Buscador de jurisprudencia

This case concerned a child born in Kiev, Ukraine. The parents of the child separated and the Court of Appeal of Kiev, in a decision of 21 September 2011, gave primary custody to the mother, granting visiting rights to the father. A decision of the Court of Petchersky, confirmed by the Court of Appeal of Kiev on 18 June 2013, allowed each parent to travel alone with the child, without the authorisation of the other parent. 

The mother left Ukraine with the child and her 3 other children (from previous relationships) in October 2014 to reside in France. On 18 November 2014, the father made a return application under the 1980 Convention before the Ukrainian Central Authority. On 27 April 2016, the Court of Solomianskyi, in Kiev, gave primary custody of the child to the father in Ukraine.

In France, the public prosecutor (procureur de la République) referred the case to the District Court (tribunal de grande instance) of Nanterre, on 24 May 2016, to obtain the return of the child to Ukraine under the 1980 Convention. The court refused to order the return of the child. The father appealed this decision before the Court of Appeal (cour d’appel) of Versailles, which, on 24 November 2016, ordered the return of the child to Ukraine. The mother appealed the decision before the French Supreme Court (Cour de cassation).

Appeal granted, the Court of Appeal’s decision is overturned. The Supreme Court finds the child settled in her new environment, within the meaning of Article 12(2) of the 1980 Convention.

Rights of Custody - Art. 3

The mother alleged that the father did not have rights of custody pursuant to Article 3 of the 1980 Convention, as the Ukrainian decision of 21 September 2011, in force at the time of the retention, only granted him visiting rights.

The Supreme Court concurred with the Court of Appeal’s finding that the father was granted rights of custody with this decision and although the mother had the right to travel without the father’s authorisation, she did not have the right to unilaterally change the child’s habitual residence.

Settlement of the Child - Art. 12(2)

The Supreme Court rejected the Court of Appeal’s finding that the child was not settled in her new environment, pursuant to Article 12(2) of the 1980 Convention because her mother did not speak French, was seeking asylum in France, was unable to work there, and was staying with a third party, who was housing her and her three children. The Supreme Court highlighted the Court of Appeal’s own finding that the child was living in France for two years, attended school there since September 2015 and understood and spoke French fluently.

Author: Camille Druilhet