Family disputes have a significant share among the cases considered by the courts. One of the most common categories of disputes between parents is disputes over the child’s place of residence and scheduling.
One of the fundamental provisions of the constitutional order in Ukraine is the equality of constitutional rights and freedoms and the equality of all before the law, and in Part 3 of Art. 24 of the Constitution separately enshrines the equal rights of women and men.
The family is one of the most important social institutions, which in particular is necessary for the harmonious development of the child, which is also enshrined in the Constitution. In Art. 51 states that each spouse has equal rights and responsibilities in marriage and family, which is equally protected by the state as paternity and maternity. This article is one of the principles of family law of Ukraine and is specified in a number of norms. Thus, in accordance with Part 1 of Art. 141 of the Family Code of Ukraine, mother and father have equal rights and responsibilities with respect to the child, regardless of whether they were married to each other. Provisions of Art. 11 of the Law of Ukraine “On Child Protection” stipulates that every child has the right to live in a family with parents or in the family of one of them and to parental care. Fathers and mothers have equal rights and responsibilities for their children.
Not so long ago, the Constitutional Court of Ukraine also stressed the importance of the principle of equality for the legal system in the decision of 12.04.2012 in the case № 9-rp / 2012 and noted that “equality and inadmissibility of discrimination are not only constitutional principles of the national legal system of Ukraine, but and the fundamental values of the world community. The equality of all people in their rights and freedoms guaranteed by the Constitution of Ukraine means the need to provide them with equal legal opportunities of both material and procedural nature for the realization of the same rights and freedoms in terms of content and scope. ”
However, the implementation of these provisions in practice is extremely difficult and often leads to discrimination against men in ensuring equal parental rights for the child, as there are still widespread stereotypes about the roles of women and men in marriage, the division of family responsibilities, the ability and opportunities for raising children.
For a long time, courts considered this category of cases based on the principle enshrined in the Declaration of the Rights of the Child that a child should not divorce his or her mother unless there are exceptional circumstances. That is, essentially the presumption of leaving the child with the mother. This conclusion was made by the Supreme Court of Ukraine in the decision of December 14, 2016 in case № 6-2445tss16, namely “Article 161 of the IC of Ukraine and principle 6 of the Declaration of the Rights of the Child, on the obligation to take into account principle 6 of the Declaration of the Rights of the Child. that a minor child should not, except in exceptional circumstances, be divorced from his mother. ”
This position was wrong not only because of outdated and stereotypical notions of the role of father and mother in the family, but also from a purely legal point of view. The Declaration of the Rights of the Child of November 20, 1959 is not an international treaty within the meaning of the Vienna Convention on the Law of Treaties of May 23, 1969 and the Law of Ukraine “On International Treaties of Ukraine” and does not contain provisions on its entry into force. In this regard, the Declaration of the Rights of the Child does not require the consent of the Verkhovna Rada of Ukraine to be binding and is not part of the national legislation of Ukraine.
Correct the significant bias of Themis in the direction of the mother and begin to find a balance in the implementation of the rights of mothers and fathers based on the principle of ensuring the best interests of the child became more realistic after the decision of the ECtHR in the case “MS against Ukraine ”of 11 July 2017 (№ 2091/13). The ECtHR found that Art. 8 of the European Convention in determining the child’s place of residence and stated that “the national court in deciding the case should be based on the principle of ensuring the best interests of the child” and not on other provisions.
More than a year later, the Grand Chamber of the Supreme Court analyzed in detail the case of determining the child’s place of residence and in the decision of 17.10.2018 in case № 402/428/16-ts departed from the conclusions of the Supreme Court in case № 6-2445tss16 and developed a different legal position, namely, “that in determining the child’s place of residence, priority shall be given to the best interests of the child by virtue of the requirements of Article 3 of the Convention on the Rights of the Child of 20 November 1989”. This legal position is more perfect in terms of law enforcement and legal reasoning. And it also corresponds to the modern understanding of the rights of the child, which is based on four fundamental principles, one of which is to ensure the best interests of the child.
As practice shows, the Supreme Court adheres to this position, but there is no such sequence in the courts of lower instances. A significant number of courts of first instance still base their decision on the Supreme Court’s legal opinion on the case № 6-2445tss16 and Principle 6 of the Declaration of the Rights of the Child, and in the absence of exceptional circumstances leave the child with the mother to ensure the best interests of the child. it is not a question. In accordance with Part 4 of Art. 263 GIC when choosing and applying the rule of law to the disputed legal relationship, the court takes into account the conclusions on the application of the relevant rules of law set out in the decisions of the Supreme Court, which in turn calls into question the legality and validity of such decisions of courts of first instance. The appellate courts take more account of the relevant legal position of the Supreme Court, but there are still many cases of incorrect application of substantive law to non-compliance with the legal positions of the Supreme Court.
INTERNATIONAL EXPERIENCE. A PROBLEM THAT HAS BEEN SOLVED A LONG TIME AGO
If we move away from domestic jurisprudence and look at how such cases are considered by international human rights institutions and what international documents and principles underlie decisions, we will see that this issue is quite common, and mechanisms for resolving such cases are developed and established.
There is now a broad consensus in support of the idea that all decisions about children should be based on their best interests. It is the category of “ensuring the best interests of the child” that is the cornerstone of cases involving children in international human rights institutions, such as the European Court of Justice and the UN Committee on the Rights of the Child.
Thus, the ECtHR invests two aspects in the concept of “best interests of the child”. On the one hand, these interests require that the child’s ties to his or her family be maintained, except in cases where the family has proved particularly unsuitable. It follows that family ties can be severed only in exceptional cases and that every effort must be made to preserve personal relationships and, if and when possible, to “restore” the family (§ 59 Gnahoré v. France № 40031 / 98).
On the other hand, it is also clear that it is in the best interests of the child to ensure his or her development in a healthy environment, and parents cannot be given the right under Article 8 of the Convention to take measures that may harm the child’s health and development (§ 50 Elsholz v. Germany [GC] № 25735/94; § 71 Maršálek v. the Czech Republic № 8153/04).
That is, there is no presumption in favor of one of the spouses and it cannot be. In determining the child’s place of residence, the court must analyze many circumstances and make decisions in the interests of the child and not one of the parents, or limit themselves to a dry statement of the law.
The category of “best interests of the child” was developed in the most detailed and meaningful way by the UN profile committee, which applies and interprets the UN Convention on the Rights of the Child of November 20, 1989, ratified by the Verkhovna Rada of Ukraine on February 27, 1991 and in accordance with the Constitution.
It should be emphasized that this Convention was adopted 30 years after the Declaration of the Rights of the Child; corresponds to the modern understanding of human rights; is an international treaty that is binding on Ukraine and is part of national law.
So in Part 1 of Art. Article 3 of this Convention stipulates that in all actions concerning children, whether carried out by public or private social welfare institutions, courts, administrative or legislative authorities, the best interests of the child shall be a primary consideration.
According to paragraphs. (a) paragraph 6 of the General Comments of the UN Committee on the Rights of the Child № 14 (2013) on the right of the child to give priority to the best interests of the child, paragraph 3 of Article 3 is a rule of direct action, ie does not require the adoption of relevant laws for implementation into national law , and it can be referred to in the courts.
The best interests of the child are the right, principle and rule of procedure, which are based on the assessment of all elements that reflect the interests of the child or children in specific circumstances. In assessing and determining the best interests of the child in order to decide on the application of a particular measure should act as follows:
first, taking into account the specific circumstances of the case, it is necessary to determine what the relevant elements of the best interests assessment are, to fill them with specific content and to determine the significance of each of them in relation to the others;
secondly, to this end, it is necessary to follow the rules that provide legal guarantees and the proper exercise of this right (paragraph 46 of the General Comment of the UN Committee on the Rights of the Child № 14 (2013)).
In the light of these considerations, the Committee considers that, in relation to the situation under consideration, which is relevant and to be taken into account in assessing and determining the best interests of the child, there are such elements as: the views of the child; individuality of the child; preserving the family environment and maintaining relationships; care, protection and safety of the child; vulnerable position; the child’s right to health; the child’s right to education.
It should be emphasized that the baseline assessment of best interests is a general assessment of all relevant elements that determine the best interests of the child, with a balanced assessment of the importance of each compared to others (paragraph 80 of the UN Committee on the Rights of the Child № 14 (2013)).
In the decision in the case “N.R. v. Paraguay »№ CRC / C / 83 / D / 30/2017 of 03.02.2020 on the implementation of the court decision establishing the schedule of communication between father and daughter The UN Committee on the Rights of the Child has made a number of conclusions that may be useful in Ukrainian jurisprudence .
The Committee analyzed the circumstances of the case in the context of ensuring the daughter’s right to support on a regular basis personal relationships and direct contact with her father, as the daughter-father relationship is critical to the child’s development and should have been considered as an internal consideration. In the same context, the case was to be considered by state bodies.
In accordance with paragraph 3 of Art. 9 of the Convention, States parties are obliged to respect the right of a child divorced from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, unless this is contrary to the principle of the best interests of the child. Such connections are especially important in cases where the parents have stopped living together or live in different countries.
The Committee considers that litigation to establish the child’s right to communicate with one of the parents should be expeditious, as lost time may have irreparable consequences for their relationship. This also includes the prompt execution of decisions taken as a result of such cases.
Due to the fact that the decision, which established the schedule of communication, was not implemented for 2 years, there was a problem of gradual removal of the daughter from the father, which in turn violates the right under paragraph 3 of Art. 9 of the Convention and harmed the best interests of the child.
Therefore, the model according to which the consideration of cases related to determining the child’s place of residence and determining the schedule of communication with the child should take place through the prism of the child’s rights and aim to ensure its best interests must be applied by courts and other bodies involved. such cases. Also, cases in this category should be considered fairly quickly, and decisions should be enforced, because the opposite situation could lead to a deterioration of the child’s relationship with one of the parents and, consequently, harm its interests.
THE CUSTODY AND CARE AUTHORITY IS A GRAY CARDINAL THAT DISCRIMINATES
Special attention should be paid to the body of guardianship and trusteeship, because this body can make decisions and determine the schedule of communication, as well as provide appropriate opinions to the court in these cases. Since these decisions directly affect the child, his rights and interests, the guardianship authority in accordance with paragraph 1 of Art. Article 3 of the UN Convention on the Rights of the Child also obliges to give priority to the best interests of the child.
As practice shows, the vast majority of conclusions and decisions of guardianship authorities are of a formal nature, the general wording describes the reasons for the relevant decisions and conclusions. For example, it is not clear the principle by which guardianship authorities determine the amount of time children have to communicate with one parent and how the balance of communication on a regular basis, personal relationships and direct contact with both parents is ensured.
The guardianship authorities are completely inspired by the principle of parental equality, according to which the mother and father have equal rights and responsibilities towards the child, regardless of whether they were married to each other. At the same time, they not only violate the rights of parents, but also harm the interests of the child, because for the harmonious development of the child it is necessary to communicate with both mother and father. It is in the case of full-fledged communication with both parents that the child develops full-fledged ideas about the family, and otherwise it can be an obstacle to building his own family.
When determining the child’s place of residence, guardianship authorities generally recommend determining the child’s place of residence with the mother. However, the text of the conclusions does not show that when providing such recommendations, the guardianship authorities aim to ensure the best interests of the child, so we can conclude that the provision of such recommendations is influenced by stereotypes about the role of women and men in marriage, the division between family responsibilities, skills and opportunities to raise children.
Such administrative practice of guardianship authorities leads to indirect discrimination of men in resolving cases of this category, ie gender-neutral regulations due to gender stereotypes are applied in a discriminatory manner towards men.
In addition to the already mentioned norms, which establish equality in a broad sense and the relevant norms of the Family Code, the Law on Ensuring Equal Rights and Opportunities for Women and Men emphasizes the equality of parents, as well as the equality of motherhood and fatherhood. So according to Art. 3 of this law, one of the main priorities of the policy to ensure equal rights and opportunities for women and men is to support the family, the formation of responsible motherhood and fatherhood.
The existence of the problem of discrimination against men as a practice of international human rights institutions, tau and developed on the basis of this practice “soft law” of international organizations. In its Resolution of the Parliamentary Assembly of the Council of Europe “Equality and shared parental responsibility: the role of fathers” № 2079 of 2 October 2015, the Assembly strongly stated that it is the development of shared parental responsibility that helps to overcome gender stereotypes regarding the roles of women and men in the family and is a reflection of the sociological changes that have taken place over the last 50 years. In this regard, the Parliamentary Assembly called on all its members, including Ukraine, to ensure equal rights and rights of parents with regard to their children through legislation and administrative practice.
In the decision of the UN Committee on the Rights of the Child in the already mentioned case “N.R. v. Paraguay contacts with both parents on a regular basis, and in particular on issues raised in the Committee’s General Comment № 14.
Such training is necessary for guardianship authorities because they do not understand the rights of the child and do not aim to ensure the best interests of the child, so they do not fully investigate all circumstances and make decisions that violate both the rights of the child and parental rights without indirect discrimination.
Summing up the above, it should be noted that currently decisions in cases of determining the place of residence of children and establishing a schedule of communication are not made in the interests of the child. Significant is not taken into account when making decisions
the number of provisions of international treaties, which is primarily an obstacle to the realization of the rights of the child to ensure its best interests, as well as a violation of relevant international obligations. In order to fully realize the rights of the child and ensure its best interests, it is necessary to bring judicial and administrative practice in this category of cases in line with the Convention on the Rights of the Child. Representatives of the parties should justify their position on the basis of the best interests of the child and require that the decision-making body also proceed from the principle of ensuring the best interests of the child and have them as the main goal.
It is necessary to train guardianship staff separately, because they determine the decisions at the first stage of cases, which are extremely important, and due to the length of court proceedings, their decisions can have irreparable consequences for the rights of the child and the relationship between child .
If you have any questions or need legal advice, you can contact us via e-mail neofelis.lg@gmail.com or by phone 050 471 7771. Law Firm “Neofelis Lo Group” has extensive experience in this categories of cases and successfully represents its clients in public authorities.
Kateryna Daineko Lawyer of Neofelis Lo Group JSC