The opinions of a minor child on the subject of a dispute who has reached the age of ten, the participation of a teacher and (or) a psychologist is mandatory
According to Part 5 of Article 77 of the CPC, when conducting procedural actions to determine the opinion of a minor child on the subject of a dispute who has reached the age of ten, the participation of a teacher and (or) a psychologist is mandatory. A study of the cases showed that the courts generally comply with these requirements of the law. However, some courts allow violations of these requirements of the law. So, in the civil case on the claim of M. to E. on changing the child's place of residence and determining the child's place of residence with the father, the court interviewed a minor child who had reached the age of ten, without the participation of a teacher and (or) a psychologist (the Juvenile Court of Almaty). It should be noted that the presence of a representative of the guardianship authority during the child's interview does not exempt the court from fulfilling the requirements of part 5 of Article 77 of the CPC on the mandatory participation of a teacher and (or) psychologist in clarifying the child's opinion. There were also cases when the courts, resolving disputes related to the upbringing of children, did not find out the opinion of a minor child who had reached the age of ten at all. For example, the Juvenile Court of Astana, when determining the procedure for S.'s communication with minor children, in violation of article 62 of the Code, did not find out their opinion on communication with their father, despite the fact that they had reached the age of ten. In addition, a generalization of judicial practice has shown that courts, as a rule, do not clarify the opinion of children in cases where parents enter into an amicable agreement on the place of residence of the child, on the procedure for communicating with the child.
The opinions of a minor child on the subject of a dispute who has reached the age of ten, the participation of a teacher and (or) a psychologist is mandatory
Thus, the requirements of article 62 of the Code on taking into account the child's opinion are not fulfilled. In this regard, the Regulatory Resolution should clarify that when considering cases related to the upbringing of children, the courts should take into account the provisions of article 12 of the Convention on the Rights of the Child and article 62 of the Code, according to which a child, regardless of age, has the right to freely express his opinion on all issues affecting his interests, as well as to be heard during any judicial or administrative proceedings. Taking into account the provisions of these norms, the court may interview not only a child who has reached the age of ten, but also under the age of ten, directly at a court hearing in order to clarify an opinion on the issue under consideration, if the court concludes that he is able to formulate his views on issues affecting his rights. The survey should be conducted taking into account the age and development of the child in the presence of a teacher and/or psychologist, in an environment that excludes the influence of interested parties on him.
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