Ukrainian courts cannot review the substance of a foreign court's decision regarding the child's place of residence – Supreme Court

The exercise of the child's right to express their own opinion must be assessed through the lens of the good faith of the parties involved, since the inability to hear the child in a foreign court due to the fault of one parent cannot be grounds for refusing to recognize the court decision in Ukraine. The priority of international treaties provides for the recognition of decisions regarding parental responsibility without conducting a special procedure, limiting the powers of national courts only to controlling compliance with procedural guarantees.

This conclusion was made by the Supreme Court in the composition of the panel of judges of the First Judicial Chamber of the Civil Cassation Court.

In the case under review, a citizen of the Republic of Poland applied to the court for recognition and enforcement of a Polish court decision regarding parental responsibility for the minor daughter of the parties. This decision determined the child's place of residence with the father, the exercise of his parental rights, limited the mother's rights, and ordered her to pay court costs.

Lower courts refused to recognize the Polish court decision due to procedural violations and threats to the child's interests. They noted that the foreign court did not hear the child's opinion, which contradicts the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children, and that moving to another country due to lack of language knowledge and change of environment could cause psychological trauma and social isolation for the child. The first instance court refused to grant permission for enforcement of the foreign court decision regarding property obligations, citing voluntary compliance by the debtor.

The Supreme Court's Civil Cassation Chamber annulled the appellate court's ruling, sent the case for a new hearing to the appellate court, and formulated the following legal conclusions.

According to Article 12 of the UN Convention on the Rights of the Child and the provisions of the 1996 Hague Convention, the child must be ensured the right to freely express their views on all matters affecting them.

Assessing the conclusions of the lower courts that the child was not heard in the Polish court, the Supreme Court's Civil Cassation Chamber noted that the foreign court initiated this procedure, but it did not take place precisely because of the mother's actions. At the same time, the Supreme Court emphasized that a party cannot gain a privileged position due to their bad faith behavior. Thus, the conclusion to refuse recognition solely because the child was not heard was deemed premature, as the courts did not assess whether the foreign court took all possible measures.

A court decision determining the child's place of residence is essentially a recognition decision and, by content, a non-property decision. Considering the absence in the court decision on the child's place of residence of any obligation for the debtor (the parent with whom the child actually resides) to perform actions, such a decision is not subject to enforcement.

Taking into account the above, the decision of the district court for the capital city of Warsaw dated August 9, 2023, regarding the exercise of parental rights over the minor born on October 28, 2016, is a foreign non-property court decision that is not subject to enforcement and, pursuant to Article 48 of the 1994 Treaty on Legal Assistance, is recognized in Ukraine without conducting recognition procedures.

The Supreme Court also drew attention to the fact that Article 48 of the Treaty between Ukraine and the Republic of Poland on Legal Assistance and Legal Relations in Civil and Criminal Matters of 1994 provides that the contracting states agreed that court decisions in family matters of a non-property nature are recognized in the territories of both states without applying the recognition procedure.

Article 471 of the Civil Procedure Code of Ukraine establishes that a foreign court decision that is not subject to enforcement is recognized in Ukraine if its recognition is provided for by international treaties, the consent to the binding nature of which was given by the Verkhovna Rada of Ukraine, or on the principle of reciprocity.

Thus, the Supreme Court's Civil Cassation Chamber stated that when considering the issue of recognizing a foreign decision, the national court does not have the authority to review the case on the merits or re-evaluate whether this decision corresponds to the best interests of the child, since such an assessment was already made by the court that decided on the merits. Although a change in circumstances (for example, prolonged residence in another environment) may be taken into account in exceptional cases, this does not give the right to a full review of the foreign decision.

Regarding the recovery of court costs, the Supreme Court indicated that the appellate court did not properly verify the applicant's arguments that he actually did not receive the money. The applicant claimed that the mother's motion to deposit funds with the court in the Republic of Poland was returned to her for revision, and therefore the conclusion about voluntary compliance with the court decision by the debtor was not properly supported by evidence.

Supreme Court Civil Cassation Chamber ruling dated April 29, 2026, No. 522/9011/25 (proceeding No. 61-1434sv26).

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