The City Court of Brno, Czech Republic, has ruled in a case of international child abduction, setting an important precedent for anyone dealing with similar situations. The court recognized the fact of abduction of a minor child, but, despite this, decided to refuse her return to Ukraine.
This is reported by Law and Business .
In 2022, a Ukrainian family received temporary protection in the Czech Republic. But family life did not work out there, and the woman and child later returned to Kyiv. A divorce action was filed in the homeland, during which the issue of determining the permanent place of residence of the child, the order of participation in the upbringing of the child was not resolved.
The child spent another summer vacation with his father, after which he did not return to his mother, but stayed to live in Prague. There she went to study at an educational institution.
Disagreeing with such circumstances, the woman appealed to the Czech court with a demand to return her child to her permanent place of residence in Kyiv, where all the necessary conditions for development and education were available, and there was no language barrier. At the same time, certificates from the education department of the district administration were provided about the child's attendance at a preschool education institution, individual training.
The father insisted on ensuring the best interests of the child, and concerns about the physical and psychological state of the minor child. He also provided certificates from an educational institution in Prague, a certificate of being registered with a pediatrician, an act of inspection of living conditions, a psychologist's report on the possibility of re-traumatization of a minor due to a violation of the sense of security, forced contact with the mother.
During the consideration of the case, the child's opinion was also heard through the psychologist. She expressed her desire to stay in the Czech Republic, because she was afraid of war and was frightened by air raid signals.
In this case, the court assumed that the substantive law is based on the Hague Convention on the Civil Legal Aspects of International Child Abduction dated October 25, 1980, to which Ukraine is a party. Therefore, the key question that the court considered was the following: whether the child is subject to return to the place of permanent residence. The court cautioned that it is impossible to decide the issue of guardianship (upbringing), maintenance of the child or contact of parents with the child in this proceeding. But there was no doubt that the child's usual place of residence is Kyiv. And the father illegally keeps her, without handing her over to the mother after contact with the child. Thereby, he committed international kidnapping in the sense of the Hague Convention.
The court carefully considered the arguments of the parties, in particular, paid attention to the father's reference to a significant number of damaged residential buildings, educational institutions, and injured persons who sought medical help in Kyiv.
In the end, the court noted that the child has the right to a peaceful childhood, psychological development, which is not fully possible in Kyiv. The child feels the general atmosphere of the war and at his age, he is naturally able to recognize and appreciate the differences between life in the Czech Republic and in Ukraine. At the same time, the territory of Kyiv cannot be considered completely safe, it is the capital, where important institutions are located.
Based on these considerations, the court concluded that returning to such a place would expose the child to a serious risk of physical and mental harm. A child in Ukraine could not only be in direct danger for physical health and life, but also be in constant stress. After all, the entire territory of Ukraine is in a state of war, and there is no doubt that there is no question of security in this territory.
Having assessed the evidence of each of the parties, taking into account that the concept of ensuring the best interests of the child is flexible and adaptable, determined on an individual basis taking into account the specific situation, the court came to the conclusion that there is a basis for refusing to return the child in accordance with Article 13(2) of the Hague Convention (disagreements child for return.)
In this way, the interests and needs of a particular child were assessed and, in order to minimize the negative consequences for her, the return to her place of permanent residence was refused due to the danger of causing serious physical or mental harm, which currently does not correspond to the best interests of the minor.
