Верховний Суд у складі колегії суддів Другої судової палати Касаційного цивільного суду (Supreme Court of Ukraine)
Superior Appellate Court
Presiding Judge Vysotska V.S., Lesko A.O., Judge-Raporteur Martieva S.Yu., Proroka V.V., Shtelyk S.P.
UNITED KINGDOM - ENGLAND AND WALES
29 August 2018
Aims of the Convention - Preamble, Arts 1 and 2 | Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12 | Jurisdiction Issues - Art. 16 | European Convention on Human Rights (ECHR)
412 of the Civil Procedural Code of Ukraine, Article 11 of the 1989 UN Convention on the Rights of the Child, Articles 8 and 13 of the European Convention on Human Rights
1 child wrongfully retained at age 6 months - National of United Kingdom and Ukraine - Married parents- Father national of the United Kingdom - Mother national of Ukraine – Applicant father had joint custody with respondent mother under British legislation – Child lived in the United Kingdom until 11 April 2012 -Application for return filed with the courts of Ukraine on 19 December 2012 - Return ordered on 29 August 2018 - Main issues: Articles 5 and 12 of the 1980 Hague Child Abduction Convention (a parent cannot independently decide to change the child’s place of habitual residence; the place of habitual residence is of major importance to restoring of the status quo for the child; first instance court and appeal court incorrectly interpreted exceptions for non-return of a child as a settlement in new environment, acquiescence in the retention and grave risk to return).
The application related to a boy aged 6 months, born in the UK to a British father and a Ukrainian mother. The child lived in England with his parents until April 2012 and the parents had joint custody under British law.
In April 2012 the parents travelled to Ukraine with the child to visit the mother’s relatives. They should have returned together at the end of the month but the father left Ukraine alone following a disagreement with the maternal grandparents. The mother failed to return with the child by the agreed time.
The father filed a return application in August 2012. As no amicable solution was found the judicial proceedings were initiated in December 2012, via the Central Authority of Ukraine. Over 5 years the case was repeatedly reviewed by Ukrainian courts of all instances before reaching the Supreme Court.
The Supreme Court ordered the return of the child. A parent cannot independently decide to change the child’s place of habitual residence; the place of habitual residence has of major importance in restoring the status quo for the child; the child should be returned under the Convention before the custody issues are decided. The first instance court and appeal court had incorrectly interpreted the exceptions for non-return of a child.
Author: Oksana Ilhova
The 1980 Hague Convention obliges the Contracting States to take all measures to return children, wrongfully removed or retained in the foreign State, to the State of their habitual residence. For this purpose they shall use the most expeditious procedures available.
The main focus of the 1980 Hague Convention is that one of the parents or family members can not unilaterally decide on the change of the place of residence of the child.
Wrongful retention of child by a parent is a ground for application of the 1980 Hague Child Abduction Convention, in this case the child should be returned immediately to the United Kingdom.
Article 12 of the 1980 Hague Convention provides that, in some cases, the child should not be returned if they have settled in their new environment in the State in which they were wrongfully removed to or retained in.
However, in this case the father made an application for return less than a year since the child was wrongfully removed. Therefore, the lower courts had unjustifiably applied the second paragraph of Article 12 of the 1980 Hague Convention. This provision applies only if the return procedure begun more than one year after the date the child was wrongfully removed or retained. The failure to return the child within six weeks from the date of commencement of the procedures, provided for by the 1980 Hague Convention, is not a ground for refusal to return the child.
When considering whether a return order should be made under the 1980 Hague Convention, the court should not decide on the merits of rights of custody.
The issue of the rights of custody of one or both parents falls within the jurisdiction of the competent authorities of the State in which the child was habitually resident before the wrongful removal or retention.
The argument that a return order would mean that the child was separated from the mother was not relevant as there was nothing preventing the mother from travelling to the United Kingdom with the child and applying to the authorities there to consider substantially the issues custody of the child and determination of his place of residence.
The subject of this claim is solely the return of the child in the manner in which Ukraine fulfills its obligations under the 1980 Convention.
Article 11 of the UN Convention on the Rights of the Child obliges the State Parties to take measures to combat the illicit transfer and non-return of children abroad. This Article corresponds to the right of everyone to respect for his private and family life, enshrined in Article 8 of the European Convention on Human Rights.
The father had no effective legal protection measures under Article 13 of the European Convention of Human Rights because the courts admitted excessively lengthy proceedings, without considering the question of returning the child for six weeks, as recommended by the Hague Convention of 1980.