UKRAINE LEGAL UPDATE
25 September 2022
The Supreme Court lays down a test for determining whether a Ukrainian court has jurisdiction to hear a 1980 Hague Convention claim for returning a child from abroad. Before accepting a dispute the court must satisfy itself that the child, before being removed from Ukraine, had habitual residence in the country. Nor is applying to court contingent upon exhausting the administrative remedies under the Convention.
In this case a father in Ukraine agreed for the mother to take their children to Armenia for a time, but she never brought them back. The local court, to which the father applied to order a return, denied the claim.
The appeal court canceled the trial court’s decision, but still ruled against the father. It said the father had sought a wrong remedy, as he should have pursued an administrative procedure under the 1980 Hague convention on the civil aspects of child abduction.
The Supreme Court said that both courts were wrong. The local court had failed to see that the case involved a foreign element, and so wrongly applied only domestic law. The appeal court had erred in ruling that the father had to exhaust administrative remedies before going to court.
The Supreme Court indicated that a Ukrainian court has jurisdiction where a child, before being taken abroad, had permanent (habitual) residence in Ukraine rather than just physically present in the country. Accordingly, in deciding whether to accept or dismiss the proceedings, the court must answer the following questions:
Did the child have Ukraine as his permanent place of residence?
Did the child choose permanent residence abroad (after leaving Ukraine)?
Did the child become settled in the new environment (abroad)?
If it is impossible to establish the child’s permanent place of residence, then in what country is he staying following the removal from Ukraine?
Has a procedure to return the child initiated in a foreign country under the rules of the 1980 Hague Convention been completed?
If the court, under this test, finds that it has jurisdiction, it must decide the case on the merits. Otherwise it must dismiss the proceedings.
In this case the Supreme Court itself was not able, on the facts as established by the lower courts, to make a new decision. So it returned the case to the local court for a new trial based on the findings of law made by the Court.