Child Discernment, a Global Problem

Child Discernment, a Global Problem PhD. student Lenuța GIURGEA1 Abstract The United Nations Convention on the Rights of the Child (UNCRC) related to the rights of the child, on the one hand, in articles 12, 13, 14 and 15, regulates the freedoms of thought, opinion, conscience and religion, as well as association and free expression, on the other hand. Objectives: also, the holders of obligations for the child’s best interest have the duty to turn these rights into reality as a direct guarantee of respecting their interests. Therefore, the state has an obligation to create the possibility that no child is marginalized in the realization of these fundamental freedoms through all possible measures. Research methods: right compared to the position in Rep. Moldova, USA, Georgia, etc. in relation to legislative changes, jurisprudence with special regard to the cases resolved by the ECHR in the field, theoretical methods such as the comparative, historical, sociological method of course regarding the discernment of the child, because the methods used are strictly subordinate to the proposed purpose. Results and implications of the study: the Committee on the Rights of the Child (CRC), in its general comment no. 12 (2009), shows that the practices through which the contribution of children is required to rise to certain levels of honest and moral participation of children. Keywords: consent, child, responsibility, rights, hearing, ethics. JEL Classification: K14, K15, K33, K36, K38 DOI: 10.62768/PLPA/2024/13/1/19 Please cite this article as: Giurgea, Lenuța, „Child Discernment, a Global Problem”, Perspectives of Law and Public Administration 13, no. 1 (March 2024): 174-183 Article History Received: 9 October 2023 Revised: 14 December 2023 Accepted: 12 January 2024 1. Introduction From the legislative provisions of the EU, it follows without doubt that all children are free to express their opinions regarding themselves, in relation to their age and maturity 2. This rule applies generally and is not limited to specific regulations. There is also an interpretation of the CJEU in the sense of this provision in the Brussels II bis Regulation. The provisions of international law, i.e., in article 12 paragraph 1 of the United Nations Convention on the Rights of the Child (UNCRC)3, state the fact that a child who can have his own opinion also has the right to express it freely in all related issues. But, at the same time, the opinion, age, and maturity of the child must be taken into consideration. In addition, article 12 paragraph 2 of the UNCRC - on the rights of the child 4 provides that a child could be heard directly or through a representative or agency in any non-contentious or contentious proceeding with which it is related, in accordance with the procedural rules, respectively the provisions of national legislation. The United Nations Committee on the Rights of the Child has stated that all states that are parties to the Convention must directly ensure this right or adopt or revise laws to ensure that children can fully benefit from this situation. Moreover, it is imperative to ensure that the child receives all the necessary information and guidance sufficiently to make decisions that serve their best interest. The same institution must find that the child has the right not to use it; the way a child behaves in their Lenuța Giurgea - University of European Studies from Moldova, Republic of Moldova, . Brandstädter, K., Harms, U., and Grosschedl, J., Assessing System Thinking Through Different Concept Mapping Practices, „International Journal of Science Education”, vol. 34, no. 14, 2012, p. 2147–2170, https://doi.org/10.1080/09500693.2012.716549. 3 The document can be consulted onhttps://www.savethechildren.org.uk/what-we-do/childrens-rights/united-nations-convention-ofthe-rights-of-the-child, accessed on 04.11.2023. 4 Von Suchodoletz, A., Gestsdottir, S., Wanless, S. B., Mc Clelland, S. B., Birgisdottir, F., Gunzenhauser, C. and Ragnarsdottir, H., Behavioral self-regulation and relations to emergent academic skills among children in Germany and Iceland, „Early Childhood Research Quarterly”, vol. 28, no. 1, 2013, p. 62–73, https://doi.org/10.1016/j.ecresq.2012.05.003. 1 2 Perspectives of Law and Public Administration Volume 13, Issue 1, March 2024 175 own choice, and not an obligation on them. It is essential to note the importance of the subject addressed in the idea of conferring the child all the rights enjoyed by an adult, without discrimination, and at the same time placing the best interest of the child at the top of the list to be respected, as a principle of law. 2. The purpose of the research In administrative or judicial matters involving a child, children who are already 10 years old must be heard. But there is also the possibility that a child under this age can be heard under the conditions in which the competent authority considers it necessary to solve the problem. The obligation provided for in art. 264 of the Romanian Civil Code (C. civ.) was criticized as unconstitutional, as these provisions subject to criticism would make a child's right, namely, to be heard, a real diversion of meaning for him, turning it into an obligation. The author of this exception claimed that his son had in fact been tried several times, which constituted an abuse against him. According to this author of the exception of unconstitutionality, what he subjected to criticism would be contrary to the constitutional provisions found in art. 11 but also the provisions of international law and domestic law, such as the provisions related to the family of international treaties on human rights, as well as the rules from a child's perspective on the UN Convention on the Rights of the Child.5 The legislator specified that the minor must be heard in important matters related to the establishment of his best interest in relation to the establishment or change of the minor's domicile, the appointment of a guardian, the establishment of the family council, etc. Therefore, it is imperative to listen to the child in order to solve the problems that have arisen between the parents regarding the possibility of exercising parental authority in the light of the provisions of art. 486 Civil Code. In order to resolve disputes regarding the limitation of the child's right to maintain relations with other persons with whom he has family ties, such as grandparents - art. 494 Civil Code, in the case of a request to return the child to any person who holds it without the right provided for in art. 495 Civil Code, but in case of dissonance between the legal supporters of the child, regarding the establishment of his residence (as provided in the articles of the Civil Code) as for example in the case of changing the type of education or professional training, as is provided in art. 498, but also in all situations where the parental authority - article 506 of the Civil Code - is confirmed by the court (...truncated)