The applicable Ukrainian legislation as well as the provisions of the international human rights regulations establish the general principle of equality of parental rights and obligations. Despite this fact, the Supreme Court of Ukraine (the “SCU”) in its recent resolution of December 14, 2016 in case No. 6-2445цс16 expressed its legal position that eliminates equality of the parental rights. According to the Ukrainian procedural law, the legal position of the SCU is binding on all state authorities and should be considered by other courts of general jurisdiction when applying the same provisions.
In case No. 6-2445цс16 the SCU upheld a decision of the first instance court which dismissed the claim for determination of the place of residence of two minor children (under 14 years old) with their father and granted a similar counterclaim filed by the mother.
The factual background of the case is as follows. The children’s father and mother were financially secure, had their own residential property and were able to properly bring up their children. While their son was studying abroad, the father acting on his own changed the daughter`s place of residence with him. The father complained that the mother allegedly removed herself from proper upbringing. The guardianship authority recommended the court to determine the children`s place of residence with father. The children also expressed stronger sympathy to their father. Moreover, the mother had done nothing to obtain determination of the children`s place of residence with her in accordance with the Ukrainian applicable law (under a notarized agreement, guardianship authority’s decision or court decision) before the date of a father`s lawsuit.
Despite those facts, the SCU expressed a legal position that the mother may be separated with her minor child only if exceptional circumstances, in particular, those listed in Art. 161 (2) of the Family Code of Ukraine, exist (the mother has no separate source of income, abuses alcohol or drugs, can harm the development of her child by immoral behavior). The SCU noted that in this case the first instance court found that mother had a permanent place of living, was employed, earned her living and ensured all conditions for living, education and development of her children. Considering these facts and the conditions that higher instance courts had found no exceptional circumstances for separating the children from their mother, the SCU found the decision of the first instance court as substantiated and lawful.
The SCU justified its position with reference to the provision of Principle 6 of the Declaration of the Rights of the Child proclaimed by General Assembly Resolution 1386 (XIV) of November 20, 1959 (the “Declaration”), under which “a child of tender years shall not, save in exceptional circumstances, be separated from his mother”. However, this provision contradicts the provisions of the Convention on the Rights of the Child of November 20, 1989 (entered into force for Ukraine on September 27, 1991) (the “Convention”) which also emphasizes the equality of parental rights. Moreover, Art. 9 of the Convention provides that where the parents are living separately and a decision must be made as to the child’s place of residence such decision should be passed according to the best interests of the child. It is important that the Convention as an international treaty is a part of national legislation of Ukraine and a source of law. At the same time, the Declaration is not an international treaty. It is a declarative, recommendatory, and non-binding act of the UN General Assembly. Therefore, the application of Principle 6 of the Declaration by the SCU instead of the international legally binding Convention and Ukrainian legislation on equality of parental rights seems inadmissible to us.
Consequently, the SCU has set a precedent which could result in discrimination of male parents. Now, the male parents’ chances of winning lawsuits for determining the place of residence of their minor children with them in cases where they have relatively equal status and living conditions with women seem remote.