AVELLUM successfully represented a UK citizen in the Supreme Court of Ukraine (“Supreme Court”) in a dispute regarding the return of a wrongfully retained child to England.
The judgement of the Supreme Court will bring a new approach to dispute resolution related to international child abduction and will become a judicial precedent in Ukraine. The Supreme Court provided the first-ever clarification on the procedure for dispute resolution related to international child abduction, application of the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (“1980 Convention”), and interpretation of criteria for refusal to return a child to the state of permanent residence.
The Ministry of Justice of Ukraine filed a claim in early 2013. Over the last years, this case was repeatedly reviewed by Ukrainian courts of all instances, including the Supreme Court.
AVELLUM prepared a cassation appeal and a request seeking the renewal of the term of cassation appeal that were filed on behalf of the client with the High Specialised Court for Civil and Criminal Cases in early 2017. However, due to the judicial reform, it was late August 2018 when the new Supreme Court made its final decision.
Thus, the Supreme Court has rightfully held that the primary focus of the above 1980 Convention is that one parent or family member cannot independently decide to change the child’s place of permanent residence. The Court also noted that the child’s place of permanent residence is of major importance in restoring the status quo, since the illegal removal or retention of the child violates the child’s rights and interests, as well as the right (custody right) of the parent without whose consent the child was taken from the country of habitual residence.
The Supreme Court also highlighted that when considering the issue on returning the child to the home state, the issue of defining a person who will have custody rights in the future is not resolved. The issue of custody rights to be granted to one or both parents falls within the jurisdiction of competent authorities of the child’s country of permanent residence before the relocation.
The Supreme Court also provided official interpretation as to the application of Articles 8, 12, and 13 of the 1980 Convention, thus, shaping a new perspective on this issue in Ukraine.
AVELLUM team was led by associate Oleksandr Gubin under the supervision of partner Iryna Moroz.