Ukrainian children abroad: what to do if the child was taken away by foreign services

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Against the background of the global problems that Ukraine faced due to the full-scale armed aggression of the Russian Federation, we have another challenge: the removal of children from Ukrainian families abroad.

I personally had to intervene and provide legal assistance in several such cases. On the one hand, for Ukrainian realities, the situation would be an ordinary everyday matter, for foreign countries, where families from Ukraine are under temporary protection, it is a reason to accuse parents of violating the rights of the child and even temporarily imprison or blackmail them. Not always justified.

The deeper she delved into the problem, the more she understood that it already has a systemic nature. And it requires the intervention not only of consulates and lawyers, but also the same systematic and comprehensive solution at the level of state bodies. What to do if the child was still taken abroad, and the parents were placed in places of temporary detention?

Imagine the situation. A Ukrainian woman, saving her two children aged 8 and 16 from a full-scale invasion, goes abroad. Temporary protection is found in Germany. What she feels, what challenges she overcomes every day, how the integration into a new society goes and why it is important to find a job, there is no need to describe and tell.

Many Ukrainian families have experienced all this firsthand and know the details firsthand. But when the mother started working, and the children stayed at home, the police and social services came to the family at the request of a neighbor. But on the first visit, they limited themselves to a warning. The second time – it will already be withdrawal.

One more case. Mother and teenage son in Italy. For the fact that she gave her son a bribe, she spent a week in custody, and the child was temporarily taken away.

Case in Cyprus. Here, both the mother and the nanny were temporarily placed in a place of temporary detention because the 10-year-old son complained about the parents to the school psychologist.

Even last year, the case with the model children’s home of the Vasyliev family from Kherson, which has been over 15 years old and had ten children aged 8 to 17.5 years, became public. They got to Poland, but later all the children were taken away. Only after 2 months, when the trials were already in progress, thanks to information publicity and the intervention of the Ministry of Social Policy, the Ministry of Foreign Affairs, the Office of the Ombudsman, the consulate, 8 children returned to their families and to Ukraine.

These are all examples of how to escape from one war and get into an equally stressful situation, but already abroad.

According to the latest estimates of the Office of the United Nations High Commissioner for Refugees, more than 6.3 million Ukrainians are currently abroad, a third of them are children.

According to information from the Office of the Ombudsman, the number of children removed from Ukrainian families abroad was 215. Most in Poland, Germany, Spain and Italy. As we can see from the examples, we are talking not only about biological parents, but also about adoptive parents, foster parents, and about the removal of minors from the parents of the mother or father, who crossed the border with their grandchildren only with a power of attorney.

Why then is this happening when, it seemed, a completely everyday matter for Ukraine, like leaving a younger child under the supervision of an older one or entrusting grandchildren to a grandmother or grandfather, is a criminal offense or a violation of the rights of a child abroad?

Legal analysis and parent testimony prove that ignorance of the laws of a foreign jurisdiction is the main reason for removal. But anywhere, ignorance of the law does not exempt from responsibility. For example, the grandmother is not the official guardian of the child, and therefore minors are considered unaccompanied children under the laws of the host country.

For example, in Spain, the legislator determined that parents should usually take care of children. If the parents are unable to exercise guardianship and parental responsibilities for a minor child, the judge may appoint a third person as the child’s legal guardian with equivalent rights.

If the adult accompanying the child is neither a parent nor a legal guardian, there is always a risk of removal. However, if before the full-scale invasion of the Russian Federation into Ukraine, the Spanish authorities automatically applied removal protocols, then as of June 2022, the approach to children arriving from Ukraine has changed: the circumstances, family ties, and relationships between adults and minors are analyzed.

But if this has already happened, and the child is evacuated without his family, then copies of documents certifying the identity of the child and parents, for example, a passport, birth certificate, identification number, etc., must be carried with them. In addition, parents must draw up a letter certified by a notary public, social services or the Spanish embassy in Ukraine, explaining where and with whom the child is going. Already in the host country, it is desirable to legally formalize the relationship between the child and the actual guardian.

In Poland, there is also an opportunity in the legal field to secure guardianship for, say, the grandmother or another relative of the child through the guardianship court.

According to the law “On assistance to citizens of Ukraine in connection with the armed conflict on the territory of the country”, the institute of temporary guardianship and the rights of the temporary guardian are equated with the rights of adoptive parents. You should still know that the guardian does not have such broad powers as the parents. Although he is responsible for the day-to-day care and representation of the child, he can only make decisions about day-to-day matters.

For more important matters regarding the child, such as surgery, travel abroad, the temporary guardian must obtain the permission of the guardianship court.

The unusual situation in Italy. Local courts appoint guardians who are Italian citizens to some children who already have legal representatives in accordance with the legislation of Ukraine. As a result, they are separated from their legal representatives and they organize permanent residence in the families of residents.

We are talking about minor orphans and children deprived of parental care, who were evacuated in an organized manner from the war zone or from temporarily occupied territories abroad.

According to the provisions of the 1980 European Convention on the Recognition and Enforcement of Custody Decisions and the Resumption of Custody of Children, a custody decision made in one Contracting State shall be recognized and enforced in any other Contracting State. In such a case, it is difficult to assess the intentions and predict further actions of the Italian authorities, it is difficult to determine whether these actions are protection of the interests and rights of the child, but from the point of view of international law, it is worth talking about its non-compliance.

Regarding the rules when a child can be left unattended.

In most countries, there are no fixed limits on the minimum age at which a child can be left alone without supervision. But, for example, in Polish law, leaving a child under the age of 7 years old without supervision is considered a crime if it poses a risk to him. The risk, of course, depends on the situation, the age of the child, and the length of time they are unsupervised.

The authorities of Spain may regard the stay of a small child without supervision as its helplessness, and therefore, on the part of the parents, it is neglect or failure to meet the needs of the child. In such a case, a seizure may occur, and potentially a criminal case as well.

Under European regulations, parents or guardians may face a range of social measures if the relevant services consider that parental duties are not in the best interests of the child. This is, in particular, insufficient care, cruel treatment. Problems with behavior, social adaptation are also a risk and a reason for which services may visit parents.

Ukraine’s position regarding all these cases boils down to the fact that Ukrainian citizens are temporarily abroad, and all cases of restriction of the rights of parents and legal representatives of Ukrainian children must be transferred to the jurisdiction of Ukraine.

However, as we can see, the problem is systemic, multifaceted and not resolved. The Association of Lawyers of Ukraine during my tenure as president has already joined the solution of the problem.

Today, work continues at the level of the Ombudsman’s Office and the International Bar Association, which has an extensive network of offices around the world. And they are ready to connect international lawyers to protect the interests of children and parents in the jurisdictions where they are located.

We also have to work out an algorithm of actions, what to do if there is a risk of the child being taken away or it has already happened and the parents face temporary arrest and court. But, obviously, it’s not just about lawyers. The solution must be comprehensive to solve the current problem. In the future, the implementation of European norms awaits the Ukrainian legislation. This is a requirement of the time on the way to European integration.

Anna Ogrenchuk, president of the Association of Lawyers of Ukraine in 2021-2023, managing partner of LCF Law Group, especially for UP. Life

Publications in the “View” section are not editorial articles and reflect exclusively the author’s point of view.

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