Case Law Search

The case concerned a child born on October 1rst, 2010, in Mariupol, Ukraine. By a decision dated April 6, 2015, the court of Ordzhonikidzevskyi, city of Mariupol, recognised the paternity of the father and granted him access rights over the child. The mother was ordered not to obstruct the father's participation in his son's upbringing and their communications. However, the mother left Ukraine with the child to settle in France on June 28, 2015. A second decision by the Ukrainian court, handed down on April 1st, 2016, established the child’s habitual residence in Ukraine, with the father, and ordered the mother to hand the child over to the father.  

The public prosecutor (procureur de la République) of Caen, France, referred the case to the Family Affairs Judge of the Judicial Court (juge aux affaires familiales du tribunal judiciaire) of Caen on August 8, 2016, under the 1980 Convention, in order to obtain the return of the child to Ukraine. The request for return was dismissed.  

The case was brought to the Court of Appeal (cour d’appel) of Caen, which refused to order the return of the child to Ukraine on the basis that the father did not have rights of custody over the child at the time of the removal. The father appealed the decision before the Supreme Court (Cour de Cassation). 

Decision overturned and case remitted to a lower court. The Supreme Court recalled that a parent may have custody rights within the meaning of the 1980 Convention even though the child does not live with that parent.

Rights of Custody - Art. 3

The Supreme Court rejected the Court of Appeal’s finding that the father did not have custody rights prior to the April 1st, 2016 decision by the Ukrainian court, which was issued after the removal of the child. The Supreme Court, therefore, rejected the Court of Appeal’s conclusion that the removal was not wrongful.

The Supreme Court recalled that a parent may have rights of custody over a child even though the child does not live with that parent. In this case, the father’s paternity had been recognised in an earlier court decision, handed down on April 6, 2015, which also granted him access rights over the child. Therefore, at the time of the removal, the father did have rights of custody over the child, within the meaning of Articles 3 and 5 of the 1980 Convention. The Supreme Court concluded that the Court of Appeal could not refuse to order the return of the child to Ukraine on the basis that the father did not have rights of custody.

Author: Camille Druilhet