Establishing the Fact of Birth in Temporarily Occupied Territories and Under Martial Law — Who Can Apply to the Court

The Supreme Court notes that the first part of Article 317 of the Civil Procedure Code of Ukraine establishes the circle of persons who may be applicants in cases concerning the establishment of the fact of a person's birth in territories where martial law has been introduced or in temporarily occupied territories.

Thus, applicants in such cases may be parents or one of them, their representatives, family members, guardians, custodians, persons who maintain and raise the child, or other lawful representatives of the child.

Applications for establishing the fact of a person's birth under Article 317 of the Civil Procedure Code of Ukraine were predominantly submitted by the mothers of the born children or both parents. In some cases, the applicants were the father of the child, less frequently the grandfather, grandmother, aunt, or uncle of the child.

In cases No. 711/4671/24, No. 751/5139/22, No. 463/1005/23, the applicants are the mother, father, and both parents respectively.

Decisions of the Prydniprovskyi District Court of Cherkasy dated June 13, 2024, in case No. 711/4671/24; Novozavodskyi District Court of Chernihiv dated December 2, 2022, in case No. 751/5139/22; Lychakivskyi District Court of Lviv dated February 15, 2023, in case No. 463/1005/23.

In case No. 749/23/23 concerning the establishment of the fact of a child's birth in a temporarily occupied territory, the applicant is the child's grandfather. The inability of the child's parents to apply to the court with such an application was justified by the fact that they are in the Autonomous Republic of Crimea, i.e., in a temporarily occupied territory, from which they cannot leave due to the absence of a birth certificate for the child.

In this case, there is no general access to the court decision, as the information is prohibited from disclosure according to paragraph 4 of part one of Article 7 of the Law of Ukraine "On Access to Court Decisions."

The applicant in case No. 279/3597/22 on establishing the fact of a child's birth in a temporarily occupied territory is the child's maternal aunt. The applicant applied to the court with a request to establish the fact of her nephew's birth in the temporarily occupied territory, as the parents are deprived of such an opportunity due to their continued stay in the temporarily occupied territory. The Korosten City District Court of Zhytomyr region satisfied the application.

Decision of the Korosten City District Court of Zhytomyr region dated August 22, 2022, in case No. 279/3597/22. There are also cases of grandmothers applying to the court with applications to establish the fact of a child's birth.

For example, decisions of the Vinnytsia District Court of Vinnytsia region dated September 14, 2022, in case No. 128/2073/22; Tatarbunarskyi District Court of Odesa region dated April 26, 2023, in case No. 515/605/23; Sosnivskyi District Court of Cherkasy dated May 18, 2022, in case No. 712/3433/22.

As court practice shows, applicants in this category of cases were also other relatives, in particular, in case No. 544/224/22 such a person was a great-aunt.

The legal fact she sought to establish was justified by the fact that her nephew entered into marriage, during which the couple had a son in the temporarily occupied territory. The child's parents do not have the status of internally displaced persons who moved to the government-controlled territory of Ukraine due to occupation, and therefore have no other documented place of residence in Ukraine except for Donetsk city.

By the decision of the Pyriatyn District Court of Poltava region dated February 16, 2022, in case No. 544/224/22, the application was granted.

The local court did not see grounds to doubt the information stated in the application to establish the fact of birth, given that the application was submitted by the great-aunt of the born person, while the child's parents are citizens of Ukraine, which according to Article 7 of the Law of Ukraine "On Citizenship of Ukraine" is a basis for the child to acquire Ukrainian citizenship by birth; they are in a registered marriage.

The above-mentioned composition of participants in the case does not contradict the norms of current legislation and the practice of the Supreme Court in similar legal relations (Supreme Court rulings dated June 26, 2024, in case No. 759/17678/22; March 13, 2024, in case No. 169/410/23; July 10, 2024, in case No. 761/32986/23; August 21, 2024, in case No. 752/2623/24).

Determining the Origin of a Child When Establishing the Fact of Birth in Temporarily Occupied Territories

The rights and obligations of the mother, father, and child are based on the child's origin from them, certified by the civil status registration authority in the manner established by the Family Code of Ukraine.

According to part one of Article 122 of the Family Code of Ukraine, a child conceived and/or born in marriage originates from the spouses. The origin of the child from the spouses is determined based on the marriage certificate and the document of the healthcare institution about the birth of the child by the wife.

If the mother and father of the child are not married to each other, the origin of the child from the mother is determined based on the document of the healthcare institution about the birth of the child by her. If the mother and father are not married, the origin of the child from the father is determined by the joint statement of the mother and father or by a court decision (Article 125 of the Family Code of Ukraine).

The origin of the child from the father is determined by the statement of a woman and a man who are not married to each other. Such a statement may be submitted both before and after the birth of the child to the civil status registration authority (part one of Article 126 of the Family Code of Ukraine).

In the absence of a statement, the right to submit which is established by Article 126 of this Code, paternity regarding the child may be recognized by a court decision (Article 128 of the Family Code of Ukraine).

According to part one of Article 135 of the Family Code of Ukraine, when a child is born to a mother who is not married, in cases where there is no joint statement of the parents, statement of the father, or court decision, the record about the father of the child in the Birth Registration Book is made under the surname and citizenship of the mother, and the first name and patronymic of the father of the child are recorded according to her indication.

In case of establishing the fact of a person's birth in temporarily occupied territories, the basis for entering information about the child's parents is the relevant court decision establishing such data (Supreme Court ruling dated August 21, 2024, in case No. 752/2623/24).

According to part three of Article 317 of the Civil Procedure Code of Ukraine, the decision on establishing the fact of a person's birth in a territory where martial or emergency law has been introduced, or in temporarily occupied territory of Ukraine, defined as such according to legislation, must indicate the data established by the court about the date and place of birth of the person, about their parents.

The court decision establishing such a fact is the basis for state registration of birth and for entering information about the child's parents by the civil status registration department at the place where the court decision was made (Supreme Court rulings dated November 23, 2022, in case No. 759/7001/22; March 13, 2024, in case No. 169/410/23; and April 24, 2024, in case No. 761/13911/23).

In the ruling dated June 26, 2024, in case No. 759/17678/22, the Supreme Court indicated that mentioning in the court decision of a person as the mother of children does not exceed the requirements of the application to establish the fact of a child's birth in temporarily occupied territory. A birth certificate issued in the temporarily occupied territory is not legally valid but may confirm that a certain institution, which does not operate according to Ukrainian law but de facto exists in the temporarily occupied territory, recorded the fact of the child's birth for a certain person.

An application to establish the fact of a child's birth submitted jointly to the court by the mother and father of the child is a joint statement of the child's parents who are not married, recognizing paternity. At the same time, the father, submitting an application to establish the fact of the child's birth from him, confirms his paternity, which provides grounds for entering the record about the father of the child in court order and excludes the application of the procedure for recording the father if paternity is not established (Supreme Court ruling dated July 10, 2024, in case No. 761/32986/23).

Analyzing the above, it can be concluded that when establishing the fact of a child's birth in temporarily occupied territories, the child's origin can be determined simultaneously.

Cases have also been identified where courts refused to open proceedings in such cases because, according to copies of birth certificates of children, their parents are citizens of the Russian Federation, and therefore the children acquired Russian citizenship in the prescribed manner.

Thus, in case No. 463/7464/22, the court refused to open proceedings because, having established that the child was born to parents who are citizens of the Russian Federation, it concluded that a dispute might arise regarding the state registration of the child and granting them Ukrainian citizenship.

Decision of the Lychakivskyi District Court of Lviv dated October 17, 2022, in case No. 463/7464/22.

A similar conclusion was made in the decision of the Lychakivskyi District Court of Lviv dated June 28, 2023, in case No. 463/5378/23.

In making such court decisions, the courts referred to the conclusion of the Grand Chamber of the Supreme Court set out in the ruling dated September 15, 2022, in case No. 9901/166/2. The Grand Chamber of the Supreme Court noted that acquisition or termination of Ukrainian citizenship is carried out by issuing decrees of the President of Ukraine.

Subscribe to our Telegram channel t.me/sudua and to Google News SUD.UA, as well as to our VIBER and WhatsApp pages on Facebook and Instagram to stay informed about the most important events.