Currently, cases, when one parent without the knowledge or consent of the other takes the child abroad and thereby violates the rights of custody of the child and access to the child by another parent, are widespread. At the same time, it is necessary to bear in mind that such actions are against the law.
According to the international legislation, one parent can’t make a personal decision (without the consent of the other) to change the child's permanent residence. Removing of a child is illegal if it is taken abroad by one parent without prior consent or if child is not returned from abroad within the prescribed period of the other's consent, if this violates the rights of custody of the child and access to the child by another parent.The most sensitive to international child abduction in Ukraine are children, that have dual citizenship (both mother and father) and were born in so-called mixed families (one spouse is a citizen of Ukraine, the other is a citizen of a foreign country).
The scenarios of international child abduction in Ukraine could be different but the most common are the following:
● the father or the mother (foreigners) crosses the border with the child using the child's passport as a citizen of another country;● the mother or the father (citizens of Ukraine) crosses the border with the child using the child's passport as a citizen of Ukraine and the birth certificate of the child, stating that the other parent is a foreigner (in such a case his or her consent to travel with the child abroad is not required);● the mother or the father (citizens of Ukraine) receives a document confirming the residence of the child with them (in this case, one of the parents may independently decide, without the consent of the other parent, to travel abroad with the child for a period not exceeding 1 month per year), and cross the border with the child, after that they do not return to Ukraine.
Furthermore, the father or the mother (citizens of Ukraine) living in another country could travel with the child to Ukraine, for example, to visit relatives and then stay here without returning with the child to their country of permanent residence.In these situations, specific legal mechanisms were established for the protection of parental and children rights to ensure the return to the country of permanent residence of children who have been illegally removed or illegally held in the territory of a foreign country.
Such mechanisms are provided for by the Hauge Convention on the Civil Aspects of International Child Abduction, entered into force for Ukraine on 1 September 2006, and is currently being applied to relations with other more than 80 Contracting States.
An international child abduction within the meaning of the Convention refers to the actions of a father or a mother under the following conditions:
1) the age of a child is under 16 years;2) the child was illegally removed or held in the territory of a foreign country by one of the parents in violation of the rights of custody and access to the child of another who actually carried out these rights;3) the child had a permanent residence in a Contracting State.
Each country shall establish or designate an existing Central Authority to co-operate with the Central Authorities in another Contracting States to ensure the return of children and the achievement of the other functions of the Convention.
The parent whose child has been displaced or detained in violation of his or her custody rights must apply to the Central Authority (at the child's permanent residence before removing) for assistance in securing the return of the child.
Such application should contain the most complete information about:
● the identity of the applicant, ● the identity of the child● the identity of the person suspected in the removal or in the retention of a child, ● the approximate location of their whereabouts, as well as justification of the grounds for the return of the child.
Special attention should be paid to the fact that the place of residence of the child is decisive in resolving disputes about international child abduction, and the citizenship of the child and the parents are irrelevant.
However, there are situations in which the return of the child may be difficult or impossible at all, for example, if more than a year has passed since the removal and the child has taken root in a new society, or if the child objects to returning and has reached the age and maturity at which he or she thought must be taken into account.
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