Nuances of the 1980 Hague Convention on the Civil Aspects of International Child Abduction Application in Ukraine

The concept of the child abduction appeared comparatively recently in Ukraine. Art.3 of Hague Convention about the civil legal aspects of child abduction, determines moving or capture of child as illegal, in case if rights for committeeship above a child are violated, in accordance with the legislation of the state in which a child constantly lived to his moving or capture; and if in the moment of moving or capture these rights were effectively carried out, collectively or individually, or would be carried out, if it were not for moving and capture.
Transferring of child from one state to another will be considered as illegal in case, if a child was taken away by one of parents (with whom the child doesnt live with for the moment of abduction) without getting permission on this deed from a parent with which a child constantly lived with. In foreign countries such a parent, (with whom a child lives constantly), named a tutor. In Ukraine the childs residence place is set in a judicial order. Such procedure is foreseen by the Civil Code of Ukraine and Civil procedure Code of Ukraine and Family Code of Ukraine.
With passing an act related to Hague convention, the judicial practice of Ukraine concerning international kidnapping is controversial. A court tries to balance between respect to inner law of the country requiring a return and childs welfare. The thin border between these two aspects leads to contradictory court practice. And it is, by the way, not only in Ukraine. Even in countries, where this question is improved, the contradictory court decisions exist.
A parent which abducts a child breaks the right of the appealing parent. Also, breaking the connection between a child and his tutor, he does damage to the emotional state of child. Usually he does not execute the foreign court ruling, which estimation we must respect. A rejection of lawsuit requirements is a direct violation of one parents right, which is defended not only by international legal acts, but also by the internal legislation of Ukraine. The result of the decision which obligates to leave a child in the hands of parent who broke the law, even in contradiction to the foreign court decision is the situation where the stealing party is a winner. It is follows that in a center of powers and cases is a child, but not parent or somebody else. Parental behavior is only one from many arguments in determining what will go on a childs benefit. Hague convention understands all complication of this problem and goes near it in a simply way: to return the stolen child immediately. And however, there are some exceptions such as - not to cause a numerous detriment to a child by returning him to the place of residence. This principle is used by a violating party, at least, in Ukraine. Frequently they try to attract the organ of Guardianship and trusteeship in the court process. It makes a judicial trial grows not into principal proceedings, but in decision of establishment the guardianship above a child and determination of his inhabitation! This is a gross violation of process.
Following foresaid, we shall say that the return from Ukraine is complicated with a high bureaucratize. Also taking into account the work-load of courts, the process can delay on a year yet and, anymore. One of the violators trumps is that during this time a child can already get used to the place of residence and to acclimatize, so the return him back can cause a moral harm and psychological trauma. Unfortunately, the judicial practice under childs illicit movement is very scanty and contradictory. Absence of skilled specialists in this sphere complicates the organization of a valid trial with a sufficient evidential base. And it is far not complete list of complications which will arise up in determination similar questions in a court. Therefore, it is certainly better to think of problems decision in advance. For example, on the stage of pre-marital relations you can turn for help to the practicing in area of international private law solicitor. A skilled solicitor will study your concrete situation, prognosticate possible legal consequences and propose alternative judicial decision of question with a glance to legal characteristics of spouses country jurisdiction.
ABOUT THE AUTHOR: Anna Hodakovska, InJurConsulting LLC
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