Application of the Hague Conventions on the Protection of the Rights of the Child and challenges for judicial practice in resolving cases concerning children during the war in Ukraine

The war has given rise to inquiries from the courts of other states regarding certain aspects of procedural law in international family disputes: the application of the provisions of the Civil Procedure Code of Ukraine and the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters of 1970. For foreign courts, the issue of obtaining the testimony of a parent (a Ukrainian citizen residing in Ukraine) in a trial held abroad is of great importance.

Yuliia Cherniak, Supreme Court Judge in the Civil Cassation Court, member of the International Hague Network of Judges, spoke about this during the roundtable "Application of the Hague Conventions on the Protection of Children's Rights in Time of War in Ukraine". Participants discussed the application of the Convention on the Civil Aspects of International Child Abduction of 1980 (the 1980 Convention) and the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children of 1996 (the 1996 Convention) and the challenges faced by the competent authorities in implementing them in Ukraine under martial law.

Yuliia Cherniak noted that from June 2021 to October 2023, as a judge in the International Hague Network of Judges, she received and processed 13 requests from fellow judges from the Federal Republic of Germany, the Kingdom of Spain, the United Kingdom of Great Britain and Northern Ireland, the Republic of Austria, the Czech Republic and Switzerland. These requests vary by subject.

The first requests concerned information on Ukrainian family law. In particular, the following questions were raised: a) the legal force (validity) of the agreement between the biological parents of the child (a married couple from Germany) and the surrogate mother (a woman from Ukraine who gave birth to the child) on joint custody of the child; b) recognition of paternity and the possibility of establishing "joint custody of the child", assessment of the notarised declaration of paternity of the mother as proper evidence in court proceedings; c) application of various aspects of the adoption institution.

A specific request was received at the end of 2022 from a judge of the Kingdom of Spain - a request for assistance in ensuring that Ukrainian courts comply with the requirements of the 1980 Convention on the time limits for resolving a case to ensure the return of a minor child to the Kingdom of Spain (Article 11 of the Convention) and the application of Article 16 of the Convention. The mother of the child, who is a defendant in a case in Spain, brought an action in a Ukrainian court to determine the child's place of residence. A local court ruling opened proceedings in the case.

Yuliia Cherniak noted that a Supreme Court judge has no right to interfere in the administration of justice by local and appellate courts. At the same time, she sent a letter to the relevant local court informing it of the mentioned judicial request and emphasising the need for the courts to comply with the provisions of the 1980 Convention and the Civil Procedure Code of Ukraine when considering the said court cases. In particular, according to Art. 16 of the Convention, the judicial or administrative authorities of the Contracting State to whose territory the child has been transferred or in whose territory the child is detained shall not decide on the merits of the custody issue until it is determined that the child should not be returned in accordance with this Convention or until an application is made in accordance with this Convention within a reasonable period after receipt of the notification.

The judge also cited the decision of the Joint Chamber of the Civil Cassation Court of the Supreme Court of 18 September 2023 in case No. 545/2247/18, which states that the issue of custody cannot be resolved on the merits until the issue of the child's return is resolved. As a result, the local court ruled that the proceedings to determine the child's place of residence be closed under Article 16 of the 1980 Convention.

In 2023, several requests were received from foreign judges hearing civil cases concerning applications for the return of a minor child to Ukraine under the 1980 Convention. The judges asked whether the relevant region of Ukraine was safe in light of the hostilities.

In 2022-2023, when foreign courts reviewed cases brought by Ukrainian citizens who sought the return of their children to Ukraine under the 1980 Convention, Yuliia Cherniak observed that the majority of claims were dismissed based on paragraph b of Part 1 of Article 13 of the Convention. The reasoning behind such court decisions is that: the entire territory of Ukraine has been declared a war zone since 24 February 2022; it is impossible to predict which areas and targets will be hit in the future; artillery shelling may occur at any time. Moreover, foreign courts have pointed out that the overall development of the conflict does not offer real prospects for a peaceful and speedy resolution - on the contrary, there is a tendency for further escalation of hostilities.

The speaker noted that at present the content of requests from foreign judges indicates that cases on the return of a child to Ukraine are being resolved, including taking into account the list of territories where hostilities are (were) being conducted or temporarily occupied by the Russian Federation, approved by Order of the Ministry of Reintegration of the Temporarily Occupied Territories of Ukraine No. 309 of 22 December 2022. Ukrainian case law has established that the security situation and restrictions related to the hostilities and their consequences are part of the subject matter of proof in cases of return of children under the 1980 Convention.

The judge stressed, however, that security issues cannot be the sole basis for determining a child's place of residence. Other aspects must be taken into account in each individual case, including family circumstances, the child's whereabouts, living conditions, attendance at educational institutions, social contacts and the child's opinion. The mere fact that martial law has been declared on the territory of Ukraine is not a sufficient ground to satisfy a claim for the return of a child from Ukraine to the State of his or her former habitual residence in accordance with the 1980 Convention and to determine the child's place of residence with one of the parents, in particular with the parent residing outside Ukraine (in accordance with the 1996 Convention).

Yuliia Cherniak also spoke about the challenges faced by judicial practice (both domestic and foreign) in resolving cases involving children under the Hague Conventions in times of war, which can be addressed, inter alia, through the exchange of information within the International Hague Network of Judges. The following issues need to be addressed.

1. The need to determine the child's habitual residence as the main criterion for establishing international jurisdiction under the 1996 Convention and the correct application of Articles 5 and 7 of the Convention. Many children have left Ukraine as a result of the military aggression of the Russian Federation in Ukraine, but they are not refugees, so Article 5 of the Convention should apply, not Article 6. This involves deciding whether jurisdiction should be retained by the Ukrainian court (as the court of the habitual residence) or recognised by the court of a foreign state (as the state of the new habitual residence). This problem is illustrated by the resolution of the Civil Cassation Court of the Supreme Court of 28 June 2023 in case No. 372/2558/21 and the ruling of the Civil Cassation Court of the Supreme Court of 12 June 2023 in case No. 359/2356/21.
2. Application of the institution of transfer of jurisdiction. In August 2023, Yuliia Cherniak received a request from the United Kingdom of Great Britain and Northern Ireland to clarify Ukrainian legislation on the procedure for the implementation of Article 8 of the 1996 Convention (transfer of jurisdiction) in Ukraine. The judge noted that the concept of forum non conveniens and the institution of transferring jurisdiction to a court of another state are not traditional to the Ukrainian legal system and are currently unknown in Ukrainian domestic law. However, the practice of their application will be formed, given that they are provided for by the 1996 Convention (to which Ukraine acceded in 2006) and the 2005 Convention on Choice of Court Agreements (ratified by Ukraine in 2021).
3. Addressing the issue of jurisdictional competition and multiple litigation (Article 13 of the 1996 Convention). If the parties are unable to provide sufficient evidence to establish the presence of lis alibi pendens, the court that initiated the proceedings second may consider it appropriate to refer the issue to the relevant court in the other Contracting State. Such an appeal may be made either by direct communication between judges or through the International Hague Network of Judges.
4. Cooperation in the field of amicable settlement of disputes, including through the exchange of experience of judges in the use of mediation in international family disputes. All the Hague Conventions on Children emphasise the need to take all possible measures to ensure voluntary resolution of the dispute. Thus, lengthy, costly and emotionally draining legal proceedings to resolve a family dispute often fail to provide a comprehensive solution to the dispute. Practice shows that the best way to resolve a dispute is for the child's parents to agree on the merits of the case.

The roundtable was organised in the framework of the working visit to Ukraine of the Secretary General of the Hague Conference on Private International Law, Christophe Bernasconi, dedicated to the 20th anniversary of Ukraine's membership of the Hague Conference.