Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185Depósito legal pp
197402ZU34
ppi 201502ZU4645
Vol.39 N° 71
2021
Recibido el 14/09/2021 Aceptado el 23/11/2021
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
Hu ma nas y So cia les, a tra vés de la di vul ga ción de los re sul ta dos lo gra dos por sus in ves-
ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
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nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
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Co mi té Edi tor
Eduviges Morales Villalobos
Fabiola Tavares Duarte
Ma ría Eu ge nia Soto Hernández
Nila Leal González
Carmen Pérez Baralt
Co mi té Ase sor
Pedro Bracho Grand
J. M. Del ga do Ocan do
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Joan López Urdaneta y Nil da Ma rín
Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas. Ins ti tu to de Es tu dios Po lí ti cos y De re cho Pú bli co
“Dr. Hum ber to J. La Ro che”. Ma ra cai bo, Ve ne zue la. E- mail: cues tio nes po li ti cas@gmail.
com ~ loi chi ri nos por til lo@gmail.com. Te le fax: 58- 0261- 4127018.
Vol. 39, Nº 71 (2021), 205-223
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Family Rights of the Child and Their
Legislative Support
DOI: https://doi.org/10.46398/cuestpol.3971.10
Vitalii M. Cherneha *
Liudmila V. Kuznetsova **
Oleh V. Fedorchenko ***
Olena A. Kaminska ****
Sergіі V. Bezpalko *****
Abstract
The objective of the study was to identify the legal mechanisms
for the protection of the family rights of the child and to outline the
main problems of their implementation. The child’s family rights
system was found to contain the child’s intangible basic rights,
which establish his or her legal status in the family. This system
includes the child’s right to life, name, citizenship, knowledge of
his parents, care of parents, coexistence with parents, preservation
of his identity and citizenship, free expression of his own views. It states
that the protection of the family rights of the child and the legal relations of
parents and children is based on four principles. It is determined that the
practical solution of issues related to the exercise of the family rights of the
child is regulated by international law, which makes it possible to resolve
issues related to the legal relationship between parents and children at the
inter-State level. It is concluded that perspectives on legislative support for
the family rights of the child demand further empirical research, as well
as a theoretical and methodological justication for determining the legal
mechanisms of their practical implementation.
* Candidate of Law Sciences /PhD, Аssociate Professor, Department of Business Law and Corporate
Law, Educational and Scientic Institute "Institute of law", State Higher Educational Institution Kyiv
National Economic University named after Vadym Hetman. ORCID ID: https://orcid.org/0000-0002-
9118-6562
** Candidate of Law, Head of the Department of Public and Private Law, Rauf Ablyazov Eastern European
University. ORCID ID: https://orcid.org/0000-0001-6810-1017
*** Candidate of History Sciences / PhD (History, head of the department of general education and socio-
humanitarian subjects, Kherson Faculty of Odessa State University of Internal Aairs. ORCID ID:
https://orcid.org/0000-0003-4288-5508
**** Candidate of History Sciences / PhD (History), Associate Professor, Department of general education
and socio-humanitarian subjects, Kherson Faculty of Odessa State University of Internal Aairs.
ORCID ID: https://orcid.org/0000-0001-5596-1720
***** Candidate of Law, Doctor of philosophy, Head of the Main Department of the National Police in
Ivano-Frankivsk region, Associate Professor of Department of Law, Ivano-Frankivsk branch of
The Open International University of Human Development «Ukraine». ORCID ID: https://orcid.
org/0000-0003-2168-060X
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Vitalii M. Cherneha , Liudmila V. Kuznetsova, Oleh V. Fedorchenko, Olena A. Kaminska y Sergіі
V. Bezpalko
Family Rights of the Child and Their Legislative Support
Keywords: family rights of the child; parental care; child development;
family responsibility; international treaties.
Los derechos familiares del niño y su apoyo legislativo
Resumen
El objetivo del estudio fue determinar los mecanismos legales para la
protección de los derechos familiares del niño y esbozar los principales
problemas de su aplicación. Se encontró que el sistema de derechos
familiares del niño contiene los derechos básicos intangibles del niño, que
establecen su estatus legal en la familia. Este sistema incluye el derecho
del niño a la vida, el nombre, la ciudadanía, el conocimiento de sus padres,
el cuidado de los padres, la convivencia con los padres, la preservación
de su identidad y ciudadanía, la libre expresión de sus propios puntos de
vista. Se establece que la protección de los derechos familiares del niño y
las relaciones jurídicas de padres e hijos se basa en cuatro principios. Se
determina que la solución práctica de las cuestiones relacionadas con el
ejercicio de los derechos familiares del niño está regulada por el derecho
internacional, lo que permite resolver cuestiones relacionadas con la
relación jurídica entre padres e hijos a nivel interestatal. Se concluye que
las perspectivas sobre el apoyo legislativo a los derechos familiares del niño
demandan de una mayor investigación empírica, así como una justicación
teórica y metodológica para determinar los mecanismos legales de su
implementación práctica.
Palabras clave: derechos familiares del niño; cuidado de los padres;
desarrollo infantil; responsabilidad familiar; tratados
internacionales.
Introduction
The attitude to the child, to his/her natural and subjective rights, is a
measure of the spirituality and humanity of society. The standard of living
and civilization of the state is determined by how children live in it, the
degree of public attention to them and their legal protection. Protecting the
rights of the child is one of the priorities for every country, as children are
not only the future of the state, but its present rst. Children are the least
protected part of the population, both socially and legally. Violations of the
family rights of the child are common in modern society, so the state needs
to create an eective legal mechanism to protect the child’s rights in the
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family.
The global economic crisis is having a signicant impact on children.
According to Eurostat, children are the age group with the highest risk of
poverty or social exclusion (Council of Europe, 2016). Although the EU
is one of the richest regions in the world, its children still live-in poverty,
with almost 9% of children under the age of 14 living in vulnerable families
(Council of Europe, 2018). Over the last twenty years, child poverty and
social exclusion have increased signicantly in some EU countries. In
general, younger children suer more from poverty than other age groups.
They are less prosperous than their peers but can reach their full potential
at a later age.
Thirty years ago, the main international agreement on childhood, the
UN Convention on the Rights of the Child, was adopted. Its provisions
stipulate that a child is every human being under the age of 18 unless he
or she reaches the age of majority under the law applicable to that person.
The child, due to his/her physical and mental immaturity, needs special
protection and care, including proper legal protection both before and after
birth (OHCHR, 1996). The full and harmonious development of a child is
ensured by his/her growth in a family environment, in an atmosphere of
happiness, love and understanding. The UN Convention on the Rights of the
Child proclaims the basic intangible rights of comprehensive development
of the child: family, social, physical, informational, cultural, economic. The
provisions of the Convention have helped to improve the lives of children
around the world, but still not all children can enjoy their childhood to
the full. Society requires not only states to full their obligations and take
measures to protect the rights of the child, but also parents to make a
commitment so that every child can enjoy all his/her rights.
In addition to the above-mentioned Concept, the family rights of the
child are reected in other Conventions of international organizations
(UN, Council of Europe, etc.). The chosen subject is topical because the
problems of ensuring, protecting and defending the rights of the child in the
family require a comprehensive approach to their solution, which should be
based on close cooperation of dierent actors: the state represented by the
relevant authorities, family, in which the child is brought up, and the child
himself/herself as an independent person, which is gradually developed
and socialized under the inuence of a number of factors.
Protecting the family rights of the child through the prism of
international standards has been the subject of research by many scholars.
Dan (2017) studied the legal protection of the family rights of the child.
Abella and Plant (2021) studied the issue of child custody through the prism
of the Convention on the Civil Aspects of International Child Abduction.
Rešetar (2018) researched the novelties of the Croatian legislation on the
protection of the rights of the child in divorce proceedings. Lucić (2021)
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Vitalii M. Cherneha , Liudmila V. Kuznetsova, Oleh V. Fedorchenko, Olena A. Kaminska y Sergіі
V. Bezpalko
Family Rights of the Child and Their Legislative Support
analysed international and European standards for compliance with
Croatian legislation on the institution of special child custody. Gerdts-
Andresen analysed the role and place of the child in the divorce proceedings
in Norway.
Churba (2021) studied parental authority and custody in cases of divorce
in Spain. Nurtjahyo (2021) dealt with the parents’ choice of religion in the
family as a manifestation of domestic violence against children in Indonesia.
Almusawi (2021) investigated the criminal liability of children and families
under Iraqi law. Rochaeti and Muthia (2021) studied the legal framework of
public oversight in the justice of children and parents in Indonesia. Rönsch
(2020) examined German civil and social law on the temporary deprivation
of parental care and the preventive protection of children’s rights.
Many scientic works deal with the problems of protection of family
rights of the child and their law enforcement. Thomson Henderson-Dekort
et al. (2021) and Alekseeva (2020) revealed the content of the best interests
of the child. Tabernacka (2021) considered mediation as an element of
protection of children’s rights. Nejaime (2020) reviews the constitutional
rights of biological and non-biological parents. Gerber et al. (2020)
examined the institution of legal representation of the child in foster care.
Abbasi and Mahmoodian (2020) studied the protection of children’s rights
in the context of reproductive technology legislation. Butryn-Boka (2018)
revealed the content of the international experience of implementing
spousal alimony obligations. Kašný (2021) researched the family upbringing
of children on the basis of religious and legal norms.
So, the aim of this study is to analyse the legal protection of family rights
of the child and outline the main problems of their enforcement. This aim
provides for the following objectives:
• reveal the content of the family rights of the child through the prism
of international legal norms in the eld of protection of the rights of
the child and the state policy of protection of the rights of the child.
• determine the classication of family rights of the child and the
principles on which the system of protection of the rights of the
child in the family is based.
• identify the main problems of law enforcement of family rights of
the child and suggest ways to solve them.
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1. Methods and materials
Empirical and theoretical methods of scientic knowledge were used to
study this topic. Empirical knowledge reects the object of study (family
rights of the child) from the standpoint of external relations (legislative
support, legal relations). Next, we consider scientic, legal, and practical
information on the protection of family rights of the child and reveal the
legal nature of the rights of the child in the family, their systematization and
classication through analysis, synthesis and logical approach. Theoretical
knowledge of the family rights of the child reects this subject of research
from the perspective of universal internal essential connections and
regularities which are covered by rational processing of empirical data. The
combination of these two methods generates an empirical interpretation
of the theory and theoretical interpretation of empirical data, as well as
provides comprehensive coverage of the legal protection of the rights of the
child in the family.
The main materials in this study are international legal acts: the UN
Convention on the Rights of the Child; Convention on the Civil Aspects of
International Child Abduction; European Convention on the Exercise of
Children’s Rights; Convention on Jurisdiction, Applicable Law, Recognition,
Enforcement and Co-operation in Respect of Parental Responsibility and
Measures for the Protection of Children; Convention on Contact concerning
Children; Convention on the Recovery Abroad of Maintenance; Convention
on the Recognition and Enforcement of Decisions Relating to Maintenance
Obligations; European Convention on Recognition and Enforcement of
Decisions Concerning Custody of Children and on the Restoration of Custody
of Children; European Convention on the Legal Status of Children Born
out of Wedlock; Council of Europe Convention on Protection of Children
against Sexual Exploitation and Sexual Abuse; European Convention on
the Adoption of Children (revised); Convention on Protection of Children
and Co-operation in Respect of Intercountry Adoption.
The information and empirical background of the study is statistics of
the UN and the Council of Europe, generalization of practical application of
international law in the eld of family rights of the child, practical activities
of social services for children’s rights, reference books, publications in
periodicals.
2. Results
The provisions of the UN Convention on the Rights of the Child guarantee
every child the right to have a name, know his/her parents and parental
care (OHCHR, 1996). The system of family rights of a child includes his/
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Family Rights of the Child and Their Legislative Support
her rights to life, name, and citizenship, to know his/her parents, parental
care, living with parents, preserving his/her identity and citizenship, free
expression of his/her own views (Figure 1).
Figure 1. Classication of family rights of the child
Source: author’s own development based on (OHCHR, 1996).
According to Article 6 of the UN Convention on the Rights of the Child,
every child has the inalienable right to life, necessary for physical, mental,
spiritual, moral and social development. The state ensures the maximum
possible survival and healthy development of the child (OHCHR, 1996).
The right to life belongs to the fundamental rights of the child, and no one
has the right to deprive him/her of it.
Children must be registered after birth and have the right to a name
and citizenship from birth. The state ensures the exercise of these rights in
accordance with the law (OHCHR, 1996, Article 7). Parents are obliged to
give the child a name and surname in accordance with current legislation
and religion, as well as to register the child with the appropriate government
agency.
Article 8 of the UN Convention on the Rights of the Child gives every
child the right to preserve his/her identity, including nationality, name and
family ties, as required by law, without unlawful interference. In the event
that the child is illegally deprived of part or all of its elements, the state
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undertakes to provide it with the necessary assistance and protection in
order to regain his/her identity as soon as possible (OHCHR, 1996).
Every child has the right to know his/her parents and the right to
their care (OHCHR, 1996, Article 7). More and more children are being
born out of wedlock, and the European Community has adopted the
European Convention on the Legal Status of Children Born out of Wedlock
to resolve legal disputes concerning such children. According to the
provisions of this Convention, maternity in respect of each child born out
of wedlock is based only on the birth of a child (Article 2), and paternity
can be conrmed or established by voluntary recognition or by court order
(Article 3) (WORLDLII, 2000). The rights of the parents of such children
have the same responsibilities to support the children as they would have
had born in marriage. Besides, the European Convention on the Legal
Status of Children Born out of Wedlock declares voluntary recognition of
paternity, which may be the subject of appeal only if the person who wishes
to recognize or recognized the child is not its biological parent (Article 4)
(WORLDLII, 2000).
Every year, more and more families become parents with the help of
reproductive technologies, which have recently become more developed
and eective. The use of such technologies has raised questions about legal
regulation in the context of parental rights.
According to the World Health Organization, reproductive rights
are based on the recognition of the fundamental right of all couples and
individuals to freely and responsibly decide the number, time and birth of
their children and the opportunity to have information and means to do
so (WHO, 2017). Reproductive rights are part of the human rights system
as dened by the Universal Declaration of Human Rights. Recognition of
maternity and paternity of children born of reproductive technologies in
dierent countries is special, states interpret the concept of reproductive
rights dierently and establish dierent levels of their legislative support.
Therefore, the practice of recognizing maternity and paternity through the
prism of reproductive rights is realised at the advocacy level.
Parental care is aimed at the development and raising of the child.
Parents at their own discretion choose methods that are sucient for the
comprehensive development of their children and are responsible for the
upbringing of the child. To establish the institution of parental responsibility,
the state creates a system of public authorities in the eld of protection of
children’s rights (including social protection of children, adoption, custody,
juvenile service, etc.). The establishment of such an institution of parental
responsibility is provided for in the Convention on Jurisdiction, Applicable
Law, Recognition, Enforcement and Co-operation in Respect of Parental
Responsibility and Measures for the Protection of Children (HCCH, 2002).
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Family Rights of the Child and Their Legislative Support
In general, the Convention covers issues of protection of children,
parental responsibility, custody, in particular, the right to determine
the child’s place of residence, as well as the right to communication,
care and similar institutions, placement of a child in a foster family or
custody, supervision by a public authority for a child in custody, as well
as taking measures to protect the person or property of the child (Article
3). However, the Convention does not apply to: the establishment or
appeal of a parent-child relationship; adoption decisions, pre-adoption
measures, or revocation or invalidity of adoption; name and surname of
the child; acquisition of full legal capacity; maintenance obligations; trust
or inheritance; social security; general government measures on education
or health care; measures resulted from punishable oenses committed by
children; decisions on the right to asylum and immigration (Article 4).
Caring for children requires both spiritual, moral, and material
resources. The provisions on the maintenance obligations of parents for the
development of a child are dened by the Convention on the Recognition
and Enforcement of Decisions Relating to Maintenance Obligations and the
Convention on the Recovery Abroad of Maintenance (HCCH, 1996; HCCH,
1998).
The provisions of the Convention on the Recognition and Enforcement
of Decisions Relating to Maintenance Obligations allow for the recognition
and enforcement of maintenance decisions made in other states, regardless
of whether the decision is made by a court or an administrative authority.
Maintenance obligations may arise from family relationships, maternity,
paternity, marriage, or family ties. The Convention applies to decisions on
maintenance between the recipient of alimony and the payer of alimony, or
the payer of alimony and the public authority that recovers funds paid to
the recipient of alimony (HCCH, 1996).
In order to facilitate the recovery of alimony in cases where the plainti
and the defendant reside in dierent states, the Convention on the Recovery
Abroad of Maintenance establishes the mechanism of transfer of the request
for recovery of alimony from the defendant, transfer of court decisions to
the contracting state in which the decision on execution shall be made.
Unfortunately, the manifestation of parental care can have negative
sides: domestic violence against children, sexual violence, bullying and
other manifestations. The UN Convention on the Rights of the Child obliges
states to take legislative, administrative, social and educational measures
to protect the child from all forms of physical and psychological violence,
abuse, lack of care, negligent and brutal treatment and exploitation,
including sexual abuse, by parents, legal custodians or any other person
who cares for the child (OHCHR, 1996, Article 19). In order to prevent
sexual exploitation and sexual abuse of children, including by parents,
and to combat these phenomena, the Council of Europe has adopted the
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Council of Europe Convention on the Protection of Children against Sexual
Exploitation and Sexual Abuse (Council of Europe, 2007).
Every child has the right not to be separated from his/her parents. The
state ensures that the child does not get separated with the parents against
his/her will, except when the competent authorities, in accordance with
a court decision, determine that such separation is necessary in the best
interests of the child under the applicable law and procedures (OHCHR,
1996, Article 9).
The child and his/her parents have the right to establish and maintain
regular contact with each other. Such contact may be limited or prohibited
only when it is necessary in the best interests of the child [10, Article 4].
Identifying general principles applicable to contact between children
and their parents, as well as other persons with family ties to children,
appropriate precautions, and safeguards to ensure proper contact and
immediate return of children after contact, as well as the establishment
of cooperation between the competent authorities is the subject of the
Convention on Contact concerning Children (OHCHR, 2003).
In order to ensure the well-being of the child in the event of the loss
of the family environment, the state undertakes to take measures for his/
her adoption and custody. The European Convention on Recognition
and Enforcement of Decisions concerning Custody of Children and on
Restoration of Custody of Children provides an opportunity to introduce
measures that ensure wide recognition and enforcement of decisions
regarding child custody, guarantee the rights of parents’ access to the
child, which is a normal consequence of the right to custody, ensure proper
resolution of problems that arise when children are illegally moved across
the state border; and establishes mechanisms for the restoration of custody
of children in cases of its arbitrary termination, which will enhance the
protection of children and the establishment of legal cooperation between
the competent authorities of the Contracting States (Council of Europe,
1980).
For the full and harmonious development of his/her personality, a child
must grow up in a family environment, in an atmosphere of happiness, love
and well-being. In the event of a loss of family environment, it is a priority for
each state to take appropriate measures to ensure that the child is brought
up in a family. The issue of child adoption, including interstate adoption,
is regulated by the European Convention on the Adoption of Children
(Revised) and the Convention on Protection of Children and Co-operation
in Respect of Intercountry Adoption. These international treaties establish
common principles, regulate the institution of adoption and dierences in
adoption processes and legal consequences, as well as promote guarantees
that interstate adoption is carried out in the best interests of the child and
in compliance with all fundamental rights recognized in international law
(Council of Europe, 2008; HCCH, 1993).
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Family Rights of the Child and Their Legislative Support
The Convention on the Civil Aspects of International Child Abduction
is aimed at protecting children from illegal movement (HCCH, 1993). It
establishes a mechanism to ensure the return of illegally removed or
detained children to their country of residence.
According to international standards, every child has the right to freely
express his/her views and to take part in court proceedings concerning
relevant family cases. Article 12 of the UN Convention on the Rights of the
Child says that States shall ensure that a child who is able to express his/
her views has the right to express those views freely on all matters aecting
the child, with due regard to the child’s age and maturity. That is, children
are given the opportunity to be heard in any judicial or administrative
proceedings concerning them, directly or through a representative or
appropriate body in the manner prescribed by the procedural rules of
national law (OHCHR, 1996).
The subject of the European Convention on the Exercise of Children’s
Rights is ensuring the best interests of children, that is support for their
rights, granting them procedural rights and facilitating the exercise of these
rights by ensuring that children are personally or through other persons or
bodies informed and allowed to participate in the consideration of judicial
proceedings in cases concerning them (Council of Europe, 1996, Article 1).
Family cases considered by a judicial authority are related to the exercise
of parental responsibility, such as the child’s place of residence and access
to the child.
According to the European Convention on the Exercise of Children’s
Rights, every child who has a sucient level of understanding is given the
right to: be informed and express his/her views during the proceedings
(Article 3); submit in person or through other persons or bodies a request
for the appointment of a special representative during the consideration of
cases concerning him/her by a judicial body (Article 4); request assistance
from the person of his/her choice in expressing their opinion (Article 5);
apply independently or through other persons or bodies for the appointment
of an individual representative, and in appropriate cases — a lawyer (Article
5); appoint his/her representative (Article 5); exercise some or all of the
rights of the parties in such a process (Article 5) (Council of Europe, 1996).
In the eld of family relations between children and parents, the state
plays a signicant role in ensuring the protection of the rights of the child in
the family and family upbringing of children with the possibility of their full
spiritual and physical development. The main tasks and guarantees of the
state to protect the family rights of the child are shown in Figure 2.
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Figure 2. Powers of the state to protect the family rights of the child.
Source: author’s own development based on (OHCHR, 1996).
The system of protection of family rights of the child and legal relations
of parents and children is based on four principles (Figure 3).
Figure 3. Principles of protection of family rights of the child
Source: author’s own development based on (OHCHR, 1996).
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Family Rights of the Child and Their Legislative Support
Non-discrimination of the child is guaranteed by Article 2 of the UN
Convention on the Protection of the Rights of the Child, which provides
that the state ensures all the rights of the child without any discrimination
regardless of race, color, sex, language, religion, political or other beliefs,
national, ethnic or social origin, property status, state of health and birth
of the child, his/her parents. The state takes measures to ensure the
protection of the child from all forms of discrimination or punishment
based on the status, activities, views or beliefs of the child and the child’s
parents (OHCHR, 1996).
The right to life, survival and development of a child, as well as the
protection and care of the child is guaranteed by the state, which is necessary
for his/her well-being, taking into account the rights and responsibilities of
his/her parents, custodians or other persons before the law. Such rights
are guaranteed through legislative and administrative measures (OHCHR,
1996, Article 3).
Respect for the views of the child is guaranteed by the state, which
provides free expression of his/her own views and participation in court
proceedings concerning the child (OHCHR, 1996, Article 6).
Taking into account the interest of the child is a priority for parenting
and a priority of public or private institutions in the eld of social security,
courts, administrative or legislative bodies (OHCHR, 1996, Article 3).
3. Discussion
The family rights of the child have clear and inalienable links with private
international law. The practical solution of issues related to the exercise of
family rights of the child is regulated by international treaties in the eld
of protection of family rights, which allow to address level issues related
to parental relations, parental responsibility, custody, adoption, as well as
recognition and enforcement of court decisions regarding the protection of
children’s rights at the interstate level.
Analysis of international legislation in the eld of protection of family
rights of the child, as Dan (2017: 56) notes, gives grounds to argue that
foreign experience is important because it demonstrates, rst of all, the
variability of legal models for ensuring, protecting and defending the
rights of the child used in dierent countries, as well as the eectiveness
or ineectiveness of their implementation in public practice. However,
according to the scientist, there are no ways of state and legal development
that are completely unied for dierent societies.
Analysing international agreements in the eld of family rights of
children, Gerdts-Andresen (2021a: 563-564) notes the inconsistency of
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their rules with the provisions of national law in terms of custody and
competence of social authorities to protect the rights of children. Abella
(2021: 352-353) and Uchitel et al. (2019: 19-20) also note the dierences
between international standards for custody and protection of children’s
rights with national provisions. Butryn-Boka (2018: 44) argues that the
institution of child support has its own characteristics in each country,
which are established by a combination of international and national
legislation in the eld of protection of children’s rights. The family right
of a child to know his/her parents is realized through the establishment of
paternity and maternity, which, according to Nejaime (2020: 261), is not
always consistent with constitutional rights and provisions of international
law.
The legislator must create conditions for the freedom to choose the
individual parenting of the child, which, according to Rönsch (2020), will
help maintain the child’s well-being, reduce domestic violence against the
child in the family and signicant child abuse. Appropriate conditions
for the upbringing and development of children, as Almusawi (2021)
emphasized, are based on the moral behaviour of parents, because in case
of their immorality, children become the object of criticism and harassment
by society for the actions of parents. According to Thomson (2021: 277-
279), the best interests of the child are a manifestation of social justice
and stability, the principles of which must be guaranteed for every family.
Realization of the best interests of the child, according to Henderson-
Dekort et al. (2021: 78-80), Alekseeva (2020: 48-49), should be based on
access to benets aimed at the full development of the child, and in case of
deprivation of the family environment — independent child’s participation
in the consideration of custody issues.
In order to properly protect the rights of the child in case of divorce of
parents, as Rešetar (2018:63-64) noted, the child must act as a separate
party in the divorce process, accompanied by a special custodian — a
representative of the child’s interests. Lucić (2021: 97-99) believes that the
powers of such a representative custodian of the child should be clearly
dened at the legislative level.
According to Gerdts-Andresen (2021b), to address the issue of custody
of a child in a divorce proceeding, the court must take into account the
opinion of a child above 7 years of age. And in order for the child’s opinion
to be impartial in deciding custody, Abella (2021: 351-352) oers to give the
child to the authorized body at his/her place of residence for the period of
the divorce process. Such relocation of a child, as the researcher argues, will
allow him/her to make his/her own choice of living with one of the parents
without pressure and will settle the conict between parents for custody of
the child, which may lead to kidnapping of the child by one parent in the
future (Gerdts-Andresen and Aarum Hansen, 2021).
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Jabbaz Churba (2021: 351-352) identies three reasons that impair the
rights of the child in the event of divorce: the lack of established rules on
custody of the child before the divorce of the parents; the divorce process
is a manifestation of hidden gender-based violence and gender stereotypes;
parental authority is a manifestation of conditional violence after divorce.
Tabernacka (2021:89-90) believes that the use of pre-trial proceedings
on illegal actions against children, will resolve conicts, understand the
child’s legal status and serve as an educational element in the awareness of
his/her own rights and responsibilities. According to Rochaeti and Muthia
(2021: 293-295), improving the protection of children’s family rights can
be achieved through public control in the form of public involvement in
litigation of children.
The inuence of religion on the upbringing of a child in the family can
be both positive and negative. Positive will be manifested in the case of
the implementation of religious canons in the norms of the laws on which
parents raise children, shape their worldview. In this case, as Kašný (2021:
19-21) argues, it is better to cover the legal background and structure of
the family from a religious perspective in the provisions of the articles of
regulations. Negative is manifested in the case of discordance between
parents in the choice of religion. In this case, Nurtjahyo (2021) believes
that when in religious families one parent changes his/her religion, it can
lead to conicts between parents and domestic violence against children.
According to Gerber et al. (2020), the institute of legal representatives of
the child in foster families should be introduced to improve the child’s stay
in foster care. Its introduction in comparison with the independent lawyer
will promote rapprochement of the child in foster families. The eectiveness
of such representatives of parenthood will depend on the establishment of
unity of representation, the accumulation of interdisciplinary practices and
the maximum attention paid to the child for his/her well-being.
Abbasi and Mahmoodian (2020) studied the protection of children’s
rights in the context of reproductive technology legislation, proposing to
establish a clear mechanism to protect the rights not only of parents who
became parents through such technologies, but also the child.
As a result of the doctrinal analysis of the specied problems of protection
of family rights of the child, we can note that researchers consider it
reasonable to further study of protection of the rights of the child in a family,
develop eective recommendations of their practical implementation
that would adjust the content and directions of the development of legal
mechanisms for the protection of the rights of parents and children.
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Conclusion
The system of protection of family rights of the child is a set of guarantees
of observing family rights of the child and their protection concerning
development and education of children in a family, enshrined in the
international and national regulations in the eld of protection of family
rights. The full development of the child is based on respect for the child’s
right to life, name, citizenship, knowledge of his/her parents, parental care,
living with his/her parents, preservation of his/her identity and citizenship,
and free expression of his/her views. Ensuring the family rights of the child
in the system of their protection is based on four principles: respect for the
views of the child, non-discrimination, taking into account the interests of
the child, as well as the children’s right to life, survival and development.
The practical application of the family rights of the child is regulated by
international treaties, which resolve issues related to the legal relationship
between parents and children and the activities of the state in the eld
of protection of the rights of the child at the interstate level. Problems
of ensuring the protection of family rights of the child are related to the
delimitation of rights and responsibilities of parents for the upbringing
and development of their children while guaranteeing the best interests
of the child, recognition of maternity/paternity, parental responsibility,
introduction of custody, adoption, child support and authorised
representatives of the child.
The prospect of further research is to develop mechanisms for the
enforcement of family rights of the child, aimed at educating the individual
in harmony and well-being of the family. Therefore, we see further
prospects in the empirical study, as well as theoretical and methodological
justication of eective legal mechanisms for implementing the principles
of protection of children’s rights in the family and the eectiveness of the
system of state bodies authorized to protect family rights of the child.
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