the child's right to express themselves should be ensured with the involvement of a relevant specialist, which will allow for a conclusion regarding the appropriateness or possibility of hearing them before judicial or administrative bodies.