Judgment of the Supreme Court on the return of a child relocated without the father’s consent from the Republic of Armenia to Ukraine (case № 613/1185/19)

This judgement concerns a father’s claim to return his minor children to their habitual residence in Ukraine after their relocation abroad to the Republic of Armenia by their mother.

The trial and appellate courts denied the claim on different legal grounds. The trial court failed to account for the international element in the dispute, applying only domestic law. The appellate court argued that the effective remedy for the claimant was to approach the Central Authority of the state of habitual residence or another Contracting State under Articles 8–11 of the 1980 Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention), rather than the court.

The Supreme Court overturned the previous judgements and remanded the case to the trial court for a new hearing, making the following legal conclusions:

1. The claimant has the right to:

• Apply to the Central Authority of the child’s habitual residence (in Ukraine, the Ministry of Justice).
• Apply to the Central Authority of the state where the child has been relocated.
• File a case in court.

2. The Hague Convention allows courts of Contracting States to hear child abduction cases without prior recourse to Central Authorities.

3. Filing a request with a Central Authority does not preclude the claimant from initiating court proceedings.

The Supreme Court highlighted unresolved key issues of jurisdiction:

• Was Ukraine the children’s habitual residence before their relocation?
• Have the children established a new habitual residence outside Ukraine?
• Have the children adapted to the new environment?
• If the habitual residence cannot be established, where are the children primarily residing as a result of the relocation?
• Has the return procedure initiated in the foreign state under the Hague Convention been completed?

According to Articles 5 and 7 of the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement, and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, if a child’s habitual residence changes, jurisdiction lies with the state of the new habitual residence.