The refusal to address the claim of grandparents to remove obstacles to raising a child and communicating with him/her does not constitute a valid reason for dismissing their claim to determine the ways of participation in the child's upbringing

A claim for the removal of obstacles to the upbringing of a child and communication with him or her is a claim for a prohibition of the conduct of a person who impedes another person in the exercise of his or her right, and is a separate way of protecting the violated right of grandparents to communicate with their grandchildren.

Dismissal of a claim for removal of obstacles to the upbringing of the child and communication with the child (due to lack of evidence of the obstacles or for other reasons) shall not be a reason for the court to refuse to protect and exercise the rights provided for in part 2 of Article 159, part 1 of Article 263 of the Family Code of Ukraine, i.e. to determine the manner in which the grandparents shall participate in the upbringing of the child and the place and time of their communication.

These conclusions on the application of the law were issued, in order to ensure the uniformity of case law, by the Joint Chamber of the Civil Cassation Court of the Supreme Court in the case of a grandparents' claim for an obligation not to interfere with communication with their granddaughter and to determine the method of participation in the child's upbringing and communication with her.

In the circumstances of this case, the daughter continued to live with her mother after the parents divorced. The man's parents and the defendant could not agree on the manner and procedure for the grandparents' involvement in the upbringing of their young granddaughter, so they filed a lawsuit.

The court of first instance did not find that the defendant was preventing the plaintiffs from communicating with the child, and partially satisfied the claim by setting out ways in which the grandparents could participate in the upbringing and communication with their granddaughter. The court of appeal changed the previous decision regarding the timing of visits with the child.

In the cassation appeal, the defendant argued that the courts had misapplied the provisions of Article 257 of the Family Code of Ukraine in resolving the dispute. Having found that there were no obstacles to communication with the grandparents' granddaughter, the courts wrongly concluded that the claims had been partially satisfied, referring to the relevant Supreme Court judgment.

The Joint Chamber of the Civil Cassation Court of the Supreme Court upheld the previous decisions and reached the following legal conclusions.

The interpretation of Art. 159 of the Family Code of Ukraine indicates that the legislator distinguishes between the requirements to determine the manner of participation in the upbringing of the child and the removal of obstacles to communication with the child and his/her upbringing.

Respect for private life and respect for family life are important rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms. In the case law of the European Court of Human Rights, the concept of "family life" within the meaning of Article 8 of the Convention is interpreted rather broadly and is not limited to marital relations, but may also include other real "family ties", in particular relations between a child and close relatives (e.g. grandparents), as the latter may play an important role in family life.

The right to respect for the family life of grandparents in relation to their grandchildren refers primarily to the right to maintain normal relations between grandparents and grandchildren through contact with them.

The Joint Chamber of the SC Civil Cassation Court stated that a court's dismissal of a claim to remove obstacles to the child's upbringing and communication with him/her (in case of failure to establish such obstacles) is not a ground for the court to dismiss another claim to determine the manner and procedure for the grandparents' participation in the child's upbringing. Otherwise, it would lead to formal obstacles to the grandparents' exercise of the rights provided for in part 2 of Article 159, part 1 of Article 263 of the Family Code of Ukraine, and could also lead to a violation of the guarantees provided for in Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

The Resolution of the Civil Cassation Court of the Supreme Court of 25 March 2024 in case No. 742/1716/23 (proceedings No. 61-17035сво23) - https://reyestr.court.gov.ua/Review/118070519.

This and other legal positions of the Supreme Court can be found in the Database of Legal Positions of the Supreme Court - https://lpd.court.gov.ua.