The Principle of the Best Interests of the Child in Determining the Child’s Place of Residence under Martial Law

Abstract

The article defines and characterises the best interests of the child principle in determining the child’s place of residence under martial law. The principle of the best interests of the child is examined in both a broad and a narrow sense. In its broad interpretation, the principle applies to all legal relationships involving a child, whereas in its narrow sense it pertains exclusively to family law relations. It is emphasised that there are no exceptions to the application of the principle of the best interests of the child in any legal relationship where a child is a participant. An individualised approach to the child’s needs should always be applied when determining the child’s place of residence. At the same time, the possibility of a child’s participation in determining his or her best interests is not strictly linked to a specific age, but rather depends on the child’s conscious understanding of the circumstances of his or her own life. Decisions regarding a change of the child’s place of residence must be tailored to the individual child. The issue of the forced evacuation of children is also examined. Such legal relations do not fall within the scope of family law, as they involve state intervention to ensure the child’s safety, life, and health. It is established that, as a consequence of martial law, cases concerning the determination of a child’s place of residence have extended beyond the traditional scope of family law disputes. It is concluded that a child’s place of residence constitutes an element of the child’s autonomy. Therefore, this issue is particularly sensitive and requires respect when parents, other family members, or the state interfere. Any intrusion into a child’s autonomy must be accompanied by respect for the child’s dignity and individuality and may be justified only where compelling circumstances necessitate a change of residence. Accordingly, when determining a child’s place of residence, it is essential to assess how disruption to the child’s habitual way of life — such as separation from family, school, or peers — may cause psychological stress and affect the child’s overall development and social adaptation. Thus, a decision to establish a new place of residence must be supported by substantial and well-grounded advantages that clearly justify such a change.