IZRAŽAVANJE MIŠLJENJA DJETETA KAO ELEMENT PROCJENE „NAJBOLJEG INTERESA DJETETA“
RIGHT TO BE HEARD AS AN ELEMENT FOR DETERMINING „THE BEST INTEREST OF THE CHILD“

Summary/Abstract: Flexible and unspecified nature of the principle „the best interest of the child“ is considered to be both an advantage and disadvantage in legal doctrine. While the Article 3 of the Convention on the Rights of the Child clearly states the scope, field of application and subjects of protection, its content remains under the veil of abstractivity. In efforts to overcome these problems the Committee on the Rights of the Child proposes the introduction of seven elements for determining what constitutes „the best interest of the child“. The first among them, not accidentally, is the child’s right to be heard. This right from Article 12 of the Convention, together with „the best interest of the child“ has been upgraded to the level of Convention’s principle. What is special for this element (and the right) is that it emphasizes the inevitable role of the child in determining what is in his best interest by ensuring his direct participation in accordance with his capability to form his own views. Active participation and child’s right to be heard contribute, often as a decisive factor, to formulating what is in his best interest, together with other actors participating in this procedure in the context of other elements used for determining this principle. This ensures not only the formal participation of the child, but also the affirmation and respect of his individuality, needs and wishes as rights-bearing subject. In this way „the best interest of the child“ ceases to be a legal platitude and becomes a precisely determined and protected norm. The right to be heard can be protected by referring to „the best interest of the child“, but sometimes this reference can restrict this right as well.

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