Judges of the Civil Court of Cassation, part of the Supreme Court, Yevgen Synelnikov and Serhii Burlakov spoke about this at lectures within the framework of training for maintaining the qualifications of judges of court chambers in civil cases of appeal courts.
Evgeny Synelnikov spoke about the main aspects related to the resolution of disputes about determining the place of residence of a minor child. He noted that determining the place of residence not only significantly affects the child's development, but will also determine the behavior of an adult in the future, therefore, it is necessary to take a balanced approach to making such decisions.
The speaker emphasized that parents have equal rights and responsibilities towards the child, taking into account his best interests. This principle is characteristic of most legal systems of European countries. In particular, German legislation guarantees the child's right to contact with his parents, the principle of joint parenting is enshrined in French legislation, etc.
Yevhen Sinelnikov noted that courts often apply the norms of the 1989 Convention on the Rights of the Child. But they ignore the 1996 European Convention on the Rights of the Child. The speaker noted that the ECtHR in cases on determining the child's place of residence drew attention to the fact that national courts, rejecting one piece of evidence (conclusions of experts, guardianship authority), make decisions in the absence of other evidence that could testify to the child's interests. Such cases require the opinions of specialists in the fields of psychology, pedagogy, and psychiatry. "It should be taken into account that the child's interests must be established, his rights must be protected. Therefore, in certain cases, the court should encourage the body of guardianship and guardianship to provide substantiated conclusions, initiate the conduct of appropriate examinations," Yevhen Synelnikov emphasized.
The judge also raised the issue of a preventive temporary ban on the child's departure from the borders of Ukraine in order to secure the claim, noted that such temporary measures can be applied in case of proof that there is a risk of abduction (illegal transfer) of the child. The speaker noted that he had familiarized himself with the legislation and judicial practice of other states on this issue and did not find a ban on the use of such a preventive measure in the interests of the child.
Yevhen Synelnikov noted that the development of joint parental responsibility is aimed at overcoming gender stereotypes regarding the roles that are supposedly assigned to women and men in the family and is an obvious reflection of the sociological changes that have taken place over the past fifty years in the organization of the private and family spheres.
The speaker cited the following methods of court resolution of the dispute regarding the determination of the child's place of residence:
- joint custody with alternating residence of the child in the residence of each parent;
- determination of the child's place of residence in the apartment in which the child lived (and the parents must alternately come and go);
- determination of the child's place of residence with one of the parents, ensuring contact of the child with the other parent.
Yevhen Synelnikov also drew attention to the Resolution of the Parliamentary Assembly of the Council of Europe dated October 2, 2015 No. 2079 "Equality and shared parental responsibility: the role of the father." It emphasizes that in the event of separation of parents or dissolution of marriage, family law should provide for the possibility of joint custody of children in their best interests on the basis of mutual consent between the parents. PARE also called on the participating states to include in their legislation provisions on the possibility of a child living alternately with each parent, to encourage and develop mediation within the framework of court proceedings in family cases involving children, encouraging interdisciplinary cooperation based on the "Kochem model".
In addition, the speaker noted that at the end of September 2022, the CCS of the Supreme Court published a review of practice in cases involving disputes regarding the determination of a child's place of residence and the removal of a child without deprivation of parental rights . Also, in the near future, it is planned to publish the Review of the practice of the Supreme Court of Ukraine in cases related to the resolution of disputes between parents about participation in the upbringing of a child.
Serhiy Burlakov spoke about the application of the principle of good faith in resolving civil disputes. He noted that this principle enshrined in Art. 3 of the Civil Code of Ukraine, has a completely applied meaning. The Supreme Court is increasingly using it when considering both civil and commercial disputes.
The speaker emphasized that the private law system of Ukraine is developing in the context of the European legal system. And we must apply the provisions of the Principles, Definitions and Model Rules of European Private Law (DCFR), which state that any action by a legal or natural person must be in good faith. Also under these rules, conduct contrary to good faith and fair business practices includes, inter alia, conduct that is inconsistent with a party's prior statements or conduct, provided that the other party acting to its detriment reasonably relies on them.
The judge cited the mechanism of application of estoppel – prohibition of a party to behave contrary to its previous behavior (statements, assertions, promises, actual behavior and even inaction). In case of violation of this principle, the court must apply the provisions of parts 2 and 3 of Article 13 of the Civil Code of Ukraine, seeing here an abuse of the right.
In addition, the speaker drew attention to the fact that the principle of good faith is also applied by the European Court of Human Rights. He cited the decisions of the ECtHR from July 8, 1986 in the case of "Lingens v. Austria" and from January 21, 1999 in the case of "Fressot and Roir v. France", which concern the protection of dignity, honor and business reputation. The court made conclusions about the journalist's duty to adhere to the standards of professional ethics and to act in good faith. That is, before making any information public, he must make sure that there are grounds for disseminating such information. Otherwise, the journalist acts in bad faith.
The speaker also drew attention to the Decision of the KSU dated April 28, 2021 No. 2-р(ІІ)/2021 in case No. 3-95/2020(193/20). The case concerned the unscrupulous behavior of the subject of banking activity, which used courier services instead of collection services in order to save money, which led to a lack of funds. Such actions of the bank are recognized as an abuse of law.
In the resolution of September 4, 2020, in case No. 311/2145/19 (on the invalidation of land lease and sublease agreements), the Supreme Court concluded that the unscrupulous behavior of a person, which consists in taking actions that may in the future violate the rights of other persons , is a form of abuse of rights. The essence of the abuse of the right consists in the commission of actions by an authorized person, which constitute the content of the relevant subjective civil law, in bad faith, including contrary to the purpose of such a right.
And in the resolution of the Supreme Administrative Court of Ukraine dated January 12, 2022, in case No. 520/13586/18, it was concluded that if a person who has the right to challenge a document or legal fact (in particular, a deed, contract, decision of a body of a legal entity) expressed directly or made it clear by his behavior that he will not exercise his right to dispute, then such a person is bound by his decision and has no right to change it later.
In the resolution dated December 14, 2021, in case No. 147/66/17, the Supreme Court determined that good faith is a certain standard of behavior characterized by honesty, openness and respect for the interests of the other party to the contract or the relevant legal relationship. Therefore, the principle of good faith assumes that the parties must act in good faith during the exercise of their rights and the performance of their obligations provided for by the contract and/or the law. "That is, a person has not only the right, but also the obligation to act either in accordance with the agreements or in accordance with the requirements of the law," said the speaker.
He also cited other practices of the Supreme Court of Ukraine, the Supreme Court of the Supreme Court, and the Supreme Court of the Supreme Court regarding the discussed issue in different categories of disputes (see the presentation).
Serhiy Burlakov answered the question about the expediency of enshrining certain criteria of unscrupulous behavior in the legislation. "Such criteria should be determined not by legislation, but by judicial practice. After all, they can change and should be flexible. And the Supreme Court is already developing a relevant practice," the judge said.
As an example, he cited a case under the circumstances of which NAZK drew up an act regarding the violation of anti-corruption legislation by a subject of authority who did not declare a room in a dormitory donated by a related person. In order to avoid responsibility, the subject of the declaration tried to invalidate the donation contract. "Actually, the institution of invalidity of the deed was not used for the purpose of returning to the previous state, but only for the purpose of evading administrative or criminal responsibility," the speaker said.
Yevhen Sinelnikov's presentation – https://bit.ly/3zizpWh .
Serhiy Burlakov's presentation – https://bit.ly/3sz1RPY .