The Supreme Court judge spoke about the development of practice in disputes regarding the return of children to Ukraine

National courts are competent to consider cases regarding the return of children to Ukraine from other countries, however, the corresponding decisions will be subject to the procedure of recognition and enforcement in the country of the child's stay. However, the war presented many new questions to courts and lawyers regarding the resolution of such disputes. This was said by the judge of the Supreme Court in the Civil Court of Cassation, Olga Stupak, at the online event "War in Ukraine and the Hague Convention of 1980 on child abduction: to return or not to return? That's the question."

Olha Stupak noted that in peacetime, the national courts of Ukraine, applying the provisions of the 1980 Convention on the Civil and Legal Aspects of International Child Abduction (The Hague Convention of 1980), considered mainly cases of returning children who are in Ukraine to their countries of permanent residence . Since the beginning of its work, the Supreme Court has considered almost 60 cases of this category. And during the war years, the number of such cases decreased: in 2022, there were seven cases, in half of 2023 – only one case.

The judge noted that the approach to the consideration of cases with the application of the norms of the Hague Convention of 1980 was changed by the resolution of the Supreme Court of Justice of Ukraine dated August 17, 2022 in case No. 613/1185/19 ( ). The court faced an unusual situation. The applicant – a Ukrainian – applied specifically to the court of Ukraine (and not to the court of the country where the children are staying) with an application for the return of the children to Ukraine at their usual place of residence. At one time, he gave permission to his wife for a temporary trip with the children to relatives in the Russian Federation. After the permit expired, the mother and children did not return, but, according to the father, moved to Armenia. Courts of first instance and appeals indicated that the jurisdiction of the court of Ukraine does not extend to this dispute, and the applicant should apply to the court of the country where the children are located.

Reviewing this case, given the complexity and importance of the legal problem that has arisen, the Supreme Court of Ukraine used the procedure of requesting the Hague Conference on Private International Law for the first time in Ukraine. The court referred to the HCMPP regarding the application of the provisions of the Hague Convention of 1980 and the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children of 1996 (Hague Convention of 1996).

Taking into account the received recommendations (see ), in particular, that the specified Conventions are mutually complementary, the CCS of the Supreme Court made legal conclusions that the applicant can apply not only to the court, but also to the competent authority of the contracting state both in the country of the children's permanent residence (in Ukraine, this is the Ministry of Justice), and in the country of their residence at the time of submitting the application. At the same time, the CCS indicated that the national courts of Ukraine retain the competence to resolve applications for the return of children from other countries under the Hague Convention of 1980, if they have not acquired a place of permanent residence (usual residence) in the country in which they are now.

Olga Stupak illustrated the scheme of the algorithm prepared by her for applying to the competent authority or to the court of the country of permanent residence or the country of stay of the child with an application for her return to the country of permanent residence (see presentation). At the same time, she drew attention to the fact that in case the court of Ukraine makes a decision on the return of the child from another country, the applicant will have to go through the procedure of recognition and permission to implement such a court decision in the country where the child is staying. Similarly, if the decision to return the child was issued by the court of the country where the child is staying, it is necessary to obtain a court decision in Ukraine to recognize and enforce the decision of a foreign court.

In addition, the speaker emphasized that the key point for determining the jurisdiction of the court (competent body) is to establish the country of permanent residence of the child until the moment of his illegal displacement. Therefore, the courts of the first and appellate instances need to establish and analyze the circumstances of the case in detail in order to establish this fact.

Olha Stupak also emphasized the problems caused by the war, which both Ukrainian courts and lawyers, as well as their foreign colleagues, will have to face. Current as of February 24, 2024, the Rules for Crossing the State Border by Ukrainian Citizens provided that a child may leave Ukraine accompanied by one parent with the notarial consent of the other or accompanied by another person with the consent of both parents. But after the beginning of the full-scale invasion of the aggressor country into Ukraine, the State Border Service of Ukraine actually opened the border. "The children were escaping the war: they left with whoever they could," said the judge. In March 2022, the Rules were amended to allow the departure of children with the written consent of one of the parents, additional changes were made in April last year. But in fact simplified border crossing continued to exist.

One of the key questions raised by this situation is whether such departure of a child can be qualified as illegal movement across the border. The second question, if we consider that at the time of the child's departure with one of the parents, there was the tacit consent of the other, and today, when a year has passed since such departure, the second of the parents demands the return of the child – from what moment does the period of the child's illegal stay abroad begin. "These are legal questions that will have to be answered by national courts in the future," said Olga Stupak.

She also drew attention to disputes about the participation of one of the parents, who is in Ukraine, in raising a child who went abroad with the other parent. Because of the war, judicial practice in such disputes has undergone significant changes. Courts began to establish such methods of participation in the child's upbringing as the obligation of the parent with whom the child left to ensure communication with the other parent by means of mobile communication and the Internet. Disputes about determining the place of residence of children, including those who have gone abroad, continue.

Summing up, Olha Stupak noted that after the decision of the Supreme Court of Ukraine in case No. 613/1185/19, we can expect more cases in the courts of Ukraine about the return of children who are abroad. Also, national courts will continue to consider applications for recognition and enforcement of decisions of foreign courts on the return of children to Ukraine or from our country to another.

At the same time, the judge emphasized that, in her opinion and the opinion of many colleagues, while the war continues in Ukraine, there is not a single safe place on its territory. This is the basis for the application of subparagraph "b" of Article 1. 13 of the Hague Convention of 1980, which makes it impossible to return a child to the country of permanent residence, if the return threatens him with physical or mental harm or otherwise creates an intolerable environment for the child.

Online event "The war in Ukraine and the Hague Convention of 1980 on child abduction: to return or not to return? That's the question" was jointly organized by the Committee on Civil, Family and Inheritance Law of the Association of Lawyers of Ukraine and the Committee on Family Law of the International Association of Lawyers. It was attended by lawyers from the USA, Canada, Great Britain and Scotland, Italy, Germany, Poland and other countries.

Olga Stupak's presentation – .

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