LEXONOMICA 
Vol. 14, No. 2, pp. 213–236, December 2022  
 
https://doi.org/10.18690/lexonomica.14.2.213-236.2022 
© 2022 University of Maribor, University Press  
 
 THE PRINCIPLE OF PRIMARY 
CONSIDERATION OF THE BEST  
INTERESTS OF THE CHILD IN CIVIL 
PROCEDURE IN UKRAINE 
  
Accepted  
4. 7. 2022 
 
Revised 
10. 8. 2022 
 
Published 
1. 12. 2022 
FURSA SVITLANA YAROSLAVIVNA,1  
BORDIUH TETIANA OLEKSANDRIVNA,2  
FURSA YEVHEN YEVHENOVYCH3 
1 Institute of Law of the Taras Shevchenko National University of Kyiv, Department 
of Notary, Enforcement Process and Advocacy, Prosecution, Judiciary, Kyiv, 
Ukraine 
fursa_2003@ukr.net 
2 Ukraine Supreme Court, Department of Analytical and Legal Work of the Supreme 
Court, Kyiv, Ukraine 
tatiana.bordiug@gmail.com 
3 Ukraine Republic, Ministry of Foreign Affairs, Department General for Consular 
Service, Kyiv, Ukraine. 
fursamfa@gmail.com 
 
CORRESPONDING AUTHOR 
fursa_2003@ukr.net 
 
Keywords 
child,  
minors,  
the best interests of 
children,  
the needs of the child, 
civil procedure, 
 the determination of the 
best interests of children, 
the determination of the 
child's place of residence, 
considering the child's 
opinion 
Abstract The article examines approaches to understanding 
the terms "children's interests" and "the best interests of 
children" in scientific theory and law enforcement practice in 
Ukraine. The authors summarise the experience of Ukrainian 
judicial practice in observing the principle of primary 
consideration and ensuring the best interests of the child. This 
experience is being studied on the example of resolving civil 
cases on determining the place of residence of a child for the 
most part. The authors make suggestions concerning the 
application of Article 3 of the UN Convention on the Rights 
of the Child. The authors propose to understand the principle 
of primary consideration and ensuring the best interests of 
children as the use of the best possible ways and means of 
resolving cases with the participation of children, which would 
meet their contemporary interests, consider their existing 
needs along with the perspectives for the future to the greatest 
extent possible. 
 
214 LEXONOMICA.   
 
1 Introduction 
 
Children require special attention from adults, additional care, and guardianship due 
to their age and psychological characteristics. Therefore, national and international 
law determines the protection of children's rights as a priority. Children are the 
future of every nation, and therefore efforts made to create the right conditions for 
developing children and ensuring their rights and interests directly affect the future 
we build. 
 
Recent sociological and psychological studies indicate a higher level of mental 
development in modern children (Burnsand and Gottschalk, 2019). Accordingly, 
this tendency also affects the range of their needs and interests – increase and expand 
them. Therefore, taking into account these factors and processes, as well as realising 
the importance of the challenges that society faces today in the field of legal 
regulation of the protection of children's rights and ensuring their best interests, we 
decided to focus on the research on the interests of children. 
 
The primary consideration and ensuring the best interests of the child is recognised 
as the main principle of the protection of children, established by Article 3 of the 
UN Convention on the Rights of the Child, which states, 
 
In all actions concerning children, whether undertaken by public or private social 
welfare institutions, courts of law, administrative authorities or legislative bodies, the best 
interests of the child shall be a primary consideration (UNGA, 1989). 
 
Although scientists are studying the interests of children on the national (Olkhovyk, 
2006; Onishchenko, Lvova, Sunegin, 2013; Petrochko, 2014) and international (Van 
Bueren, 2006; Kruk, 2015; Martinson, 2016; Leloup, 2019: 50–68; Krutzinna, 2022: 
120-145) levels nowadays, there is still uncertainty as to what should be considered 
the best form of interest of the child? Consequently, the next question arises, "What 
should be understood as a primary consideration and ensuring the best interests of 
the child?" It is uncertain. Therefore, we will try to answer these questions in this 
article in the context of civil procedure and the adoption of court decisions in civil 
cases in Ukraine in compliance with the principle of primary consideration of the 
best interests of children. 
Fursa S. Yaroslavivna, B. Tetiana Oleksandrivna, Fursa Y. Yevhenovych: The Principle of 
Primary Consideration of the Best Interests of the Child in Civil Procedure in Ukraine 215. 
 
 
To begin, we will try establishing the specific interests of children in the context of 
solving civil cases on determining the place of residence of a child in particular. Then 
we will analyse what the principle of primary consideration of the best interests of 
children means in civil cases. To achieve these goals, we will turn to the judicial 
practice in Ukraine, and then we will summarise the researched material. In 
conclusion, we will try to derive a universal rule that would help determine the best 
interests of children in every civil case. 
 
The novelty of this research is in highlighting the key features of the Ukrainian 
experience and problems concerning the interests of children, as the Ukrainian 
approach is an under-researched area in European studies. The novelty of the study 
also includes coverage of some problems of international legal regulation in relation 
to the cases about determining the child's place of residence. Besides, we propose a 
new approach to understanding the principle of the primary consideration of the 
best interests of children, which will help to identify and protect the interests of 
children in practice in a better way. 
 
2 What Are the Interests of Children? 
 
If we consider the general approaches in legal doctrine in Ukraine to understand the 
concept of a legally guarded interest, we can find various definitions proposed by 
scholars. Thus, the scientists from the Kharkiv Civilistic School believe that the 
legally protected interest in civil law should be understood as the conscious subject 
of the right to obtain certain tangible (intangible) benefits or change their legal status, 
which encourages the subjects of law to take specific actions or, conversely, to 
refrain from them, which are in the legal field, provided in the implementation of 
state support, which is implemented in the form of a permit, which is presented in 
a specific legal relationship (Spasybo-Fateeva, 2014). 
 
O. I. Chepys understands the interest protected by law as the aims of the subject to 
meet socio-economic needs that are realised in civil law and subject to civil 
protection, but not mediated by legal norms, although those that do not contradict 
the general principles of civil law (Chepys, 2010). 
 
  
216 LEXONOMICA.   
 
Z. V. Romovska emphasises that the inclusion of interest in the group of interests 
protected by law allows its bearer to act in a certain way, to claim certain behaviour 
of another person, and in case of dissatisfaction with this interest, to seek his 
protection (Romovska, 1983). 
 
Summarising the existing approaches in legal science to the definition of the concept 
under study, R. A. Maidanyk argues that most often, the doctrine of civil law 
understands the term "interest" in two senses: as a prerequisite or mandatory 
element of a particular subjective law and as a possibility to satisfy their claims 
through subjective law. In this regard, a distinction should be made between the 
notion of interest as a precondition or basis of any subjective right and action in the 
so-called self-interest. The first of them means the sense of the existence of the 
subjective right, the main purpose for which it exists, and the second – is the ability 
of persons to meet their needs by any action, which exists, in particular, in cases of 
use of one's own or another's property for its intended purpose, because there is no 
such subjective right, in which its owner would not be interested (Maidanyk, 2012). 
 
The connection between interest and subjective law is interesting. I. V. Venediktova 
argues that the civil interest is the driving force that ensures the free expression of 
the will of the parties in the exercise of their rights, which implies a diversity of 
behaviour of the subject of legal relations when the subject decides on possible 
actions in these relations (Venediktova, 2014). 
 
As N. S. Kuznetsova rightly points out, civil law itself allows an individual and any 
association of individuals to implement an initiative based on legal equality and free 
expression of will, an initiative aimed primarily at pursuing primarily private interests 
(Kuznetsova, 2008). 
 
Thus, the concepts of interest and subjective law in the doctrine of Ukrainian 
jurisprudence differ in content but are considered to be very interrelated concepts. 
Interest is recognised as a prerequisite for the emergence of law, which, in this 
context, can be defined as a legally established opportunity to realise the interest 
supported by means of state coercion. Therefore, subjective law, in turn, is a means 
of realising the private interests of the individual. It is through the right that a person 
acquires the ability to demand from other people conduct that meets the interests of 
the authorised person and ensures their implementation. 
Fursa S. Yaroslavivna, B. Tetiana Oleksandrivna, Fursa Y. Yevhenovych: The Principle of 
Primary Consideration of the Best Interests of the Child in Civil Procedure in Ukraine 217. 
 
 
It should be noted that the interests of the child remain insufficiently studied in 
Ukraine, although they were the subject of research by some Ukrainian scientists. 
For example, L. A. Olkhovyk defined the interests of the child as a legal value 
"characterised by the proper material, moral, physical, mental state of the minor, 
provided by parents and which the minor is able to assess after reaching a certain 
age" (Olkhovyk, 2006). Although the interests of the child are indeed a legal value, 
in our opinion, this definition does not provide an explanation of the concept under 
study in essence. 
 
N. O. Onishchenko, O. L. Lvova and S. O. Sunegin argue that "under the existing 
legal doctrine, the logic of legal development and legal practice, the legitimate 
interest of the child means the interest protected by the state and society" 
(Onishchenko, Lvova, Sunegin, 2013), in which they can be unquestionably agreed. 
 
J.V. Petrochko believes that "ensuring the best interests of the child means the 
meeting of the individual needs of the child according to his age, sex, health, 
development, life experience, family, cultural and ethnicity, taking into account the 
views of the child" (Petrochko, 2014). This statement seems reasonable; however, it 
also seems that it does not fully characterise the best interests of the child. 
 
In the United Nations High Commissioner for Refugees (UNHCR) Guidelines on 
Determining the Best Interests of the Child, it is indicated that the term "best 
interests" 'broadly describes the well-being of the child. Such well-being is 
determined by various individual circumstances, such as the age, the level of maturity 
of the child, the presence or absence of parents, the environment and experience of 
the child' (UNHCR, 2008, p.14). Thus, the well-being of the child is associated with 
various individual circumstances and ensuring the needs of the child, but not directly 
in his or her best interests. 
 
In other words, these circumstances are factors that determine the needs of the child, 
not his or her interests. Therefore, the question arises about the correlation between 
the interests of the child and his or her needs. It is obvious that these two categories 
are closely related but not identical. The legally protected interest is defined as not 
prohibited by law aspiration to have a certain good (benefit) in Ukrainian 
jurisprudence. Such aspirations can go beyond the framework of what only is 
218 LEXONOMICA.   
 
necessary, what only is needed. Therefore, the category of children's interests is 
broader than their urgent needs at a particular moment in time. 
 
However, the interests of children are designed to meet their needs as well, of course. 
In this regard, psychologist E. Kruk noted that adults should not only take care of 
the urgent needs of children but also help children grow and develop and make the 
most of their opportunities (Kruk, 2015). Thus, psychologist considers such support 
from adults an important part of ensuring the best interests of children. Besides, 
such an approach should provide an opportunity to move away from the urgent 
needs of the child that exist today and also to look to the future of the child, if we 
take into account the concept of "development" of the child, for example, five or 
more years ahead. 
 
Investigating the interests of the child, G. Van Bueren points out that 'there is no 
agreement on the question of what the interests of the child are, not to mention his 
or her best interests' (Van Bueren, 2006, p. 68). She also rightly notes that the answer 
to this question is given by the adults themselves, who have the authority to 
substitute their decisions for the child's decisions, provided that these decisions are 
made in the best interests of the latter. Thus, determining the interests of children 
becomes a matter of adult intuition. Nevertheless, G. Van Bueren rightly points out 
that 'the notion of the best interests of the child has to be more than the crude 
intuition of judges,' as it must be based on the law to ensure objectivity and 
observance of the principle of predictability (Van Bueren, 2006: 70). 
 
However, in this aspect, our positions do not quite coincide because taking into 
account the concept of "law", we come to a stereotypical way of regulating legal 
relations, and this is understandable if we take into account a group of children, say, 
a certain age, for example, when conducting a survey of this group of children. If we 
take the interests of a particular child as a basis, they can be completely different 
from the interests common among children of a certain age. Therefore, we need an 
individual approach to each child if we want to establish his or her best interests. 
  
Fursa S. Yaroslavivna, B. Tetiana Oleksandrivna, Fursa Y. Yevhenovych: The Principle of 
Primary Consideration of the Best Interests of the Child in Civil Procedure in Ukraine 219. 
 
 
The scholar G. Van Bueren also believes that the Convention on the Rights of the 
Child is based on the assumption that the observance of all established rights of the 
child will ensure their best interests. However, she recognises that interests are a 
broader concept than rights and that they are a prerequisite for rights (Van Bueren, 
2006). 
 
As a result of her research, G. Van Bueren proposes to be guided by other principles, 
namely the principle of less harm and the principle of the dynamics of the 
development of the child's abilities to determine and observe the best interests of 
the child. However, she recognises that this may be uneasy in practice (Van Bueren, 
2006). 
 
We absolutely agree with this opinion of the scientist because, in her position given 
earlier, adults often have to proceed not only from the wishes and dreams of the 
child but from the principle of possible realisation of such dreams. For example, in 
Part 3 of Article 24 of the Constitution of Ukraine, the state has undertaken 
obligations for legal protection and material and moral support of motherhood and 
childhood (Constitution of Ukraine, 1996), but the minimum wage in Ukraine from 
1 January 2021 to 30 November 2021 is 6,000 Ukrainian hryvnias (UAH) per month 
(about 220 USD), and from 1 December 2021 the minimum wage is 6,500 UAH 
(about 240 USD) (Minfin Media, 2021). Therefore, the opportunities for parents to 
realise the dreams of a child are on the verge of possible and impossible because the 
realisation of a child's dream depends on their income.  
 
When the courts order alimony from one of the spouses, it is not based on the 
interests of the child but on the size of the subsistence minimum per child. Thus, in 
Ukraine, children under the age of 6 years in 2021 must be financially provided at 
the level of not less than 2,100 UAH (about 78 USD), and the next age category 
from 6 to 18 years old must be financially provided at the level of not less than 2,618 
UAH (about 99 USD) (Minfin Media, 2021). It follows from this provision that 
children aged 6 to 18 have the same interests, development costs and material needs, 
etc., which is difficult to agree with due to the difference in prices for at least clothes 
for the children.  
 
  
220 LEXONOMICA.   
 
Indeed, in such cases, much depends on the lawyers, who should ask the court about 
the provision that will meet the best interests of the child rather than their minimum 
material support. But the state must also set guidelines to be followed by the courts 
in determining the best interests of the child in certain circumstances. In the vast 
majority of Ukrainian families, parents try to give their children the best, often 
forgetting even their own interests, but in the case of emotionally strained divorces 
and alimony, some parents, for various reasons, go to the principle and try to 
determine the smallest amount of alimony. At the same time, alimony should be 
recognised as one of the important means of ensuring the best interests of the child, 
who already finds him or herself in a difficult life and emotional conditions when 
the child's parents divorce. 
 
In General Comment No. 14 (2013) on the right of the child to have his or her best 
interests taken as a primary consideration (art. 3, para. 1), it is stated that the concept 
of the child's best interests is aimed at ensuring both the full and effective enjoyment 
of all the rights recognised in the Convention and the holistic development of the 
child (UN Committee on the Rights of the Children, 2013). 
 
Donna J. Martinson points out that the best interests of a child require a rights-based 
approach that covers all rights and involves the holistic development of the child 
(Martinson, 2016). 
 
Analysing the case law of the European Court of Human Rights, M. Leloup outlines 
that "in practice, the child's interests are usually dealt with very briefly. From the 
case law, it appears that the Court evaluates the children's interests based on three 
factors: their age, their ties to both the receiving and the host country, and their 
effective family bonds" (Leloup, 2019: 50–68). 
 
Krutzinna J., in her research, suggests a three-step approach based on a theoretical 
model of the child to understand his/her needs, 
 
At least three such perspectives are conceivable: a) the universal child, b) the categorical 
child, and c) the individual child. While sphere a) characterises children based on their status 
as a child and assumes sufficient similarity in terms of needs between all children, sphere b) 
groups children together based on relevant characteristics, which may vary depending on socio-
cultural context. Examples include familiar vulnerability-based categories: very young age, 
Fursa S. Yaroslavivna, B. Tetiana Oleksandrivna, Fursa Y. Yevhenovych: The Principle of 
Primary Consideration of the Best Interests of the Child in Civil Procedure in Ukraine 221. 
 
 
female gender, ethnic minority background, poverty, and disability. In contrast, sphere c) 
takes into account these vulnerabilities as far as they are relevant for the specific child but 
goes further in considering the child as she is with any additional characteristics, 
conceptualising the child in her entirety as a unique individual (Krutzinna, 2022: 120-
145). 
 
This approach seems to be interesting and has the potential to help understand a 
child better and, therefore, his/her needs, but still, it focuses only on this part of the 
"needs" of the child, not taking into account the rights of a child as it was outlined 
in the Comment of UN Committee on the Rights of the Children. 
 
2.1 Analysis of Relevant National Legislature in Ukraine 
 
Article 7 of the Family Code of Ukraine establishes, 'The regulation of family 
relations should be conducted with the greatest possible consideration of the 
interests of the child' (Family Code of Ukraine, 2002). Therefore, the interests of 
children are almost the main criterion, based on which all family disputes should be 
resolved in civil procedure. It is known that the principles enshrined in the rules of 
law acquire the meaning of the most general rules of conduct for litigants. Therefore, 
such a general and universal nature of this rule of conduct concerning children gives 
ground to recognise it as a legal principle. 
 
An example of the application of the principle of the best interests of children by 
the courts can be found, in particular, in the decision of the European Court of 
Human Rights of 11 July 2017, M. S. v. Ukraine. In this decision, the ECtHR 
emphasised that it is of paramount importance to resolve the issue of what is in the 
best interests of the child in cases of determining the child's place of residence. In 
doing so, the Court noted that the best interests of children should be a primary 
consideration (ECtHR, 2017). 
 
The Supreme Court referred to this decision of the ECtHR when considering the 
case on determining the place of residence of children. The Supreme Court indicates 
in its decision that there are two aspects which must be taken into account when 
determining the best interests of a child in each case. At first, it is in the best interests 
of the child to maintain his or her ties with the family unless the family is 
dysfunctional. Secondly, ensuring a child's development in a safe, calm, reliable and 
222 LEXONOMICA.   
 
stable environment is in the best interests of the child. Moreover, the best interests 
of the child may override those of the parents depending on their nature and 
seriousness (The Resolution of the Supreme Court, 2018: Case No. 343/1500/15-ц).  
 
Simultaneously, we believe that the interests of children should be consistent with 
the interests of the family because the well-being of children and the realisation of 
their interests directly depend on ensuring the interests of the family. Therefore, 
judges should investigate the interests of children comprehensively with the interests 
of the family as a whole and of other family members separately to achieve the 
common good. And if the welfare of the family is ensured in this way, then the 
children will receive all the necessary and appropriate conditions for normal 
development. 
 
Based on this, we can assume that the principle of proportionality should also be 
applied in cases concerning the best interests of the child. In our vision, it means 
that the intervention of the state in the rights of a child, parents and other family 
members (i.e. in cases of adoption, deprivation of parental rights etc.) must be limited 
to the help the child needs under certain circumstances and thus the measures 
applied must improve the state of the child just enough and not more than it is 
reasonably necessary. In other words, the less restrictive measures must be applied 
if they are enough to help a child and provide for his/her best interest. 
 
However, Part 2 of Article 1 of the Family Code of Ukraine establishes other criteria 
for assessing the conditions that affect both parents and children, namely: the 
establishment of a sense of duty to parents, children and other family members; 
building family relationships on a parity basis, on feelings of mutual love and respect, 
mutual assistance and support; providing each child with family upbringing, 
opportunities for spiritual and physical development. It is difficult to disagree with 
these provisions, but it would be appropriate to swap paragraphs of this rule on duty 
and love and replace the word "parity" with the word "equal". 
 
Let's single out the concept of "love" from the given terminology, which cannot be 
considered legal, as its content in the Family Code of Ukraine is not disclosed, and 
its criteria are not given. Despite this, such a term is used in Part 1 of Article 55 and 
Article 150 of the Family Code of Ukraine, but the complexity of this term, along 
with others, such as respect, friendship, etc., complicates the task of qualifying the 
Fursa S. Yaroslavivna, B. Tetiana Oleksandrivna, Fursa Y. Yevhenovych: The Principle of 
Primary Consideration of the Best Interests of the Child in Civil Procedure in Ukraine 223. 
 
 
best interests of the child, if parents are obliged to: raise the child in the spirit of 
respect for other people's rights and freedoms, love for family, their nation, their 
homeland, to take care of the child's health, his or her physical, spiritual and moral 
development. 
 
So, if the Family Code of Ukraine does not formulate the concepts of "love", 
"respect", etc., then can they not be applied? We believe that in such cases, we must 
turn to Ukrainian traditions, literature, etc., where we can find examples of perception 
and application of these concepts in specific relationships and, thus, we will be able 
to fill these concepts with specific content, taking into account certain legal 
circumstances. 
 
Returning to the issue of resolving cases concerning the child's place of residence in 
Ukraine, it should be noted that under the current Ukrainian legislation, a child of 
fourteen years old is free to choose a place of residence under certain restrictions. 
The formula for determining the place of residence of a child aged ten to fourteen 
is more complicated and is one of the most difficult. Article 29 of the Civil Code of 
Ukraine states, 
 
The place of residence of an individual aged ten to fourteen is the place of residence of his or 
her parents (adoptive parents) or one of them with whom the child lives, the place of residence 
of the guardian or the location of an educational or healthcare institution, etc., in which the 
child resides unless another place of residence is established by an agreement between the 
child and parents (adoptive parents, guardian) or an organisation that acts as a guardian. 
In the event of a dispute, the place of residence of an individual between the ages of ten and 
fourteen shall be determined by the guardianship authority or the court (Civil Code of 
Ukraine, 2003). 
 
Accordingly, the place of residence of a natural person under the age of ten is the 
place of residence of his or her parents (adoptive parents), or one of them, with 
whom he or she lives, the place of residence of the guardian or the location of the 
educational institution or healthcare institution, in which the child resides. The will 
of a 14-year-old child is brought to the absolute because a such will is recognised as 
independent of the will of the parents, their marital status, solvency, etc.  
 
224 LEXONOMICA.   
 
For a child between the ages of 10 and 14 years old, Ukrainian law allows an 
agreement between a child and his or her parents, an organisation that acts as the 
guardian of a child. However, that provision of law on ascertaining the will of a child 
should also be taken into account when determining the place of residence of a child 
in the form of a contract. Therefore, the will of a child should be considered when 
resolving cases in court and out of court, and such will is brought to the absolute 
quite often, regardless of objective factors. 
 
At the same time, there are several circumstances taken into account in the first place 
when resolving a dispute over the place of residence of a minor under the age of 10 
years old. Such circumstances are the attitude of the parents to the performance of 
their parental duties, the child's attachment and affection to each of them, the child's 
age and health and after these – other circumstances of significant importance (part 
1 of Article 161 of the Family Code of Ukraine). Thus, the emphasis is not on the 
will and interests of a child, who may be nine years and eleven months old, but on 
the parents' performance of their duties, so this is no more about the best interests 
of the child, both in the present time and in the long term. 
 
Therefore, we believe that the court should not overestimate one of the components 
to maintain at least parity between the will of the child and his or her best interests 
but consider them all and decide the fate of the child taking into account all the 
available evidence in each civil case. In our opinion, the help of psychologists may 
also be needed in such matters, since some children may be influenced by the 
promise of one of the parents to give him or her a present in exchange for the child's 
agreement to stay with that parent, but then the child may end up with the 
grandparents, while the father or mother will live off the child support. 
 
There are often cases when the parent with whom the child is left to live instils in 
the child disrespect for the other, forbids the child to see the other parent, etc., so 
the provisions of the law remain unused in practice, but these cases could potentially 
be warned or corrected if psychologists were involved in such cases. 
  
Fursa S. Yaroslavivna, B. Tetiana Oleksandrivna, Fursa Y. Yevhenovych: The Principle of 
Primary Consideration of the Best Interests of the Child in Civil Procedure in Ukraine 225. 
 
 
2.2 Certain Issues of the Regulation of the Protection of the Children's 
Interests at the International Level 
 
International treaties ratified by the Verkhovna Rada are part of national legislation 
in Ukraine. So, it is also worth noting that certain issues concerning the rights and 
interests of children have received varying degrees of regulation and settlement in 
international treaties. If we consider other aspects of the protection of the rights and 
interests of children in the international context in more detail regarding, for 
example, the adoption of children, we will see many international acts devoted to 
these issues, such as the Convention on Protection of Children and Co-operation in 
Respect of Intercountry Adoption (or Hague Adoption Convention) (UN, HCCH, 
1993), European Convention on the Adoption of Children (done at Strasbourg on 
27 November 2008) (Council of Europe, 2008) and other international acts. 
 
However, the question of determining the child's place of residence may also be 
related to a foreign element when one of the parents is legally residing in a foreign 
country or is a foreign citizen. However, this issue is not regulated in such detail in 
international treaties, as is adoption, and sometimes it is difficult to find an 
appropriate judicial practice (relevant case law) in some countries, as it is in Ukraine, 
for example. 
 
Since this issue will become more relevant because of the development of population 
migration, it needs detailed regulation in international treaties as well. Thus, if a 
Ukrainian child from the age of 14 years old has the right to determine the place of 
residence without restrictions by its borders, then such right can also have a 
transnational character. Furthermore, in our opinion, similar norms about adoption 
that are in the international law and national legislation of various countries, where 
the best interest of the child is proclaimed and put first, may also be applied to cases 
on determining a child's place of residence. 
  
226 LEXONOMICA.   
 
2.3 Sum-Up on Children's Interests 
 
Based on the analysis above, we can conclude that the sphere of interest of children 
is wide enough and covers all issues related to the well-being of children. Therefore, 
it is challenging to give a clear and specific list of the interests of children, and there 
cannot be an exhaustive list at all. Simultaneously, it is difficult to object that children 
have such interests as follows: 
 
− To grow up in a healthy family atmosphere; 
− Not to receive psychological trauma due to strife between adults in 
the family – i.e., to have and to maintain mental and spiritual health 
in addition to physical; 
− To have good relationships with parents and to receive appropriate 
help from adults in building correct relationships with peers, i.e. to 
learn friendship and make good friends; 
− To develop physically, mentally, morally, spiritually and socially; 
− To receive help in discovering and developing their talents; 
− To receive from adults decisions that best meet the needs and 
wishes of the child, i.e. children have an interest in the adults' 
decisions they need and want for themselves; 
− To have love and understanding from adults of the child's needs, 
desires, views, choices, etc. 
 
And this list could be extended. We have mentioned only some of the interests of 
children, which are not directly expressed in law, but which every minor seeks to 
possess consciously or unconsciously. 
 
3 Defining the Best Interests of Children 
 
3.1 Determination of the Best Interests of Children in Practice of the 
Supreme Court 
 
The decisions made by the Supreme Court in cases involving children tend to focus 
on the best interests of children. The Court assesses the circumstances of the case 
and decides what will better defend and provide for the interests of children in each 
specific case. 
Fursa S. Yaroslavivna, B. Tetiana Oleksandrivna, Fursa Y. Yevhenovych: The Principle of 
Primary Consideration of the Best Interests of the Child in Civil Procedure in Ukraine 227. 
 
 
In cases of determining the place of residence of a child, the Supreme Court has 
formulated many legal positions regarding what will be in the interests of children, 
which should be adhered to by all courts of lower instances and state bodies. We 
will focus on some of them. To begin with, the Supreme Court notes that in 
determining the child's place of residence, it is necessary to proceed first of all from 
the interests of the child, taking into account his or her social ties, place of study, 
psychological state, etc., as well as maintain a balance between the interests of the 
child, the right of the parents to raising a child and the obligation of the parents to 
act in the best interests of the child (The Resolution of the Supreme Court, 2020: 
Case No. 587/2134/17). However, in our opinion, these issues can be perceived as 
urgent current interests of the child, but they do not take into account the future of 
the child. 
 
The Supreme Court also concluded that the equality of the rights of parents in 
relation to the child is a derivative of the rights and interests of the child for 
harmonious development and proper upbringing, and first of all, the interests of the 
child should be determined and taken into account, proceeding from the objective 
circumstances of the dispute, and only then the rights of the parents(The Resolution 
of the Supreme Court, 2019: Case No. 333/7436/17). That is, the child's opinion 
should be taken into account in this regard. 
 
According to the position of the Supreme Court, it is in the interests of the child to 
grow up in a complete family. Therefore, the fact of creating a new family by the 
mother, in the absence of evidence to the contrary, cannot be assessed as a negative 
circumstance, which makes it impossible to determine the place of residence of the 
child with the mother. Such a fact also does not give preference to the father, who 
did not create a new family in the defined place of residence of the child with him 
(The Resolution of the Supreme Court, 2019: Case No. 645/4582/16-ц). In this 
regard, the authors share the position of the Supreme Court but suggest not to 
perceive the definition of the child's place of residence as stably fixed until the child 
reaches adulthood. 
 
Thus, if the child does not have a good relationship with the mother and her new 
husband, the Supreme Court concludes that in such cases, determining the place of 
residence of a minor child with the mother will not meet the best interests of the 
child, as the child will have to adapt to the new social environment, which can 
228 LEXONOMICA.   
 
adversely affect the child's psychological state (The Resolution of the Supreme 
Court, 2020: Case No. 574/886/18). 
 
In the practice of the authors, there was a situation caused by the fact that the mother 
of the child, an athlete, had to join a foreign club, and this situation was perceived 
as a negative phenomenon. But in the court case, the negative assessments were 
refuted, as the child must get used to adapting to the new team and learning foreign 
languages along with the natives and, not surprisingly, in the foreign city, there was 
a school with the child's native language. Therefore, the position of the Supreme 
Court cannot be considered absolute but should be based on a specific life situation, 
taking into account the highest interests of the child, which was considered within 
the arguments of lawyers in this particular case. 
 
According to the practice of the Supreme Court, the separation of children from 
their parents and the determination of the children's place of residence in the social 
centre will be in the best interests of children if it is necessary to provide them with 
adequate living conditions, education and medical care and to prevent children 
suffering from the absence of care (The Resolution of the Supreme Court, 2020: 
Case No. 645/731/18). 
 
In the event that a party claims to change the child's place of residence, the Supreme 
Court concludes that the change of the child's place of residence will not correspond 
to the best interests of the child as it will entail a violation of the child's stable, 
established ties with others and their usual environment (The Resolution of the 
Supreme Court, 2019: Case No. 552/4608/18). 
 
However, it cannot be assumed that a child should live his whole life in a certain 
place or under certain conditions. In this situation, it is important to take into 
account how the parental responsibilities were performed, and in case of improper 
performance, the other parent should be given a chance to raise and develop the 
child. Of course, if there is relevant evidence in a particular case and the child does 
not object. 
 
  
Fursa S. Yaroslavivna, B. Tetiana Oleksandrivna, Fursa Y. Yevhenovych: The Principle of 
Primary Consideration of the Best Interests of the Child in Civil Procedure in Ukraine 229. 
 
 
Until recently, forensic statistics testified to the absolute majority of cases when 
children were left by the court to be raised by their mothers. This situation was 
caused by the fact that everyone perceives Ukrainian culture as a source of reliable 
information, where the term "mother's love" has been praised since ancient times. 
However, how many cases have been recorded when a child is turned against the 
father and thus refuses to communicate with him? Are all mothers in Ukraine equally 
worried about their children? Therefore, taking into account the development of 
society and contemporary processes, the Supreme Court, starting in 2018, departed 
from the previous legal position, according to which, in order to leave a child with 
their father, it was necessary to prove the existence of exceptional circumstances that 
prevent the abandonment of a child by their mother. Accordingly, today's studies of 
judicial practice indicate a significant increase in court decisions in which the court, 
based on the equality of the rights of parents concerning the child, leaves children 
to live with the father. And we consider these tendencies in judicial practice to be 
correct since there is a significant number of fathers who love their children and 
who are able not only to provide for the child financially but also to educate them 
spiritually. 
 
So, according to the practice of the Supreme Court, the assessment of the best 
interests of the child includes finding a balance between all the elements necessary 
for making a decision based on the objective circumstances of the dispute, and this 
balance must not violate the interests of the child, but protect them. 
 
In our opinion, the maintenance and upbringing of the child should be perceived 
not only through the prism of legislation but also under Ukrainian traditions, where 
love for a child is one of the highest family values, and a child's love for their parents 
is a natural property of children and not only Ukrainian ones. In this case, we are 
reaching the level of those indicators that cannot be measured in modern conditions, 
but they exist and should be taken into account when determining which parent the 
child should stay with in the event of a divorce.  
 
So, quite often, in families, one of the parents shows condescension toward the 
actions of the child, and the other – exactness, checks homework, monitors visits to 
sports activities and brings up the child in the spirit of respecting their grandfather 
and grandmother. The question will be simple; who has a more positive role in 
raising a child and, at the same time, to whom will the child go in the event of a 
230 LEXONOMICA.   
 
divorce? However, which parent will give the child greater prospects in independent 
life and achieving positive results? How to distinguish a demanding father from a 
despot in family relationships, condescending behaviour from indifference, or 
narcissism? Is a judge able to determine the best interests of a particular child during 
a court hearing if he or she does not have objective information but has the positions 
of the two parties in the dispute? It is just as difficult to understand real relationships 
based only on the child's position if we want to know about the child's best interests 
and not the child's assessment of his prospects for the future or his or her perception 
of the concept of "love" for one parent. 
 
Therefore, determining the limit of state intervention in relations related to the 
upbringing and maintenance of the child, it should be done not in a hurry and not 
in a standard way, according to which the child should stay with the mother because 
so the vast majority of cases in Ukrainian courts; but it should be done by taking 
into account the positions of the child, both of his or her parents, the arguments of 
their lawyers, as well as the conclusion of the psychologist, which together must 
ensure the objectivity of the final court decision. 
 
3.2 What can be the best form of interest? 
 
Now, considering the given examples of children's interests, we can proceed directly 
to the analysis of the concept of the "best interests" of the child used in the 
Convention on the Rights of the Child. In this context, the question arises, what can 
be the best form of interest? For example, what can be the best form of interest to 
grow in a healthy family atmosphere? What is the best way to stay healthy? What is 
the best way to seek out and develop talents? 
 
If these questions can be answered, they will be ambiguous, not specific and not 
applicable to every child and every life event unless we take some starting point to 
determine better and the best interests. In our opinion, the answers to these 
questions are more philosophical than practical legal ones. However, following logic, 
it is necessary to have a proper understanding of the best interests of children to 
decide their cases in accordance with such best interests. And here, we see that the 
solution to this question is rather problematic. 
 
Fursa S. Yaroslavivna, B. Tetiana Oleksandrivna, Fursa Y. Yevhenovych: The Principle of 
Primary Consideration of the Best Interests of the Child in Civil Procedure in Ukraine 231. 
 
 
Besides, it should be noted that we are not talking, for example, about the best health 
because, firstly, it is difficult to characterise what kind of health it is, and secondly, 
the achievement and preservation of absolute and perfect health does not seem 
possible under the current environmental conditions. Therefore, it seems to us that 
the principle of primary consideration and ensuring the best interests of children 
means not so much the best form and the highest degree of the interest itself but 
the search for the best possible option, the best way to resolve cases involving 
children, which would satisfy their interests to the greatest extent possible, take into 
account their needs and fit their wishes. 
 
In other words, in our vision, the primary consideration and ensuring the best 
interests of children mean that obligated persons have to make every effort to create 
the best possible conditions for the development of children and give them the best 
possible care. Thus, the best degree requires the obligated persons to take maximum 
care of the interests of the children. And this is justified from the point of view that 
children can often not be aware of their interests, and this means that adults should 
take care of them. The responsibility of the obligated persons arises to provide the 
child with the care he or she needs based on the inability of children to take care of 
themselves. 
 
Therefore, we suggest the principle of primary consideration of the best interests of 
children by obligated persons (state bodies, parents, guardians, trustees) is to 
understand, search for and apply the best ways and means out of all the available 
ones to solve cases involving children, which would to the greatest extent possible 
satisfy the interests of children, take into account their needs and meet their wishes. 
The application of such a theoretical approach will make the determination of the 
best interests of children in practice more clear and will allow judges to decide on 
cases concerning children in a better way to give the best possible protection to the 
children's interests with maximum compliance with Article 3 of the UN Convention 
on the Rights of the Child. 
 
At the same time, it should be stated that the best interests of the child are an 
indicator that should be determined in comparison with the existing interests of the 
child when it comes to changing his place of residence, persons who should carry 
out education, maintenance, as well as take into account the child's development, 
spiritual education and other values. Obviously, in the legal context, the child's best 
232 LEXONOMICA.   
 
interests are determined by the authorised state bodies in a given situation, but with 
the obligatory consideration of the child's abilities and the state of his or her health 
and wishes. If we ask a child about this, we will receive his or her dreams and wishes 
for the future, but not objective information about the perspective that can await 
him or her in the near or long term. And the point here is not only in the material 
component of maintenance but in those human qualities of parents who can and are 
able to make dreams come true in the life of a particular child. Therefore, the authors 
propose to involve psychologists as widely as possible in such cases, who will be able 
to understand the psychology of the child, his or her mental state and present the 
negative influence of one of the parents on the child. 
 
4 Conclusions and Recommendations 
 
Summarising the above arguments, we should recognise that the interests of the 
child are a complex multi-vector matter in which both the will of the child and adults 
are intertwined. Moreover, the will of the child is associated with greater attachment 
of the child to one of the parents and other persons, while the will of the adults is 
objectified as they must take responsibility for the future fate of the child and see it 
both, in the present, and until the time the child comes of age, taking into account 
the degree of his or her development, desires, aspirations and the like. 
 
To reproduce this conclusion, we propose to amend the relevant national legislation, 
particularly in Ukraine. We suggest amending Article 6 of the Family Code of 
Ukraine to move away from duplication of norms of the Civil Code and complement 
it with the basic principles of international law. 
 
The interests of children should also be consistent with the interests of the family 
because the well-being of children and the realisation of their interests directly 
depend on ensuring the interests of the family. Therefore, judges should investigate 
the interests of children comprehensively with the interests of the family as a whole 
and of other members of the family separately to achieve the common good. And if 
the welfare of the family is ensured in this way, then the children will receive all the 
necessary and appropriate conditions for normal development. 
  
Fursa S. Yaroslavivna, B. Tetiana Oleksandrivna, Fursa Y. Yevhenovych: The Principle of 
Primary Consideration of the Best Interests of the Child in Civil Procedure in Ukraine 233. 
 
 
The issue of determining the child's place of residence is not regulated in such detail 
in international treaties, like adoption, so it requires detailed regulation in 
international treaties since this issue will become more relevant with the 
development of population migration. 
 
The principle of primary consideration of the best interests of children is the use of 
the best possible ways and means of resolving cases with the participation of 
children, which would meet their contemporary interests, and consider their existing 
needs along with the perspectives for the future to the greatest extent possible. 
 
 
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About the authors 
 
Fursa Svitlana Yaroslavivna, Doctor of Juridical Science (Dr.hab.), Professor at the Department of 
Notary, Enforcement Process and Advocacy, Prosecution, Judiciary, Institute of Law of the Taras 
Shevchenko National University of Kyiv,  
ORCID ID: https://orcid.org/0000-0002-3023-5287 
fursa_2003@ukr.net, +380663172786.  
 
 
Fursa S. Yaroslavivna, B. Tetiana Oleksandrivna, Fursa Y. Yevhenovych: The Principle of 
Primary Consideration of the Best Interests of the Child in Civil Procedure in Ukraine 235. 
 
 
Bordiuh Tetiana Oleksandrivna, Ph.D., Chief Specialist at the Department of Analytical and Legal 
Work of the Supreme Court.  
ORCID: https://orcid.org/0000-0002-3300-8653 
tatiana.bordiug@gmail.com, +380664456711.  
 
Fursa Yevhen Yevhenovych, Candidate of Science in Law (Ph.D.), First Secretary at the analysis, 
planning and information division of the Department General for Consular Service of the Ministry of 
Foreign Affairs of Ukraine.  
ORCID ID: https://orcid.оrg/0000-0002-2931-1393 
fursamfa@gmail.com, +380663172786 
 
 
  
236 LEXONOMICA.