The Supreme Court has outlined the boundaries: not hearing a child is not an automatic basis for refusing to recognize a foreign decision

The Supreme Court of Ukraine formulated an important legal position in the case on the recognition of the decision of the Polish court on the exercise of parental rights and determination of the place of residence of the child. The key conclusion: the fact of not hearing the child cannot automatically serve as a basis for refusing to recognize a foreign court decision.

The essence of the dispute

The initiator of the application was the father of the child – a Polish citizen, who asked the Ukrainian court to recognize and grant permission to enforce the decision of the Polish court. This decision determined the child’s residence with the father and settled the issue of parental rights.

The courts of first and appellate instances refused to satisfy the petition. The main argument was the lack of hearing the child in the foreign proceedings, which, in their opinion, contradicts the provisions of international law, in particular the 1996 Hague Convention.

Positions of the parties

In the cassation appeal, the father insisted that the Polish court had taken measures to hear the child, but this was prevented by the mother’s behavior. It also emphasized that the assessment of the child’s psychological state in Ukraine is not decisive for the procedure for recognizing a foreign decision.

Instead, the mother argued that the failure to hear the child is a significant violation and sufficient grounds for refusing to recognize the decision.

Legal analysis of the Supreme Court

The Supreme Court drew attention to several key aspects:

the child’s right to be heard is enshrined in the Convention on the Rights of the Child, but its implementation depends on age, maturity and specific circumstances;
not only the fact of the hearing itself is important, but also whether the child was given a real opportunity to express his or her opinion;
if such an opportunity was not realized due to the behavior of one of the parents, this cannot create procedural advantages for him or her.

The Court emphasized that national courts, when considering issues of recognition of foreign decisions, should not re-evaluate the case on the merits, in particular, determine the best interests of the child — this has already been done by the court that issued the decision.

Key conclusion

The Supreme Court formulated a principled position:

failure to hear the child in itself is not an unconditional basis for refusing to recognize a foreign judgment.

Instead, the courts must determine:

whether the foreign court took sufficient measures to ensure the child’s right to be heard;
whether the failure to hear was a consequence of the parties’ bad faith;
whether the recognition of the judgment is not contrary to the public order of Ukraine, taking into account the interests of the child.
Outcome of the review

The Supreme Court partially satisfied the cassation appeal, overturned the appellate court’s decision, and remanded the case for a new trial.