Judgment of the Supreme Court on the jurisdiction of national courts to resolve matters concerning a child subject to an enforceable return judgment to another state (case № 545/2247/18)

The Supreme Court of Ukraine addressed the jurisdictional issue in cases concerning the determination of a child’s residence when a binding judgment has been issued for the child’s return to another state under the 1980 Hague Convention on the Civil Aspects of International Child Abduction and the 1996 Hague Convention on Parental Responsibility. This judgment involved a child born in the United Kingdom (UK) and then unlawfully relocated to Ukraine by the mother without the father’s consent and contrary to decisions of UK family courts.

The Supreme Court emphasized that under the 1980 Hague Convention on the Civil Aspects of International Child Abduction and the 1996 Hague Convention on Parental Responsibility, jurisdiction to decide such matters remains with the courts of the child’s habitual residence prior to the wrongful relocation. The Court reiterated that a child’s prolonged stay in another state does not transfer jurisdiction unless the conditions of Article 7(1)(b) of the 1996 Hague Convention are fulfilled. These conditions require: (1) the child to reside in the new state for at least one year after the custodial parent became aware of the child’s location, (2) no return request to be submitted during this period, and (3) the child to have adapted to the new environment.

In this case, the father had promptly filed a return request under the 1980 Hague Convention, leading to a Ukrainian court issuing a judgment mandating the child’s return to the UK. However, this judgment remained unenforced.

The Supreme Court concluded that, without the consent of UK authorities to transfer jurisdiction or evidence of the child meeting adaptation criteria, the case did not fall under the jurisdiction of Ukrainian courts. Consequently, the Supreme Court annulled prior judgments by Ukrainian lower courts on the merits of the residence dispute and closed the proceedings, citing a lack of jurisdiction under domestic and international law. This judgment reaffirmed the primacy of the child’s habitual residence in determining jurisdiction and upheld the obligation to respect prior return orders under international conventions.