Annotation: Clearly where the expeditious return mechanism of the 1980 Hague Child Abduction Convention is not well-applied problematic situations can arise as is, inter alia, reflected in the case law of the European Court of Human Rights
The Hague Convention on the Civil Aspects of International Child Abduction in 1980 (hereinafter referred to as the Hague Convention) was adopted on October 24, 1980 by the 14th session of the Hague Conference on Private International Law. In 1982, an explanatory report was prepared by Eliza Perez-Vera (hereinafter referred to as the explanatory report)  The Russian Federation accessed to the Hague Convention on the basis of the Federal Law of May 31, 2011 No. 102-ФЗ “On the accession of the Russian Federation to the Hague Convention on Civil Law Aspects of International Child Abduction 1980”. The Convention entered into force for Russia on October 1, 2011 . For the list of countries which has accepted the accession of Russia visit the hcch website.
I Objectives and structure of the Convention: The Convention consists of 45 articles divided into six chapters. Chapter I defines the scope of the Convention, Chapter II establishes a system of cooperation between the Central Authorities of the Contracting States. Chapter III defines the procedure for obtaining a return order. Chapter IV is devoted to the observance of the right to intercourse and consists of one article (Article 21). Chapter V contains general provisions, and Chapter VI contains standard final clauses.
The convention is focused on the achievement of several goals, which are referred to in Art. one:
a) ensure the immediate return of children illegally displaced or held illegally in another contracting State;
b) guarantee the observance of custody rights and the right to communicate.
However, in order to clarify these goals, we must refer to the Preamble of the Convention. The Preamble states that “the interests of children are of paramount importance as regards custody of them.” More in the text, the term “interests of children” does not occur, but it is extremely important for a correct understanding and interpretation of the Convention. Since the illegal transfer or retention of a child entails negative consequences for his upbringing and development, it means that an illegal transfer or retention does not meet the interests of the child. In order to counteract such actions, the Convention establishes a procedure for the immediate return of the child to the state of his usual place of residence (preamble), setting some exceptions to the principle of immediate return (Art. 12 (2), Art. 13, Art. 20). Immediate decision-making (within six weeks from the time of appeal) (Art. 11) and the duties of the Central Authorities also serve to protect the interests of the child.
The Convention is also focused on ensuring the right to communicate (preamble). In the French text of the Convention, the term droit de visite (the right to communicate) is used, in the text of the Convention in English, the term access right, but as noted in the report on the general principles and practice of the application of the Convention, the terms access rights and contact right are synonymous for Convention , therefore, this article refers to the right to communicate, and not the right of access. It seems that such a translation not only better matches the terminology used in the Family Code, but also reflects the modern understanding of the child as a subject, rather than an object of law. .
At the same time, the Convention contributes to the formation of the desired model of parental behavior, and is of a preventive nature.
Scope of the Convention Scope of application ratione personae – The Convention applies to any child under the age of 16 who has had a permanent residence in a contracting state immediately before the violation of custody or access (art. 4). Thus, the citizenship of neither the parents nor the child is irrelevant for the application of the Convention. At the same time, the Convention does not contain the definition of the term “country of permanent residence of the child”, neither does the Hague Convention on Intergovernmental Adoption of 1993. Meanwhile, the concept of “country of permanent residence of the child” is key to the entire Convention. It is according to the law of the country of the child’s domicile whether the person or the institution had custody of the child (art. 3), and the court of the country of the child’s domicile will be competent to decide on the matter of custody (art. 16).
Scope of application ratione materiae The removal or the retention of a child is to be considered wrongful where –a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
As it follows from the legal provision, the wrongful character of removal/retention is to be understood from legal and factual points.
Judicial practice: In one case, the Tsentralniy court of Novosibirsk came to the conclusion that the father of children, entrusted with rights of custody under French law, was not actually exercising his rights of custody because of his deafness.
It is to be noted that removal and retention are two distinct notions for the purpose of the Hague Convention, moreover, they are mutually exclusive – an abducting parent either removes or retains a child.
The rights of custody The term ‘rights of custody’ is translated into Russian as “opieka” («opieka» in Polish, «péče» in Czech). Historically, the term “opieka” has been used in Russian law to designate the relationship arising between an adult person taking care of a minor. The Convention does not define the term ‘custody’ stating in art.5 that for the purposes of this Convention –
a) “rights of custody” shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence;
It follows from that definition that:
- the rights of custody are complex in their nature, one of constituent elements is ‘care of the person of the child’ which also seems to be a core right of custody;
- the right to determine the child’s place of residence is part of right relating to the care of the person of the child;
- the right to determine the child’s place of residence is a key element of the custody rights for the purpose of the Hague Convention 1980.
The rights of custody, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.
The alternate custody where a child resides with one of his/her parents is out of scope of the Hague Convention 1980, as in this cqse both parents are entrusted with the right to determine the child’s place of residence. When the 1980 Hague Convention was envisaged, such situations were very rare, but now they are becoming more and more often. Still one of prerequisites of an alternate custody is friendly and respectful relations between parents of a child which are conspicuously absent in child abducting cases.
Habitual residence of a child The notion of habitual residence is an important one in Private international law and procedure law. The Russian legislation does not know this exact term, instead two terms – of the place of living and the place of residence are used in civil law and migration law. The chapter VII of the Family Code dealing with the private international law, refers to a permanent place of residence of a person.
The summary return mechanism is laid down in art. 12: Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.
It is a narrow exception that allows the court to take into account the best interests of the child by ascertaining whether he is “now settled in a new environment.” But the Russian judicial practice adheres to much wider interpretation of the exception. The case-law of Tverskoy court of Moscow makes clear that a child may be presumed to be settled in a new environment even if a period less than one year has elapsed since abduction.
Art.13 Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –
a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention;or
b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The grave risk (or intolerable situation) exception has been given very broad interpretation in Russian judicial practice. F.ex., the Dzerjinskiy court of St-Petersburg in a case №2-3602/16 dated the 27th October 2016 had to deal with the question of return of a 3 years old girl to her British father in Spain. The judge referring to art. 13 (1)(b) of the Hague Convention and the principle 6 of the Declaration of the Rights of the Child 1959 which provides that “the child, for the full and harmonious development of his personality, needs love and understanding…. a child of tender years shall not, save in exceptional circumstances, be separated from his mother”, concluded that the child was in constant need of her mother’s care and that separation with the mother would amount to an “intolerable situation” thus dismissing the applicant’s claim. The St Petersburg City Court on the 21st of December 2016 upheld the above decision on appeal. The applicant complained to the European Court of Human Rights appl.№36048/17 (Thompson against Russia) communicated the 23d of October 2017.
On 25 March 2016 the Tverskoy court of Moscow heard the case №2-1446/2016 about return of a two-year old child to his father in Spain. The court held that return of the child to Spain would separate him from his mother and, having taken into account the age of the child and his attachment to his mother such separation would place him into an intolerable situation according to art. 13 (1) (b) of the 1980 Hague Convention.
On 24 April 2017 the same court heard the case №02-3328/2017 about return of a 4-years old boy to his father in Israel. The mother of a child alleged that a bad health condition of a minor posed a serious threat of harm to him. The medical documents confirmed that a child had delayed speech development, emotional and behavioral difficulties, hyperactivity. The court held that “having taken into account that the child is a Russian citizen, that he is provided with all the conditions for his development and education, that he is undergoing a medical treatment in Moscow, referring to art.13 (1) (b) of the Hague Convention 1980, invoking medical expertise, the return of the child to his father in Israel is to be denied”. The applicant complained to the European Court of Human Rights appl. №34176/18 E.D. v. Russia, communicated on the 22 October 2018.
The typical situation when the exception under art. 13 (1) (b) comes into play is domestic violence (https://assets.hcch.net/docs/582a0181-c82c-4398-988d-4e7bf469f9de.pdf).
In contrast with the judgments referred to above, one may bring as an example of a “righteous «application of the art.13 (1)(b) exception the judgment of the Tsentralniy court of Khabarovsk (Far East of Russia) in case No-5968/2016 dated the 16th August 2016 which concerned return of a 10 years-old girl to her father in Donetsk – the self-proclaimed so-called “Donetsk People’s Republic” (“the DPR”) in Ukraine. Assessing the defendant mother’s arguments that “return of a child to her father in Ukraine will amount to a grave risk of physical or psychological harm or otherwise place her in an intolerable situation, due to military actions taking place in Donetsk” the court noted that “military actions periodically taking place in different parts of Ukraine per se do not amount to an exception provided by art. 13 (1) (b). Besides, despite the fact that military actions started in April 2014, the defendant removed the child from Ukraine only in January 2016. Thus the court held that the child had been wrongfully retained in Russia and ordered her return to her father in Ukraine during 24 hours. The defendant complained to the ECHR appl. №17665/17 (Y.S. and O.S. v. Russia), communicated on 19 June 2017 }).
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
As an example one may again refer to the above-mention judgment in which the court noticed that the argument of the defendant that the child did not want to return to her father in Ukraine, were not to be taken into account as the objection came from the child’s wish “to stay with her mum, that she had a lot of friends and that her father was often scolding her”.
The procedural questions: Due to complexity and specific character of cases under the 1980 Hague Convention, the Russian legislator applied the principle of concentration of cases and introduced the so called “centralized jurisdiction” for the first time. Thus according to art. of the Russian Civil Procedure Code, there are 8 courts competent to hear abduction cases. For comparison, there are 22 courts in Germany, 27 courts in Ukraine, there is one court in the Czech Republic, in Hungary, in Sweden which are competent to hear the return/access cases.
The right to bring a return/access claim pertains to a parent (or his legal representative who in Russia is not necessarily a lawyer) and to a prosecutor. It is to be noted that due to the lack of relevant provisions in the Public Prosecution Act, this provision remains “dormant”. Support by the Prosecutor’s Office of one of the parties may undoubtedly be justified in certain circumstances, enumerated in the Public Prosecution Act – for example the protection of rights of vulnerable groups – children, disabled people and so on, or where numerous citizens are affected by the wrongdoing concerned, or where State interests need to be protected.
According to art. 29 of the 1980 Hague Convention, any person, institution or body can apply directly to the judicial or administrative authorities of a Contracting State, whether or not under the provisions of this Convention. In practice it occurs when a parent speaks Russian and can hire a lawyer himself. The return/access proceedings are exempt from court fee.
Art. 244.15 provides that proceedings under the 1980 Hague Convention shall not exceed 42 days. A single judge states on the merits of a case. It is an adversarial proceedings. Art. 144 .16 provides that a return judgment must explain the manner securing return of a child, indicate who is charged with the costs of return. The judgments usually very scarcely formulate like “the defendant is ordered to hand the minor and his/her birth certificate over to the plaintiff”. Enforcement of a judgment will be exercised by bailiffs acting in the framework of special legislation.
In this regard the experience of other States appears to be very useful. F.ex., due to modification to the Civil Procedure Code of the Czech Republic there appeared a possibility to set up in a return judgment a detailed schedule allowing a child to get used to the left-behind parent through meetings supervised by a child protection authority or a mediation service (plán navykacího režimu, § 272, 273).
Procedural time-limit for an appeal is 10 days, an appellate proceeding can not exceed one month (art. 244.17).
Art. 244. 15 provides for an obligatory participation of a child protection authority and a prosecution office at a court hearing. It is to be noted that in three competent courts (Tverskoy court, Dzerjinskiy court and Tsentralniy court of Novosibirsk) the prosecution office has not supported return claims and, moreover, in cases where court ordered return, it was the prosecution office which had lodged appeals in exercise of its supervisory power(decision on appeal of the St-Petersbourg city court case №2-343/17 about return of a child to Germany, decision on appeal of the Novosibirsk regional court case №2-4896/2017 about return of 2 children to New Zealand).
Implementing art. 16 and 19 of the 1980 Hague Convention, para.7 art. 215 of the Civil Procedure Code provides for a motion to a court hearing a custody dispute from a court adjudicated the abduction case. According to art. 169 a court must postpone for 30 days the proceedings of a custody dispute if the Russian Central Authority notifies about receipt of a return/access application. It should be born in mind that the Russian Central Authority is able to notify a relevant court only inasmuch as it knows which particular court is adjudicating a custody dispute.
Conclusion: having seen 5 years since the Hague Convention implementation Act in Russia, taking into account an emerging national case-law and ECHR case-law (6 applications lodged, one judgment delivered in Ushakov v. Russia) one may draw the following conclusions:
1) The Supreme Court of the Russian Federation is more than welcome to adopt the Practice Guide of the 1980 and 1996 Hague Conventions application in Russia;
2) The Supreme Court is to assign one of the judges as a liaison – judge with the International Network of Judges. Participation of a Russian judge will eventually facilitate a holistic application of the 1980 Hague Convention, allowing in particular “mirror” orders to be taken, until now unknown to the Russian judicial system;
3) The principle of concentration should be interpreted as applying to all authorities concerned (child protection authorities, enforceJment agents). It will facilitate setting aside stereotypes relating to family, which do not easily fit into the solution to international child abduction envisaged by the 1980 Hague Convention;
4) Public prosecution office should become involved as a principal stake-holder with a more 1980 Convention-center approach.
© 2019 Daria Borminskaya
“Explanatory Report of the Convention on the Civil Aspects of International Child Abduction”, E. Pérez-Vera, http://www.hcch.net/e/conventions/expl28e.html>
 W. Duncan, Transfrontier access/contact – General principles and practice, Prel. Doc. 4, October 2006. С. 9.