Currently, more cases are observed when one of the parents independently, without the knowledge or consent of the other, takes the child abroad, and thereby violates the custodial rights and affects the child’s access by another parent. Moreover, it is necessary to keep in mind that such an action is illegal.
According to international legislation, one of the parents has no right to make a personal decision without the consent of the other on changing the child's permanent residence. The removal of a child is illegal if the child is taken abroad by one parent without prior consent, or is not returned from abroad within the period specified in the consent, consequently, the custodial rights are violated and it affects a child’s access by another parent. Children with dual citizenship (of both of the parents) and children who were born in so-called mixed families (one spouse is a citizen of Ukraine, the other is a national of a foreign country) are the most vulnerable to international child abduction in Ukraine.
The scenarios of international child abduction in Ukraine may vary, but the most common are the following:
● a father or a mother (a foreigner) crosses the border with the child, using the child's passport as a national of a foreign country;
● a mother or a father (a citizen of Ukraine) crosses the border with the child, using the child's passport as a citizen of Ukraine and the birth certificate, stating that the other parent is a foreigner (in this case, his or her consent for the child to travel abroad is not required);
● a mother or a father (a citizen of Ukraine) obtains a document confirming the joint residence of the child (in this case, one of the parents may solely decide, without the consent of the other parent, to travel abroad with the child for a period not exceeding 1 month per year) and crosses the border with the minor to never come back again.
Furthermore, a father or a mother (a citizen of Ukraine) living abroad may travel with the child to Ukraine, for example, to visit relatives and then stay without returning to the country of permanent residence.
To prevent the above-mentioned situations and to protect the rights of both parents and children, specific legal mechanisms were established. They ensure the return of children who have been illegally removed or retained in a foreign country.
Such mechanisms are provided for by the Hague Convention on the Civil Aspects of International Child Abduction, which entered into force for Ukraine on the 1st of September 2006, and are currently applied to relations with more than 80 Member Countries.
Under the Convention, the actions of a father or a mother under the following conditions shall be considered as an international abduction:
1) the child is under the age of 16;
2) the child was illegally removed or retained within the territory of a foreign country by one of the parents violating custodial rights and affecting the child’s access of another parent who exercised these rights;
3) the child had a permanent residence in a Member Country.
Each member country shall establish or designate an existing Central Authority to co-operate with the Central Authorities in another Member Country to ensure the return of the child(ren) and the fulfillment of other Convention’s functions.
The parent, whose child has been taken out of the country or retained abroad, violating his or her custodial rights, must apply for assistance in the return of the child to the Central Authority at the child's permanent residence before removal. Such an application shall 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 the retention of a child
● approximate location of the suspected person and the child along with justification of the child’s return by the applicant.
Special attention shall be paid to the fact that the place of child’s residence is decisive in resolving disputes about international child abduction, and both child’s or parents’ nationalities are irrelevant.
However, there are situations when the return of the child may be difficult or even impossible. For example, if more than a year has passed since the removal, and the child has adjusted to a new society, or if the child objects to return, and has reached the age when his/her opinion must be taken into consideration.
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