THE POSITION OF THE CHILD IN LITIGATION PROCEEDINGS IN THE LEGAL MATTERS OF EXERCISE, DEPRIVATION AND RESTORATION OF PARENTAL RIGHTS

Abstract

Numerous entities in various procedural roles participate in the litigation proceedings for the exercising, denying and restoring of parental rights. The usual classification of litigation participants into subjects in a narrow, and subjects in a broader sense, may apply to such litigations. In the narrow sense, the subjects of the litigations are the litigation court and the litigants. In a broader sense, these are all persons who in any way participate in the litigation: interveners, counsel, witnesses, expert witnesses, interpreters, translators. Some of them participate in the proceedings to protect their own, and others to protect the rights and interests of others, and some are there to provide the necessary assistance in collecting the litigation material, present evidence, etc. Pursuant to the family laws, the capacity of a party in these proceedings, through the standardization of the right to the standing to commence an action, is assigned to the child, parents, custody authority and the public prosecutor. However, these are only potential, but not necessary participants in these proceedings. The proceedings may also be initiated and conducted without all the participants of the family-legal relation participating in them. As a rule, there is no participation of the child as a party, although, essentially, the child's right to live with parents and to have (adequate) parental care is the central theme of the proceedings. In all of these litigations, in fact, legal protection is afforded to the rights of the child arising from the parent-child relationship, namely from the rights and duties of the parent towards the child. This paper critically analyzes the national regulations governing the position of the child in litigation proceedings in the legal matters of exercising, denying and the restoring of parental rights, with a view to determine whether, and to what extent, the solutions contained in those regulations comply with the postulates of a fair trial, enable the exercise of a child’s right to participate in the proceedings that are to decide on the issues that affect him/her and provide effective protection of his/her procedural rights.