Mandatory evacuation of children: what the Cabinet of Ministers forgot about

The forced evacuation of children by the decision of administrations from settlements located in the territories of active and possible military (combat) operations is complicated by the negative attitude of parents.

To address this problem, the Cabinet of Ministers of Ukraine submitted to the Verkhovna Rada a draft law No. 12353 of 23.12.2024 «On Amendments to Certain Legislative Acts of Ukraine on the Settlement of the Issue of Mandatory Evacuation».

The Government notes that there is a need to clarify the tasks and specify the powers of public authorities in carrying out measures to evacuate children under martial law. Also, the implementation of martial law measures has highlighted a legal gap in the legislation regarding the prohibition or restriction of entry (entry) and stay of the population in settlements from which mandatory evacuation is carried out under martial law.

It is proposed that mandatory evacuation can be both general and partial for certain categories of the population and other categories of the population by decision of state (military) administrations.

The Committee of the Ukrainian National Bar Association on Human Rights Protection, which analyzed the draft, noted that the concept of partial evacuation is not new and is mentioned in the current Article 33 of the Civil Protection Code as a type of evacuation carried out to remove categories of the population who, due to age or health condition, are unable to take measures to preserve their lives or health on their own in the event of an emergency, as well as persons who, in accordance with the law, care for (serve) such persons. Partial evacuation may also be carried out for other categories of the population by decision of the bodies and officials specified in part three of the said article.

But, according to lawyers, the use of this type of (partial) evacuation in the context of compulsory evacuation of children under compulsory order may lead to the threat of local implementation of these measures in relation to children, when a particular body is sometimes vested with excessive powers under martial law and lack of time, for example, mistakenly decides to partially compulsorily evacuate children immediately under compulsory order. This will have critical consequences in the context of limited access to justice and legal aid in the evacuation area (zone).

The draft law does not contain criteria and deadlines for the early introduction of mandatory evacuation in the area of possible hostilities, which creates uncertainty in this regard and opens the way for possible abuse in its application.

Regarding the mandatory evacuation of children, on the one hand, amendments are proposed to Article 33 of the Civil Protection Code and Article 15 of the Law «On the Legal Regime of Martial Law», and on the other hand, amendments to Article 170 of the Family Code and amendments to Article 14 of the Law «On Child Protection».

In the first case, it is stated that the mandatory evacuation of the population is carried out from settlements located both in the territories of active and possible hostilities, which are included in the relevant list. In the second case, one of the parents or other legal representatives is obliged to personally ensure the escort of children to safe areas if the authorized body decides to conduct a mandatory evacuation of children from settlements located in the territories of active military (combat) operations during martial law.

This creates a gap whereby a child is accompanied by parents (persons in loco parentis) or other legal representatives in the event of a mandatory evacuation of children from the territory of active hostilities.  This is not provided for in the case of such evacuation from areas where hostilities are possible.

At the same time, the first case states that compulsory evacuation of children is carried out by guardianship and custody authorities with the involvement of the National Police to ensure the protection of public safety and order, and from the territory of active hostilities - only by police officers authorized by the decision of the head of the relevant body or unit of the National Police, without the accompaniment of parents (persons in loco parentis) or other legal representatives. The presence of parents (persons in loco parentis) or other legal representatives is not required in any of these cases.

In the case of mandatory evacuation of children from the territory of active hostilities, it is envisaged that children in safe areas will be transferred exclusively to guardianship and custody authorities, and no further transfer of children from the territory of possible hostilities is envisaged.

Therefore, the draft law does not provide for the transfer of children to parents or relatives after evacuation from the territory of hostilities and does not establish a mechanism for returning children to their families.

The UNBA Committee is convinced that the forced evacuation of children can cause a negative reaction from parents or guardians, especially in the absence of proper legal control or due to a lack of trust in the authorities. In addition, if the evacuation of children is not organized properly, it may result in violations of the child's rights to mental and emotional well-being. And the lack of proper control and insufficient legal regulation of evacuation may lead to violations of the child's rights to safety and protection. Inadequate regulation of the process of forced evacuation can lead to legal errors and legal consequences that will call into question the legality of such actions.

The full list of comments and suggestions to the draft law No. 12353 can be found here.