Ms. Aksana Filipishyna: "The father and mother have equal rights and obligations concerning the child"
During 2016 the Ukrainian Parliament Commissioner for Human Rights received a significant number of applies of citizens in them the issue of equality of parents in case of resolution of disputes for determination of the residence of the child was raised.
The explanation concerning this issue was provided by the Representative of the Commissioner for observance of the rights of the child, nondiscrimination and gender equality Ms. Aksana Filipishyna.
Resolution of disputes by determination of the residence of the child according to regulations of the current legislation of Ukraine is assigned to bodies of tutelage and guardianship and courts.
I want to focus attention that the national legal system of Ukraine, namely – article 141 of the Family code of Ukraine, established that mother, the father have the equal rights and obligations concerning the child irrespective of whether they were within marriage among themselves. Annulment of marriage between parents, their accommodation separately from the child doesn't influence volume of their rights and doesn't exempt from obligations concerning the child.
Besides, according to article 18 of the Convention on the Rights of the Child ratified by Ukraine on February 27, 1991 the State Parties make all possible efforts to ensure recognition of the principle of common and identical responsibility of both parents for education and development of the child.
Also according to article 24 of the Constitution of Ukraine citizens have equal constitutional rights and freedoms and are equal before the law.
However practice is recently observed when bodies of tutelage and guardianship and courts in case of the solution of this category of disputes often refer to the principle 6 of Declaration of the rights of the child which was proclaimed on November 20, 1959 by the resolution of the United Nations General Assembly, in this document it is mentioned that the juvenile child shan't, except those cases when there are exceptional circumstances, to be separated from the mother.
Applicants parents complain that with respect thereto, disputes between the father and mother by determination of the residence of the child often are solved for benefit of mother therefore the father's rights concerning his child are violated.
With respect thereto I pay attention that according to a preamble of the Declaration, its provisions have advisory nature for the UN State Parties in the sphere of forming of the national legal system.
In Ukraine the Constitution of Ukraine has the highest legal force. On the basis of the Constitution of Ukraine Laws and other regulatory legal acts which shall correspond to the Constitution are adopted.
Part of the national legal system of Ukraine are also the existing international agreements which consent to be bound is provided by the Verkhovna Rada of Ukraine.
Thus, as the Declaration of the rights of the child isn't the international treaty, this legal act has no obligatory nature in the territory of Ukraine.
In case of receipt to the Commissioner for Human Rights of claims of citizens concerning application by bodies of tutelage and guardianship of the principle 6 Declarations of the rights of the child in case of the dispute resolution concerning determination of the residence of the child, adequate measures of response for elimination of the mentioned violations of the law are undertaken.
At the same time I want to explain that if the decision on cases of determination of the residence of the child was adopted judicially, the Ukrainian Parliament Commissioner for Human Rights has no opportunity to review it or to change, because according to articles 124, 126, 129 of the Constitution of Ukraine justice in Ukraine is executed only by courts.
At the same time the current legislation foresees a number of measures for protection of the right to fair trial.
So, according to article 14 of the Law of Ukraine "On judicial system and the status of judges" participants of legal procedure and other persons have the right to appeal reconsideration of the case and in cases determined by the law – to cassation appeal of the judgment.
Besides, according to the Convention for the protection of human rights and fundamental freedoms ratified by Ukraine after all internal legal remedies were exhausted, according to the conventional principles of international law, and within six months from the date of delivering final judgment at the national level everyone has the right to the appeal to the European Court of Human Rights (article 35 of the Convention).