Families separated by war: Supreme Court judge considers specifics of disputes over children with foreign element

During June-July 2025, Supreme Court Judge of the Civil Cassation Court Yuliia Cherniak held a series of webinars and trainings for judges and other professionals working with children in the justice system as part of a pilot project to introduce specialisation of judges in family and children's issues. The focus of the training was on disputes involving children with a foreign element, the application of international law in resolving them, cross-border child support, the importance and functioning of the International Hague Network of Judges (IHNJ), etc.

During the lecture and practical exercises on "Certain categories of court cases on ensuring the right of a child to a family with a foreign element", Yuliia Cherniak noted that in almost three years since the full-scale invasion of Ukraine by the Russian Federation, many families have become divided: one of the spouses remained in Ukraine, the other spouse (mostly the wife and children) went abroad, subsequently acquiring the status of a person with temporary protection in the territory of a certain EU member state.

Such "separate" residence of family members requires clarification of whether or how the acquisition of temporary protection status affects the regulation of family relations. Also, issues related to the determination of the law that should be applied to the regulation of such family relations, the establishment of international jurisdiction, the collection of evidence abroad, and the procedure for the recognition and enforcement of foreign court decisions need to be resolved.

The lecturer noted that although the number of family cases with a foreign element is increasing, they are not typical for many Ukrainian judges. Such cases involve a special procedure for conducting the trial and deciding the case on the merits.

The judge emphasised that the conventions ratified by Ukraine and adopted under the auspices of the Hague Conference on Private International Law play a very important role in resolving international family disputes. From the point of view of structure, a distinctive feature of these international legal documents is that they unify primarily procedural rules: a) the rules of the institution of international jurisdiction, b) recognition and enforcement of foreign judgments, c) international judicial assistance, and thus consolidate international standards for the consideration and resolution of international family disputes concerning children.

In addition, the Hague Conventions on Parental Responsibility of 1996 and on the International Recovery of Child Support and Other Forms of Family Maintenance of 2007 unify conflict of laws rules, determining which state's substantive law should be applied to resolve the merits of a particular international family dispute. These international legal documents were the subject of a comprehensive study and practical application during the webinar and training.

As part of the webinar, the programme participants listened to three mini-lectures-presentations on the following topics.

The topic of the first lecture was "Resolution of international family disputes concerning children by courts in accordance with the Hague Convention on Parental Responsibility 1996". Yuliia Cherniak addressed the following issues: the objectives and scope of application of the Convention on Parental Responsibility; jurisdictional matters — the child’s habitual residence as the main criterion, the jurisdiction of the state of presence in cases concerning displaced children and refugee children, the protection of the jurisdiction of the state of the child’s habitual residence in cases of unlawful removal or retention, the mechanism of transferring jurisdiction to a “more convenient” court in order to protect the child, and the resolution of conflicts of jurisdiction; children displaced from Ukraine to other Contracting States as a result of the war — possible protection scenarios — how jurisdiction should be determined (with examples from Ukrainian and foreign case law).

The second lecture was entitled “Adjudication by the courts of cases on international child support recovery”. The starting premise of the issue is that a maintenance obligation with a foreign element gives rise to the following key legal questions that must be resolved by a judge: I – International jurisdiction: which state’s national court has competence to hear the case; II – Applicable law: which state’s law is to be applied to resolve the case on the merits; III – Recognition and enforcement of a foreign judgment on child support: what is the procedure for recognizing and enforcing a judgment of a Ukrainian court abroad and of a foreign court in Ukraine. The procedure for resolving these issues was analyzed on the basis of the Law of Ukraine “On Private International Law” and Ukraine’s international treaties concerning the international enforcement of child support. Special attention was given to the rules of the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, as well as the 2007 Hague Protocol on the Law Applicable to Maintenance Obligations.   

At the third lecture “The importance and functioning of the International Hague Network of Judges (IHNJ)” Yuliia Cherniak, using the example of her own four-year experience as a contact judge from Ukraine and processing 28 requests from foreign judges, spoke about the general principles of judicial communications within the IHNJ, how and for whom the IHNJ works, and gave examples of the most successful judicial cooperation. She also addressed purely practical issues of how and what information a national judge should provide to a contact judge in order to apply to the IHNJ, and drew the participants' attention to the Supreme Court's Letter to the Courts of Appeal on IHNJ of 24 September 2024.

During the trainings, the participants (judges of local courts of Ukraine, psychologists, and employees of children's services) solved four case studies based on live cases considered by the Supreme Court, followed by analysis and commentary by the trainer.

The first case concerned the concept of "habitual residence of the child" as the main criterion for determining international jurisdiction, and analysed the jurisdictional rules set out in the 1996 Hague Convention on Parental Responsibility, which can be applied to Ukrainian children who have been granted temporary protection in the EU. Based on the circumstances of this case, the author illustrated the significance of the child's place of (temporary) residence in the host state, the loss of the previous and the acquisition of a new habitual residence of the child in terms of the jurisdictional rules of the Convention.

In the second case, the training participants had to determine the specifics of considering cases on the return of a child in accordance with the Hague Convention on the Civil Aspects of International Child Abduction of 1980, in particular: the procedure for determining the competent court; the role of the guardianship and custody authority and psychologist in this category of cases; the range of circumstances to be clarified; application of the provisions of the Hague Convention of 1980 in the context of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

On the example of the third case, the authors analysed the possibility of returning to Ukraine a child who was illegally removed (detained) under the Hague Convention of 1980 during martial law, and provided arguments for and against the application of paragraph b of Article 13 of the Convention in such a situation.

Considering the fourth case, the training participants had to focus on the institution of guardianship as a means of protecting the interests of the child in accordance with the 1996 Hague Convention on Parental Responsibility and address, in particular, the following issues: which state's law should be applied to establish guardianship over a child - a citizen of Ukraine - residing in the Federal Republic of Germany, and how the Ukrainian court should decide on the petition of the child's guardians to recognise the German court's decision on the establishment of guardianship and appointment of guardians in Ukraine.

In each case, Yuliia Cherniak drew attention to the assistance that can be provided by foreign judges within the framework of the International Hague Network of Judges and how to properly formulate a request to the liaison (contact) judge.

The training was also attended by Supreme Court judges Pavlo Parkhomenko, Olena Bilokon and Yevhen Synelnykov.

At the end of the training, the students thanked the Supreme Court judges and shared their thoughts on the training. They noted that they understood how complex family cases with a foreign element are and why international coordination and interagency cooperation are important. The cases helped to clarify the algorithm of actions in handling such cases, gave them more confidence, eliminated the fear of uncertainty, and improved their understanding of international regulations.

The webinars and trainings are part of the training programme "Child-centred approach to cases on the right of the child to a family: practical aspects of implementation. Strengthening the capacity of the supporting professional community". These are the final events of the training programme for judges in family and children's cases, which began in March this year as part of the pilot project on the specialisation of judges in family cases, initiated by the Civil Cassation Court of the Supreme Court and the Interagency Coordination Council on Juvenile Justice with the support of UNICEF Ukraine and the NGO Volunteer.