The State Executive Service may involve a psychologist due to the child's refusal to communicate with the father — position of the Supreme Court

The panel of judges of the Second Judicial Chamber of the Cassation Civil Court considered the cassation appeal in case No. 1309/9120/12 filed by the father who is trying to achieve effective enforcement of the court decision regarding his participation in the upbringing and communication with the child.

The case concerned the appeal against the inactivity of the state executor of the Shevchenkivskyi Department of the State Executive Service (SES) in Lviv and officials of the Western Interregional Department of the Ministry of Justice during the enforcement of the decision of the Zaliznychnyi District Court of Lviv dated February 20, 2013, which established the schedule of the father's participation in raising his daughter and the removal of obstacles to communication with her. The applicant insisted that for 10 years the enforcement was limited only to "reports of unsuccessful attempts to hold meetings and the child's refusal to see the applicant."

The courts of previous instances partially satisfied the complaint. The courts noted that the case materials contain no evidence of measures taken by the executor to ensure the enforcement of the decision on the father's participation in upbringing and communication with the child on these dates, nor is there evidence of the impossibility of its enforcement.

It was also taken into account that the applicant had repeatedly appealed against the actions of the executive service, and the courts previously ordered the development of a comprehensive strategy for enforcement of the decision, so a repeated resolution of similar claims is unnecessary.

Disagreeing with this decision, the applicant appealed to the Cassation Court.

However, the Ivano-Frankivsk Interregional Department of the Ministry of Justice of Ukraine stated in its response that the relevant powers of the interregional departments were changed after reorganization, and the leadership does not control the actions of state executors in enforcement proceedings. It was also noted that a comprehensive enforcement strategy had already been developed and approved in compliance with the previous Supreme Court ruling, including the involvement of a psychologist to ensure the child's contact with the father.

Position of the Supreme Court

The Supreme Court emphasized that a court decision that has entered into legal force is mandatory for execution, and enforcement proceedings are the final stage of the judicial process. However, the limits of judicial control in such disputes do not provide for repeated obligations of the authority to perform the same organizational actions if they have already been subject to judicial review and decisions have been made.

The Court drew attention to the fact that in this case the applicant repeatedly filed complaints about the actions and inactivity of state executors and officials of justice bodies, and as a result of such appeals, courts had already issued decisions obliging the organization of measures to ensure enforcement of the decision on the father's participation in upbringing and communication with the child.

The Supreme Court also rejected the arguments of the cassation appeal regarding the incorrect application of legal norms, noting that the courts of previous instances correctly applied the provisions of the Constitution of Ukraine, the Civil Procedure Code of Ukraine, and the Law of Ukraine "On Enforcement Proceedings." The Court stressed that the state executor is obliged to act within the law and take measures to enforce the decision, but the assessment of the effectiveness of already approved organizational decisions cannot automatically be grounds for recognizing inactivity in the absence of new violations or failure to perform specific duties.

The enforcement of decisions on establishing visitation with a child and removing obstacles to visitation is regulated by special rules of Article 64-1 of the Law of Ukraine "On Enforcement Proceedings," according to which enforcement of a decision on establishing visitation with a child consists in ensuring that the debtor provides the claimant with visits with the child in the manner determined by the decision.

In particular, the state executor checks the debtor's compliance with this decision at the time and place of visitation specified in the decision, and if these are not specified by the decision, the check is carried out at the time and place of visitation determined by the state executor.

The Supreme Court took into account that a Comprehensive Strategy for the compulsory enforcement of the court decision had already been developed in this case. According to the strategy, the involvement of a psychologist is intended to support the child in stressful situations, assist in assessing the child's psycho-emotional state, and consider behavioral characteristics during the establishment of contact with the father. It is also envisaged that the specialist will analyze the reasons for the child's refusal to communicate, identify ways to remove obstacles, and promote the formation of stable psychological contact and trusting communication. For this purpose, the state executor must involve a psychologist and provide them with a list of issues related to the enforcement of the court decision.

The Supreme Court separately noted that the case materials contain no evidence of the ineffectiveness of this Comprehensive Strategy provided it is properly and conscientiously implemented by all involved parties.

In conclusion, the Supreme Court dismissed the cassation appeal and left the decisions of the courts of first and appellate instances unchanged, agreeing with their conclusions regarding the absence of grounds for canceling the adopted decisions.

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