Feb. 14, 2014, 2 a.m.
(PHOTO: Intent)
On September 14, 2006, the Verkhovna Rada of Ukraine adopted a resolution on Ukraine's accession to the 1996 Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures of Protection of Children, which entered into force for Ukraine on February 1, 2008.
Article 1 of the Convention defines
- a state whose authorities have jurisdiction to take measures to protect the person or property of a child that are necessary in a particular case,
- the choice of law to be applied in resolving issues related to the protection of the child's person or property
- the procedure for recognizing and enforcing measures taken by another state to protect the person or property of a child.
According to Article 1 of the Convention, these measures may be applied to issues of parental responsibility, guardianship, in particular, the right to determine the child's place of residence, as well as the right to communication, guardianship and similar institutions, placement of a child in a foster family or in guardianship and custody institutions, supervision by a state body of a child under guardianship, as well as taking measures to protect the person or property of a child.
However, the Convention does not apply to the establishment or contestation of the relationship between parents and child; adoption; the child's name and surname; acquisition of full legal capacity; maintenance obligations; trust or inheritance; social security; public measures of a general nature concerning education or health; measures taken as a result of punishable offenses committed by children; decisions on asylum and immigration.
For your information: the key idea of the Convention is to establish rules that allow to clearly define the Contracting State whose authorities are competent to take measures to protect the child, as well as to facilitate the resolution of situations in which the authority to take measures to protect the person or property of the child may be simultaneously exercised by judicial or administrative authorities of different States. The Convention does not specify which judicial or administrative authority should decide the case in each particular state, as this is determined by the domestic law of that state, but it does answer the question of which state's authorities are competent to deal with a particular case in which child protection measures should be taken.
Thus, according to the general rule set forth in Article 5 of the Convention, the judicial or administrative authorities of the Contracting State of the child's habitual residence are competent to take measures to protect the child or his or her property.
If the child's habitual residence is changed to another Contracting State, the authorities of the new habitual residence will be competent. In addition, the change of the child's habitual residence does not cancel the measures that have already been taken. Such measures shall remain in force until, if necessary, the authorities of the state of the child's new habitual residence take other necessary measures.
Articles 6, 7 and 10 of the Convention set out exceptions to the general rule, and Articles 8 and 9 provide for a mechanism by which jurisdiction to take measures aimed at protecting the person and property of the child may be transferred from the authorities of the Contracting States whose competence is determined by the Convention to the authorities of the Contracting States that do not have it. Such a transfer can take place only if certain conditions and requirements are met, and only to the authorities of the other Contracting State with which the child has a connection.
At the same time, according to Article 11 of the Convention, in all urgent cases, the authorities of any State in whose territory the child or property belonging to the child is located shall have the right to take any necessary measures of protection that are temporary in nature.
Thus, the rules for determining the competence of the authorities contained in Section II of the Convention form a comprehensive system, the application of which in the Contracting States allows to resolve a wide range of controversial issues that arise when determining which state authorities have the authority to take measures to protect a child or his or her property.
The Convention provides that when taking measures to protect a child, the competent authorities shall apply their own legislation, i.e. the domestic law of their state (Article 15(1) of the Convention). However, paragraph 2 of this Article provides for an exception to this rule: if it is required to protect the person or property of the child, the competent authorities may, as an exception, apply or take into account the law of another State with which the case has a substantial connection. However, when deciding on the application of the law of another State, the best interests of the child should always be taken into account.
Measures taken by the authorities of a Contracting State shall be recognized in all other Contracting States by force of law (Article 23 of the Convention). Recognition by operation of law means that no procedural steps are required for the measures to be recognized in the requested state and to be effective. At the same time, Article 23(2) of the Convention contains an exhaustive list of grounds on which recognition may be denied.
If the protection measures taken in one State require enforcement in another Contracting State, then at the request of the interested party they shall be recognized as enforceable or registered for the purpose of enforcement in such other State in accordance with the procedure determined by the law of the latter State (Article 26 of the Convention). Thus, based on the provisions of the Convention, the decision of a foreign authority is recognized and permission is granted for its enforcement.
Ensuring the effective functioning of the Convention and the application of its provisions is impossible without ensuring cooperation between the competent authorities of the States Parties to the Convention. In order to facilitate such cooperation in order to achieve the objectives of the Convention, as well as to fulfill the duties assigned by the Convention to such authorities, each Contracting State shall designate a Central Authority. In Ukraine, the Ministry of Justice of Ukraine has been designated as the Central Authority, and any requests should be sent through the Ministry of Justice.
The Central Authorities shall take appropriate steps to ensure that their competent authorities comply with requests and provide information relating to child protection (based on the provisions of Articles 31, 32 and 34 of the Convention).
The parties to the Convention are: Albania, Australia, Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Ecuador, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Latvia, Lithuania, Luxembourg, Malta, Monaco, Montenegro, Morocco, Kingdom of the Netherlands, Republic of Poland, Portugal, Romania, Russian Federation, Slovak Republic, Republic of Slovenia, Spain, Sweden, Switzerland, United Kingdom, Uruguay, Armenia, Dominican Republic, Lesotho.
In case of problematic issues regarding parental responsibility of one of the parents, citizens can exercise their right and apply to the Ministry of Justice of Ukraine with the relevant documents and receive assistance.
Semenenko L.G,
Head of the Tatarbunary District Department of Justice