engleski

Children’s Participation in Family Mediation: an Example of New Challenges for Non-Discrimination

Children’s rights are a universally important legal and social topic. The aim of this contribution was to examine how the scope of a particular right of a child – the right to express his/her opinion is to be tested in the specific family law field of mediation, evaluating the scope of the principle of non-discrimination. As follows from the analysis, legal documents guaranteeing the right of a child to participate in mediation are numerous and of significant importance, both on the global, as well as on regional, European level. Hence, the normative aspect in general does not pose any further issues. The burning question therefore is the aspect of implementation that is the concrete realisation of the right to express child’s own views and consequently, not to be put aside and be discriminated against on the basis of age and immaturity. Modern societies in general witness the increasingly binding concept of children’s rights. In regards the right to express his/her opinion, we have come a long way in only several decades. In the past, it was beyond our wildest imagination that a child should be guaranteed the right to express his/her views freely and that such an opinion should be relevant. Children were systematically discriminated against in this area, and this can be explained by almost complete ignorance of the fact that children are legal subjects and should be treated as such. This of course does not annul the need and the obligation of the family and even wider, of the state, to protect its weaker members, and children in particular, but the latter should be given the opportunity to have their voices heard in important family situations, such as the family mediation procedures. Nevertheless, the pendulum has slid in the other direction, sometimes also to another end. Hence, there are new issues on the horizon that have to be re-evaluated. It is time to try to stop the pendulum which slid from completely ignoring children’s views to comprehension of the right to express the child’s views as his/her duty or obligation, and to set the pendulum into balance, guaranteeing that children’s rights are reconceived in a holistic unity, being all to the welfare of the child.

protection of children, family law mediation, procedure

Rad je napisan u okviru međunarodnog projekta: Children's Rights Erasmus Academic Network (CREAN), oznaka 527696-LLP-1-2012-1-DE-ERASMUS-ENW.