Legal advice

Departure of a minor child abroad

During full-scale military operations, the issue of saving life is especially acute, especially when it is the life of a child. Current refugee protection programs in many countries around the world provide support to women, especially mothers with children. Currently, in connection with this, there is a trend of increasingly frequent appeals to lawyers with questions - how and with whom does a child have the right to leave Ukraine and on the basis of which documents? They are answered by the lawyers of the "Repeshko and Partners" Bar Association.

According to Article 1 of the Law of Ukraine “On the Protection of Childhood” “a child is a person under the age of 18 (adult), if, according to the law applicable to him, he does not acquire the rights of an adult earlier”. In the middle of this age span, there is also a kind of gradation associated with a person’s fourteenth and sixteenth birthday. The Civil Code of Ukraine, in particular Article 313, provides for the right of a child who has reached the age of 16 to leave the country independently. That is, after reaching the appropriate age, you do not need to ask for permission from your parents to go abroad, it is done exclusively on the basis of a foreign passport. This norm was valid both before the start of hostilities, and it still exists in an unchanged version.

In light of the situation that has developed in connection with the adoption of changes to the legislation related to mobilization, it is necessary to note the following. According to the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine Regarding Certain Issues of Military Service, Mobilization and Military Registration”, Article 14 “Enlistment of Ukrainian Citizens for Military Registration” contained in the Law of Ukraine “On Military Duty” has been amended and military service”. It provides: “Every year during January-March, male citizens of Ukraine who turn 17 in the year of military registration are registered.” How the issue of border crossing by seventeen-year-old boys, who will be on military registration, will be resolved in the future is currently unknown, because the legislative changes have not entered into force, and by-laws have not been developed.

As a general rule, a child who has not reached the age of sixteen has the right to leave Ukraine only with the consent of parents (adoptive parents), guardians and accompanied by them or accompanied by persons authorized by them, except for cases provided for by law. In practice, before the start of hostilities, this meant that a child crossing the state border of Ukraine to go abroad had to be accompanied by one of the parents, having the following documents: foreign passport, original birth certificate, notarized permission from the second parent stating of specific countries where departure is planned, the original death certificate (in the case of the death of one of the parents), a court decision on the deprivation of parental rights of one of the parents, an extract from the birth certificate for single mothers and some others.

Currently, the situation has changed somewhat and adjusted to the realities of wartime. Children under the age of 16 are now allowed to leave Ukraine if they have a passport of a citizen of Ukraine or a birth certificate (in the absence of a passport of a citizen of Ukraine). Also, children who have reached the age of 14 can travel to Turkey and Georgia using the passport of a citizen of Ukraine, which contains a contactless electronic medium (ID card).

From a practical point of view, if there is such an opportunity, we still recommend that you get a foreign passport for your child. This will greatly simplify both the stay in the host country and the return to Ukraine.

The passport of a citizen of Ukraine for travel abroad is issued for a period of 4 years for children from birth, for a period of 10 years for citizens aged 16 and over. Currently, April 2024, the cost of issuing a passport is as follows:

  • registration within 20 working days, the amount of the administrative fee is UAH 958, including: the cost of the administrative service – UAH 352, the cost of the form – UAH 606;
  • for urgent (within 3-7 working days) registration, the amount of the administrative fee is 1,598 UAH, including: the cost of the administrative service – 992 UAH, the cost of the form – 606 UAH.

It should be noted that an application for the issuance of a passport by a person who has reached the age of 16 is submitted in person.

According to the “Procedure for issuing, issuing, exchanging, forwarding, withdrawing, returning to the state, destroying the passport of a citizen of Ukraine for travel abroad, its temporary detention and withdrawal”, approved by Resolution No. 152 of the Cabinet of Ministers of Ukraine dated 07.05.2014, for issuing a passport for travel to the following documents are submitted to the border:

  • application form (printed by a service employee who accepts documents directly on the spot);
  • passport of a citizen of Ukraine (for persons who have reached the age of 14);
  • a birth certificate or a document confirming the fact of birth issued by the competent authorities of a foreign state. If the parents or one of the parents of such a person at the time of his birth were foreigners or stateless persons, a certificate of registration of the person as a citizen of Ukraine is also submitted (in the case of issuing a passport for the first time using the means of the Registry);
  • documents confirming the payment of the administrative fee, or the original document on exemption from its payment (the amount of payments is indicated above, it is prohibited to charge additional funds;
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In addition, we recommend that you have a certificate of assignment of RNOCPP available.

An application for a passport for a person under 16 years of age is submitted by one of the parents (adoptive parents), guardians, custodians or other legal representatives in person or by a legal representative (the consent of the other parent/guardian is not required) in the presence of the child. In this case, the passport of the Ukrainian citizen of the father/legal representative is required.

We would like to draw your attention to the following important point – the spelling of the surname of the child and parents in the passport of a citizen of Ukraine for travel abroad. Since the last name is translated from the Ukrainian language into English letters in the foreign passport, and the translation rules allow some spelling variations in individual cases, carefully monitor that in the passports of the citizen of Ukraine for traveling abroad both the child and the parents have a complete spelling of spelling of surnames. To do this, when issuing a foreign passport for a child, be sure to take yours with you and show it to an employee of the migration service or the Central National Police Agency, because there is no single unified database from which it is possible to guess how the child’s last name will be written.

According to current regulations, if a child crosses the border accompanied by one parent, a notarized permission to leave from the other parent is not required. It is enough to have the previously mentioned documents in hand. But what to do when the situation has developed in such a way that the child can go abroad, but the parents cannot, or on the contrary, they are already waiting for the child abroad?

According to the “Rules for crossing the state border by citizens of Ukraine”, approved by Resolution No. 57 of the Cabinet of Ministers of Ukraine dated January 27, 1995, “Exit of children who have not reached the age of 16, accompanied by one of their parents, grandmother, grandfather, adult brother, sister, stepmother, stepfather or other persons authorized by one of the parents in a written application certified by the body of guardianship, is carried out without the notarized consent of the second parent and in the presence of a passport of a citizen of Ukraine or a birth certificate of a child (in the absence of a passport of a citizen of Ukraine)/documents containing information about the person on the basis of which the State Border Service will allow the crossing of the state border. At the same time, in the case of the introduction of a state of emergency or martial law on the territory of Ukraine, the decision to grant permission to leave Ukraine to a male person who accompanies a child who has not reached the age of 16 is taken taking into account the accompanying person’s membership in the list of categories of persons who are exempt from military service and mobilization, if she has confirmed documents.”

In practice, this means that when leaving with close relatives – grandmother, grandfather, stepmother, stepfather, or adult brothers or sisters, you need to have a child’s birth certificate and documents that confirm family ties (even if not notarized). Persons who are not relatives to cross the border with a child must have a written statement from one of the parents (must be certified by the guardianship authority) or a notarized permission for the child to travel abroad. At the same time, it is mandatory to have the child’s birth certificate.

However, it is necessary to carefully study the conditions of entry into the country to which the child is going. Each country independently sets the rules for the stay of certain age categories in it, and it may happen that a sixteen-year-old person leaves Ukraine, but to stay in another country she will need an adult guardian, or she will still need the notarized permission of at least one of her parents. In connection with this, a mirror problem arises – what to do with a father who wants to prohibit taking a child abroad?

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The decision of the Supreme Court as part of the panel of judges of the First Judicial Chamber of the Civil Court of Cassation dated June 12, 2023 in case No. 748/1575/22 (proceedings No. 61-3427св23) states: “In the absence of clear provisions in the national legislation, which would regulate the procedure for resolving the issue of the court’s application of a preventive temporary ban on the child’s departure from Ukraine and the subsequent cancellation of such a ban, the Supreme Court, based on the provisions of the Convention on Jurisdiction, Applicable Law, Recognition, implementation and cooperation regarding parental responsibility and measures to protect children and the Convention on Civil Legal Aspects of International Child Abduction, Article 5 of the CPC of Ukraine, considers that such temporary measures may be applied in case of proof that there is a risk of abduction (illegal transfer) of a child, who has a habitual residence in Ukraine”. In this case, we will give an example from court practice: “PERSON_1 appealed to the court with a lawsuit against PERSON_2 for the prohibition of the child leaving Ukraine without the father’s consent. The lawsuit is motivated by the fact that he and PERSON_2 are the parents of PERSON_3. The court established that there are no legal grounds for prohibiting the departure of a minor child outside of Ukraine without the consent of the father, since the plaintiff did not prove that the defendant created a real threat of illegal removal of the child.”

Currently, for some time, there is a myth that one of the child’s parents can apply to the State Border Service with an application, sending it by postal service or e-mail, which explains the circumstances why he does not want the child to go abroad, and the State Border Service will not release a child from Ukraine. This is not true. According to clause 5 of the “Procedure for providing the State Border Service and its execution of mandates of authorized state bodies regarding persons crossing the state border of Ukraine”, authorized state bodies may issue mandates regarding:

  • banning the departure from Ukraine of persons whose right to leave Ukraine has been temporarily restricted by the decision of the investigating judge, including those to whom a preventive measure has been applied, provided for by the Criminal Procedure Code of Ukraine, under the terms of which such a restriction is provided;
  • search at checkpoints across the state border of persons declared wanted in accordance with the Criminal Procedure Code of Ukraine.

Thus, either these documents or the court’s decision to prohibit the child from leaving Ukraine are the only documents that can create an obstacle and prohibit the child from leaving the country. At the same time, when applying to the court, it is necessary to prove the existing risk of a real threat of illegal removal of the child. At the same time, the risk of abduction (illegal transfer) of a child must be proven by proper and admissible evidence, since the very fact of a child crossing the border without the consent of one of the parents does not entail an unconditional violation of parental rights and the rights of the child.

So, we considered only some issues related to the departure of a child abroad. In practice, they are much more. We would like to emphasize the main thing – ask! In every unclear situation, it is better to clarify. Useful contact numbers are available on the official website of the State Border Service of Ukraine:

1598 – multi-channel number (for free calls from the fixed line network and subscribers of mobile operators in the territory of Ukraine).

+38 (044) 527-63-63 – city number (for calls from Ukraine and from abroad according to the tariffs of the relevant operator).

dovira@dpsu.gov.ua – e-mail address of the “Dovira” service of the State Border Service of Ukraine.

 

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