Establishment of the childʼs place of residence by the European Court of Human Rights

Abstract

OF HUMAN RIGHTS

The article is devoted to the generalization of the legal approaches of the European Court of Human Rights to solving the issue of determining the childʼs place of residence. The relevance of the topic of this study is due to migration processes, as well as the complication of legal regulation of family relations, in particular, in disputes arising during the determination of the childʼs place of residence. In such conditions, when resolving disputes by national courts about the determination of the childʼs place of residence, it is important to take into account the practice of the European Court of Human Rights in the relevant category of cases. The basis of this study is the hypothesis that, according to the legal position of the European Court of Human Rights, the principle of taking into account the best interests of the child should be applied when solving any issues related to the child. At the same time, the application of this approach cannot be reduced to some single way of solving the issue of establishing the childʼs place of residence with one of the parents – the mother or another relative, since in each specific case national courts have to clarify a number of issues. In order to verify the above hypothesis, the author reviewed a number of decisions of the European Court of Human Rights, which relate to the issue of determining the place of residence of a child, illegal movement of a child across the state border of the country of origin, etc. As a result of the conducted research, the proposed hypothesis was partially confirmed and it was found that although there really is no universal legal position of the European Court of Human Rights regarding the procedure for taking into account the principle of the best interests of the child, the study of such practice shows that the Court adheres to the position according to which national courts must carefully check all the circumstances of the case, involve, if necessary, pedagogical workers, psychologists in order to act in the best interests of the child.