Presidium of the Supreme Court of the Russian Federation December 18, 2019
Overview of child return cases under the 1980 Hague Child Abduction Convention (translated from Russian)
Entering into Force, Convention Objectives
The 1980 Convention on the Civil Aspects of International Child Abduction, which entered into force in the Russian Federation on the first of October 2011 (hereinafter – Convention 1980, Convention) aims to protect children from the harmful effects of cross-border abductions (and wrongful retentions) by providing a procedure designed to bring about the prompt return of such children to the state of their habitual residence. The Convention also aims to protect access rights.
One of the objectives of the Convention is to secure the prompt return of children wrongfully removed to, or retained in, any Contracting State (paragraph “a” of Article 1). Moreover, in accordance with Article 4 of the 1980 Hague Convention, it shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The 1980 Hague Convention shall cease to apply when the child attains the age of 16 years.
The Federal Law of the 5th of May 2014 No. 126-ФЗ “On Modification of Certain Acts of the Russian Federation in Connection with the Accession of the Russian Federation to the Convention on Civil Aspects of International Child Abduction” the Russian Code of Civil Procedure was supplemented by Chapter 22.2 “Proceedings for Applications for Return of the Child or Exercise of Access Rights in Respect of the Child on the Basis of an International Treaty of the Russian Federation”.
In accordance with Part 2 of Article 244.11 of the Code of Civil Procedure, exclusive territorial jurisdiction was introduced with respect to return cases of children illegally removed to or retained in Russia. Such cases are under the jurisdiction of one of the eight courts of first instance: Tverskoy court of Moscow, Dzerzhinsky Court of St. Petersburg, Pervomaisky Court of the town of Rostov-na-Donu, Pyatigorsk Town Court of the Stavropol region, Kanavinsky Court of Nizhny Novgorod, Zheleznodorozhny Court of Yekaterinburg, the Central Court of Novosibirsk, and the Central Court of Khabarovsk.
Statistics
In the period from 2016 to 2018, 71 return cases were heard overall:
- 13 cases in 2016,
- 26 cases in 2017,
- and 32 cases in 2018.
In 23 cases, the applicants’ claim for return of the child was satisfied; and in 48 cases, the applicants’ claim for return of the child was refused. Out of 71 cases, 48 judgments were appealed, and out of 48 appealed judgments, 37 judgments remained unchanged, and eight judgments were overturned resulting in new judgments refusing the return of the child, one judgment was overturned resulting in a new judgment satisfying the return of the child, and two appeals were dismissed.
Applicable Legal Acts
In considering return cases courts are guided by the Russian Constitution, the 1980 Hague Abduction Convention and other international treaties, the Russian Civil Procedure Code, and the Directions of the Russian Supreme Court dated the 10th of October 2013 No. 5 “About Application by Courts of Generally Recognized Principles and Norms of International Law and International Treaties of the Russian Federation”. In addition, the courts also considered documents drafted by the Hague Conference on International Private Law.
In accordance with Article 244.11 of the Code of Civil Procedure, persons with a legitimate interest to lodge a return claim are a parent or another person who deems his/her custody rights are in breach, and a prosecutor.
As judicial practice shows, in all cases heard in 2016–2018, the applicant was one of the parents of the child. In almost all cases, the claim was brought against the other parent and in only one case it was brought against the grandmother of the child.
Where it was necessary, if parties were unable to come to court as a result of living far from court, video conferencing was in use, according to Article 155.1 of the Code of Civil Procedure.
THe term for hearing of return cases
The term is 42 days from the date of filing a return claim (Article 244.15 of the Code of Civil Procedure).
In certain cases, the term for proceedings was exceeded due to different reasons, such as:
– taking of additional evidence;
– engagement of a plaintiff’s lawyer in another proceeding;
– the need to inspect the documents presented by the defendant;
– the wish of a claimant to personally participate in court hearings and the necessity to obtain a Russian visa.
Spain, Ukraine, Israel, France, and Germany were most often the countries of habitual residence of a child before his/her removal to Russia.
Circumstances Significant for the Merits of the Dispute
In resolving the merits of the dispute, the courts considered the provisions of Article 3 and, while doing so, examined legally significant circumstances, such as:
– whether the claimant has custody rights in accordance with the legislation of the state in which the child resided permanently prior to his removal/retention, and whether those rights were actually exercised;
-whether the state where the child resided before his removal to Russia is the state of his/her habitual residence;
– whether the other parent consented to the moving of the child to Russia, and if the consent was given, for what period of time it was given.
For example, while considering a claim brought by the French citizen D for the return of a child, it was found out that the State of habitual residence of the child was Switzerland. At the time when the defendant moved from Switzerland to Russia with the child, a Swiss court decision existed depriving the applicant of his parental rights. So, the court concluded that the defendant was entrusted with sole custody of the child, and was entitled to determine the child’s place of residence without consulting the father, and therefore refused the claim. This judgment was upheld in appeal. The Russian Supreme Court denied the cassation appeal.
The Notion of the Habitual Residence
Regarding the notion of the habitual residence, which is indispensable for 1980 Convention cases, one must keep in mind the Explanatory Report drafted by Elisa Perez-Vera and published by the Hague Conference on Private International Law (HCCH) in 1982. According to this report, the notion of habitual residence is a matter of fact. That’s why in every case the courts examine various circumstances,such as duration, frequency, conditions of stay of the child in the territory of a given state, place and conditions for visiting a preschool or a school, family and social connections of the child in this state, citizenship of the child and his/her linguistic knowledge, why his/her parents lived in this state, and their intention to further reside in this state, confirmed, f.ex., by an employment contract, housing agreement, and citizenship of the country of residence, etc.
For example, in one case (B against K) concerning the return of a child to France as the state of the child’s habitual residence, it was established by the court that the child’s residence in France was of a temporary nature. Thus, the mother of the child (the defendant in the case) arrived in France before her childbirth in order to take advantage of childbirth care in France, not because the parties intended to reside permanently with the child in France. The parties were not married; the defendant entered France on the 14th of October 2014 with a Schengen visa obtained at the Embassy of Finland, which would expire on the 4th of January 2015. The defendant was permanently residing in Russia where she bought a flat and was studying at a higher educational institution. The defendant also referred to the fact that the child did not acquire French citizenship and that the child was not attached to any medical institution in France. These arguments were not challenged by the applicant; neither had he presented any evidence confirming that he was willing to legalize the stay of the defendant in France. In such circumstances, the court concluded that there were no grounds for considering that France was the state of habitual residence of the child and therefore the applicant’s request for the return of the child was denied.
In another case, the applicant D, referring to the fact that the defendant C illegally removed the child to Russia from Romania, which was the state of habitual residence of the child, requested the return of the child to Romania.
Hence the court found that the state of habitual residence of the child was Romania and the child was illegally removed to Russia. The applicant was a Romanian citizen and the defendant was an Italian citizen. They were not married, and had a child who was born in Romania, and had Romanian and Italian citizenship. The child from the very moment of birth had been living with his mother in Romania.
In September 2013, the applicant and the child, who was one year old, arrived in Russia where the defendant was assigned as an employee. In February 2015, the applicant returned to Romania with the child. The defendant lodged an application with a Romanian court seeking the return of the child to Russia. The Romanian courts denied the application stating that Romania was the state of habitual residence of the child. However, the defendant took the child to Russia. The judgment of the Romanian court was used by the Russian court [Tverskoy Court in Moscow] as the basis for its conclusion that Romania, not Russia, was the state of habitual residence of the child. In addition, the Russian court also took into account that the defendant himself was residing in Russia temporarily; neither the defendant nor the child had documents confirming their right to a permanent stay in Russia. The Court of Appeal agreed and further clarified that the defendant’s argument that Russia had become the child’s state of habitual residence due to his stay of one year in Russia since November 2016, was based on a misinterpretation of the 1980 Hague Convention.
Another case concerned the return of a child to Kazakhstan. The defendant (father of the child) argued that Russia was the state of habitual residence of the child, as the child had Kazakh and Russian citizenship and had been living in Russia for about a year. The court disagreed, however, and concluded that since the child was born in Kazakhstan and had been living there for five years with his mother and siblings, attended kindergarten, was ready to be enrolled in school, and was attached to a medical institution, Kazakhstan was the state of his habitual residence. From the date of his removal to Russia until the date when his mother applied to court less than one year had passed, therefore the court ordered the return of the child. The Court of Appeal upheld the judgment.
Erroneous Reasoning as to the Issue of the Habitual Residence
An analysis of judicial practice suggests that, usually, the issue of whether the state from which the child was removed was the state of its habitual residence is the object of a thorough examination. However, there have been cases when the Court of Appeal has disagreed with the reasoning of the Court of First Instance in this regard.
Thus, in the case E against A concerning the return of a child to Ukraine, the court concluded that the applicant (mother of the child) had not proven that Ukraine was the state of habitual residence of the child and denied her claim. The Court of Appeal disagreed stating that the following circumstances must be taken into account in considering whether the state in question was the state of habitual residence of the child:
duration, frequency, conditions, and reasons for the stay of the child in a particular country;
the reasons why the child’s family moved to this country;
school attendance and the child’s social connections;
and the intention of parents to live in one or another country.
The Court of Appeal also stated that in this case the applicant and her daughter were permanently registered in Ukraine, the child attended kindergarten and was attached to a medical institution. The defendant was also permanently registered in Ukraine, and his and the applicants’ relatives also lived in Ukraine. The panel of judges also considered the fact that the court of Ukraine had dissolved the marriage between the parties, and the child’s place of residence was determined to be with her mother. The Court of Appeal quashed the Court of First instance’s judgement and rendered a new judgment, ordering the child’s return to her mother in Ukraine.
Settlement in Russia
Judicial practice reveals that defendants more often than not argued that the child has settled in Russia (Article 12 of the Hague Convention).
In this regard two conditions are necessary:
- a period of more than one year has elapsed from the date of the wrongful removal or retention of the child and the date of the commencement of the proceedings;
- it has been established that the child has really settled in the new environment, with the burden of proof on the defendant.
So, in the case Ch against A concerning the return of a child to Kazakhstan it was found that the parents of the child were not married. The child was born in Kazakhstan, where he lived with his mother, Ch, for six years. While on a short trip to Russia for the purpose of meeting with paternal relatives, the defendant (the father of the child) took the child away. During the proceedings [in the Pyatigorsk Town Court of the Stavropol region] the defendant argued that the child had settled in Russia. The court established that less than a year had elapsed since the date of the wrongful removal and the commencement of return proceedings, and therefore, the question of the adaptation of the child was not of relevance to the court. The court found in favour of the applicant and ordered the return of the child. The Court of Appeal upheld the judgment.
Calculation of the One-Year Period
When calculating the one-year period, it is the date of illegal removal or retention of the child that matters. The situation when the child was legally moved to Russia, but not returned after the term of parental consent, is understood as retention of a child.
The date of filing of the claim for the return of the child with the court determines the date of commencement of the return proceedings.
Regarding the settlement of a child in a new environment, courts take into account the child’s overall period of stay in Russia by the time of the court proceedings, the child’s scholar and intra scholar activity, his social connections (friends, relatives), command of the Russian language, housing and living conditions, as well as other circumstances.
Thus, in considering the case of S against A regarding the return of a child to Israel, it was found that the applicant requested the return of the child to Israel more than two years after the defendant had moved to Russia with the child, despite the defendant’s location with his daughter being well known to the applicant. The girl resided with her mother and maternal grandparents in a house owned by her grandparents, the girl attended a preschool and did not speak anything but Russian. Thus, the court concluded that the girl was fully settled in Russia, and denied the applicant’s claim.
Circumstances under Article 13 (b) of the 1980 Convention.
In the case S against K, concerning the return of children to Belgium, the applicant – the father of children – applied to the court in Belgium, which ordered the separation of the spouses, rendered an injunction prohibiting the mother of the children to enter the house where the father resided, and entrusted the father with the sole custody of the children. The applicant also lodged a criminal complaint to the police for child abduction. According to the explanations presented by a Belgium lawyer, the Royal Prosecutor of Belgium could order the arrest of the defendant.
The court concluded that, in the case of finding in favour of the applicant, it is quite possible that the defendant would not be able to return to Belgium in view of the threat of her criminal prosecution. In addition, the defendant, in fact, had been deprived of parental rights, she had no right to be in the house in which the applicant resided with the children. Meanwhile, as was established during the proceedings, both children were emotionally attached to their mother, separation from her might bring about serious psychological harm, which was confirmed by the testimony of a forensic psychologist. The youngest child did not remember living in Belgium at all and he did not speak any language except Russian. The court also found that the applicant behaved inappropriately towards the children, the oldest child stuttered as a result of nervous shock. While living in Russia, the child had psychotherapy sessions, and as a result, he became calmer and stopped stuttering. Having regard to the above circumstances, the court concluded that there was a grave risk that their return would expose the children to physical or psychological harm or otherwise place them in an intolerable situation and denied the claim. The Court of Appeal upheld the judgment.
Article 13 of the 1980 Convention and the age of a child.
The minimum age obliging the court to consider the child’s opinion while deciding on the possibility of returning the child to the country of his/her habitual residence is not set out in the 1980 Hague Convention. So the courts are guided by Article 12 of the Convention on the Rights of the Child, as well as Article 57 of the Russian Family Code. According to the latter, “a child has the right to express his/her opinion when any issue in the family affecting his interests, is being discussed, as well as the right to be heard during any judicial or administrative proceedings. Starting from the age of 10 years old, consideration of the opinion of a child is obligatory, unless this is contrary to his/her interests”.
The opinion of a child on the issue of his/her possible return to the state of his/her habitual residence may be established:
- by the Office of Protection of Children in the course of drafting a report on the living conditions of a child;
- by the court during the hearing.
So, children who have reached the age of 10 years and in some cases also children of an earlier age (starting from five years old) have been heard directly during the court proceedings.
Opinion of Children
For example, in one case concerning the return of children to Spain, two minors (9 and 14 years old) were heard. The court considered the opinion of both of the children. Thus, the oldest child categorically refused to return to Spain and told the court that if she was returned to Spain, she would run away. The younger child also objected to returning to Spain, saying that she was feeling comfortable in Russia, that she had many friends, and she would like to stay in Russia and to visit her dad in Spain on vacation. The court also noted that the younger sister was emotionally attached to her older sister, and so separation from her might cause psychological harm and, therefore, her return to Spain without her older sister would be unacceptable. Therefore, the request for return was denied.
Another case concerned the return of four children to Germany. The siblings were aged one year, 5 years, 7 years and 10 years old. The oldest child was heard in court. She objected to returning, saying that she liked living in Russia, she had many friends here, whilst in Germany she had no friends, the children talked to her only when there was nobody else to talk to and she was constantly being teased because she was Russian. The girl indicated that she wanted her dad to buy a house in Russia close by. Her opinion was not taken into account by the court, since, according to the court, the minor had not attained an age and degree of maturity at which it would be appropriate. The court ordered the return of the children to Germany. The Court of Appeal overturned the judgment and denied the claim, stating, that the opinion of the child of 10 years old had to be taken into account insofar as her objections were motivated and the child understood the situation. The judge of the Russian Supreme Court denied the appeal for cassation.
In another case, on the contrary, the Court of Appeal upheld the judgment of the Court of First Instance, ordering the return of two minor brothers to Estonia.
The illegal character of the removal of the children was established during the hearing, and the defendant referred to the need to take into account the views of the older child who did not want to return to Estonia, as was revealed by the Office of Protection of Children. In considering the argument, the court concluded that the child was six years old and therefore had not attained a sufficient degree of maturity. The very wording of the child’s opinion, to which the court drew attention, was explicit: “Now he lives in a place where the sun is always shining, there is no gloomy weather, he does not want to return to the apartment where he lived with his mom”. Both courts ordered the return of children to Estonia.
Expertise
In some cases, in order to determine whether the child has attained an age and degree of maturity necessary for considering his/her opinion, the courts have appointed experts in psychology.
There are situations when applicants decided to waive the claim. In such situations, the proceedings were dismissed.
Evaluation of Evidence by the Court of Appeal
The examination of judicial practice indicates that in some cases the Court of Appeal disagrees with the findings of the Court of First Instance regarding their evaluation of evidence and acting according to Paragraph 1 of Article 327.1 of the Code of Civil Procedure, accepted the additional evidence and, having evaluated all of the evidence, overturned the judgements.
See, for example, the case of B (Polish citizen) against O regarding the return of a child to Poland. The Court of First Instance found in favour of the father and ordered the return of the child, stating the following points: the child was illegally removed to Russia in November 2017, Poland was the state of habitual residence of the child, less than a year had passed since the removal, and there were no obstacles to his return to Poland.
The Court of Appeal disagreed indicating that legally significant circumstances had not been duly assessed. Thus, the court did not properly consider that there was a judgment from the District Court in Poland, a translated copy of which was attached to the case file, which entrusted the child’s mother O with the exercise of parental rights, the place of residence of the minor was determined to be with his mother, and the father’s parental rights were limited. The [Russian] Court of Appeal accepted the new evidence – the judgement of the Court of Second Instance in Poland, which was rendered following B’s appeal against the judgement of the District Court in Poland. B’s appeal was dismissed by the Court of Second Instance in Poland.
So the [Russian] Court of Appeal, taking into account both judgements rendered in Poland, concluded that the movement of the child from Poland to Russia was not illegal since the mother of the child had left Poland because her residence permit had expired (that is, due to objective reasons), and the place of residence of the minor had been determined to be with his mother.
Overlapping Custody Case and Return Case
Article 19 of the 1980 Hague Convention laid down that a decision concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.
Evidence to be considered in a parent’s claim under Article 68 of the Russian Family Code seeking to return a child from a person illegally holding him and evidence to be considered in a parent’s claim under the 1980 Hague Convention are different. If the dispute is under Article 68, then the court is guided by the Directions of the Russian Supreme Court from May 27, 1998 No. 10 “ Disputes relating to the Upbringing of Children”). The Directions are not binding when the dispute is under the 1980 Hague Convention.
Interim Measures
Interim Measures – Article 244.13 of the Russian Code of Civil Procedure lays down that along with other measures provided by the Chapter 13 of this Code, a judge may prohibit a defendant from changing the place of residence of the child and temporarily restrict the child’s departure from Russia.
