Greetings. As a lawyer with many years of experience, I have analyzed the court decision you provided. Here is a detailed analysis:
1. The subject matter of the dispute is a mother’s lawsuit for the compulsory removal of a minor child from the father and the child’s return, as, in the plaintiff’s opinion, the father arbitrarily changed the child’s place of residence following a conflict.
2. The Supreme Court overturned the decisions of the lower courts because the courts took a formalistic approach to the case, dismissing the claim solely due to the absence of a prior decision determining the child’s place of residence. The Court emphasized that Article 162 of the Family Code of Ukraine, which allows for the removal of a child, must be applied by analogy of law even when the child’s official place of residence has not yet been determined by a court or guardianship authority. It is significant that the courts failed to ensure the mandatory participation of the guardianship and custody authority and did not clarify the reasons for the absence of their opinion, which constitutes a gross procedural violation. Furthermore, the Court pointed out the necessity of mandatorily verifying the allegations of domestic violence cited by the plaintiff, as this directly affects the child’s interests. The lower courts failed to evaluate the arguments regarding violence, which is a violation of the requirements for a comprehensive examination of evidence. Consequently, the Supreme Court stressed that the removal of a child is primarily a means of protecting the child’s interests, rather than merely a dispute between parents; therefore, the court is obligated to assess the actual living conditions for the child and any risks posed to them.
3. The Supreme Court decided to set aside the decisions of the courts of first and appellate instance (including the additional decision on court costs) and remit the case for a new trial to the court of first instance.
Note: In this decision, the Court departed from the legal position set forth in the Supreme Court resolution of October 3, 2018, in case No. 682/2778/17, regarding the application of Article 162 of the Family Code of Ukraine.
