Child protection in Ukraine: family law frameworks and the application of the 1996 Hague Convention

Abstract This article discusses child protection mechanisms in Ukrainian domestic law – primarily family law – and analyses the practice of Ukrainian courts in applying the 1996 Hague Convention. Focus is placed on understanding the concept of ‘child’ and the legal status of children in Ukrainian law, remedies for child protection in family law, determining international jurisdiction under the 1996 Hague Convention, and understanding the concept of ‘habitual residence of the child’ within Ukrainian courts. The article rejects the view of the Civil Cassation Court regarding the sequence of application of Articles 5–7 of the 1996 Hague Convention, since it is necessary to first exclude the possibility of determining jurisdiction on the grounds of Articles 6 and 7 of the Convention and only then analyse whether jurisdiction can be established on the basis of Article 5(1) of the Convention. The article expresses the opinion that if the circumstances of the case allow jurisdiction to be determined on the basis of both Article 6(1) and Article 7 of the 1996 Hague Convention, jurisdiction should be determined on the basis of Article 6(1) of this Convention. It concludes that measures that ultimately lead to the return of a child, when for some reason the return order under the 1980 Hague Convention is not enforced, are ‘cases of urgency’ within the meaning of Article 11 of the 1996 Hague Convention.