The third year of hostilities in Ukraine forced the state authorities to reconsider mobilization issues and issues that directly concern military personnel, their rights and responsibilities, and also affect family members. These are completely logical actions, given that Ukraine has had no experience of military operations until now. Laws and by-laws were written in such a way that they were calculated more for peacetime, and not for the conduct of hostilities, especially in the long term. Life goes on and sometimes situations occur that cannot be predicted, but already taking into account experience, legislators try to do it. At the same time, the norms of the current legislation widely apply to both women and men, taking into account the current situation.
It is no secret that children are the ones who suffer the most from the war in the country. One of such novelties in defense of their interests was the release of servicemen from duty due to a child’s illness. Lawyers of the “Repeshko and Partners” Bar Association comment on how this happens.
On May 3, 2024, amendments to the Law of Ukraine “On Social and Legal Protection of Servicemen and Members of Their Families”, adopted by the Verkhovna Rada of Ukraine on March 21, 2024, entered into force. In it, paragraph 5 of Article 11 “The right of servicemen to health care, medical care and biological parenthood (maternity)” was supplemented with a new paragraph and currently has the following form:
“Female servicemen enjoy all the benefits provided by the legislation on women’s social protection, maternity and childhood protection. These benefits apply to parents of servicemen who are raising children without a mother (in the event of her death, deprivation of parental rights, while staying in medical healthcare facilities and in other cases of lack of maternal care for children).
In order to care for a sick child under the age of 14, the servicemen specified in the first paragraph of this clause shall be released from duty for the period during which the child needs care according to a medical opinion on temporary incapacity, but for no more than 14 calendar days. In the case of the need to care for a sick child under the age of 14 who needs inpatient treatment, the servicemen specified in the first paragraph of this clause shall be released from official duties while maintaining financial support for the entire period of care for the sick child.
Therefore, military personnel received the right to a kind of additional “leave”, which, according to the text of the law, sounds like “exemption from official duties”. However, it should be noted that such a release is not a vacation and is not considered as such according to current regulations. The term “release” is used.
Which of the military personnel has the right to be released from duty to care for a sick child?
- Female military personnel;
- Male servicemen who raise children without a mother, namely in the case of:
– the mother is dead (it is necessary to have a death certificate of the child’s mother, a court decision to recognize the child’s mother as dead, or a court decision to establish the fact of the child’s mother’s death);
– the mother is deprived of parental rights (a court decision is required to deprive the mother of parental rights);
– the mother is in a medical institution (it is necessary to have a duly certified medical certificate stating that the child’s mother is undergoing inpatient treatment in a health care institution with an indication of the diagnosis);
– other cases of deprivation of maternal care of children (the mother was declared missing by a court decision, the child was taken from the mother without deprivation of parental rights based on the court decision, and others. The law took care that in the event of any non-standard situation, it will be possible to apply this very point ).
To which of the military personnel does this rule apply?
- to servicemen of the Armed Forces of Ukraine, other military formations and law enforcement bodies of special purpose established in accordance with the laws of Ukraine, state bodies of special purpose with law enforcement functions, the Foreign Intelligence Service of Ukraine, the intelligence body of the Ministry of Defense of Ukraine, the State Service for Special Communications and Information Protection of Ukraine, who perform military service on the territory of Ukraine, and military personnel of the above-mentioned military formations and law enforcement agencies – citizens of Ukraine who perform military duty outside Ukraine;
- on conscripts and reservists called up for training (or inspection) and special meetings, and their family members;
- on members of voluntary formations of territorial communities during their participation in training activities of voluntary formations of territorial communities, as well as their performance of the tasks of the territorial defense of Ukraine.
We draw your attention to the age limit – the child must not be more than 14 years old.
Regarding family ties with the child, the following are entitled to temporary release:
- the child’s biological parents, i.e. the military serviceman is recorded in the child’s birth certificate as the mother/father;
- the child’s adopter, because after receiving the court’s decision on adoption, an entry about the adopter as the father/mother of the child is entered in the birth certificate;
Does the specified rule on exemption from official duties apply to guardians?
A legal analysis of the rule of law gives the answer that no. The article clearly states: “These benefits apply to parents of military personnel…”. That is, you need to be the child’s parents. The child’s parents are noted in the birth record, on the basis of which the child’s birth certificate is issued. The guardian is appointed by the decision of the court or guardianship authority. At the same time, there are no changes in the child’s birth certificate, even if the child legally has no parents and is an orphan.
The basis for such dismissal is a finding of temporary incapacity. It is on the basis of this that the serviceman receives sick leave, because the medical opinion of the “Care for a sick child” category is formed on the basis of the medical record of a patient under the age of 14 and the opinion of the attending physician about the temporary incapacity of the person who will care for the patient.
Also, in order to grant the specified exemption, the military serviceman must provide a properly executed medical document regarding the child’s health status, which confirms the need for inpatient treatment or that the child is already receiving inpatient treatment. These can be:
- certificate (conclusion) of a health care institution about the need for inpatient treatment of the child
- a certificate from a health care institution stating that the child is already receiving inpatient treatment
The law does not contain restrictions on the number of exemptions or the period of time during which it is possible to use such an exemption. The only limitation is no more than 14 calendar days.
Therefore, the release must be granted as many times as it will be required according to the documents that will be provided by the serviceman as justification.
If, after 14 calendar days have passed, the child, for example, is still undergoing inpatient treatment in a health care facility, then the serviceman must be granted another release based on the provided certificate of the child’s stay in the hospital and continued treatment. At the same time, military personnel are provided with financial support.
What exactly must be done to obtain a temporary exemption?
A military serviceman must submit a report to receive exemption from duty. It must be submitted with the addition of original documents that are its basis. That is, together with the report, the military serviceman must, for example, provide the original medical opinion that the child needs inpatient treatment, and if it is a male military serviceman, the death certificate of the child’s mother and the child’s birth certificate. Of course, it is better to submit the last two documents in notarized copies and never give the originals to anyone. We recommend in advance, just in case, to make a significant number of notarized copies of such documents just in case.
Please note that release from duty to care for a sick child is an obligation of the unit’s command, not a right. Therefore, if five such exemptions are required in a year, the command must provide all five with proper documentary confirmation of such necessity.
