ПРАВО ДЕТЕТА НА МИШЉЕЊЕ И НАЈБОЉИ ИНТЕРЕС ДЕТЕТА СА ТЕЖИШТЕМ НА ПРИСТУПУ КОМИТЕТА ЗА ПРАВА ДЕТЕТА
THE RIGHT OF THE CHILD TO EXPRESS VIEWS AND THE BEST INTERESTS OF THE CHILD, IN LIGHT OF THE COMMITTEE ON THE RIGHTS OF THE CHILD APPROACH

Summary/Abstract: The Committee on the Rights of the Child has exerted considerable effort to demystify the best interests of the child. The Committee’s striving to determine the content of the child’s best interests using the child rights–based approach has particular importance. Such development brings the child’s right to express views in focus as the fundamental participative right that has played the key role in the evolution of the child’s legal status. The right of the child to express views constitutes a dynamic component of the child’s best interests growing with the evolving capacities of the child. As the enforcement of the right of the child to express views rests upon the alertness of adults, it is necessary to find mechanisms to implement this right. Otherwise, there is a risk of having child’s best interests out of children’s reach. The Committee insists upon assessing the child’s capability to form views on the merits of each case, as far as possible. In the Committee’s opinion, there is a rebuttable legal presumption that every child is capable of forming views taking into account even the nonverbal signs expressed by young children. The Serbian legislation imposes a ten-year age limit as a legal presumption for the child’s capability to form views. It does not mean the courts may embrace such legal solution assuming that a younger child is not capable of forming views. On the contrary, the competent court is obliged to justify in the judgment why it considers that the child is not capable of forming views or why those views could not be assessed. When it is assessed that the child is capable of forming views, those views will be given weight in accordance with the age and maturity of the child. Furthermore, one should have in mind that the view of the child is the element of highest ranking for assessment of the child’s best interests. For this reason, if the court deciding on the best interests of the child gives priority to some other elements over the child’s views, it must be particularly justified in the judgment.

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