On Russia’s accession to the Protection of Children Convention

17.02.2019

Annotation: The Protection of Children Convention sets international jurisdiction rules  for the recognition of the measures of   protection of the person and the property of the child. It seems that the provisions of chapter 45 of the Russian Civil Procedure Code  do not allow recognition of  measures of protection taken in the form of an administrative decision. The relevant Russian judicial practice  is given in this article.

Generalities: The Russian Federation has acceded to the Protection of Children Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children following the Act №62-ФЗ dated  05.06.2012. It came into force for Russia on the 1st  of June 2013.

The scope of the  Convention is stated in Art. 1-4. The term “parental responsibility” (see Art. 1(2)) includes parental authority, or any analogous relationship of authority determining the rights, powers, and responsibilities of parents, guardians or other legal representatives in relation to the person or the property of the child. The term parental responsibility is a relatively new term, it is used in various international instruments, including the revised Brussels II Regulation, and the Council of Europe Recommendation No R (84) 4 on “Parental Responsibilities”, and its White Paper on Principles Concerning the Establishment and Legal Consequences of Parentage (2002). The Recommendation defines that “parental responsibilities are a collection of duties and powers which aim at ensuring the moral and material welfare of the child, in particular by taking care of the person of the child, by maintaining personal relationships with him and by providing for his education, his maintenance, his legal representation and the administration of his property”. In Norway, the UK, Portugal, and the Czech Republic (rodičovská odpovědnost) expressly use the term in legal acts[1]. In other countries, the terms are somewhat different – in Germany ‘elterliche Sorge’,  in France ‘autorité parentale’, in Italy ‘potestà genitoriale’, in Bulgaria ‘родителска права’ (parental rights). The term ‘parental rights and obligations’ is used in Russian family law.

[1]  Lowe Nigel, A Report for the attention of the Committee of Experts on Family Law of the Council of Europe available at: cj-fa/cj-fa plenary meetings/38th plenary meeting/working documents/cj-fa(2008) 5e] Strasbourg, 21 September 2009. C.13-14.  

Art. 3 states that the protection measures  may deal in particular with:

a)the attribution, exercise, termination or restriction of parental responsibility, as well as its delegation; 
b)rights of custody, including rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence, as well as rights of access including the right to take a child for a limited period of time to a place other than the child’s habitual residence; 
c) guardianship, curatorship and analogous institutions; 
d) the designation and functions of any person or body having charge of the child’s person or property, representing or assisting the child; 
e) the placement of the child in a foster family or in institutional care, or the provision of care by kafala or an analogous institution; 
f)  the supervision by a public authority of the care of a child by any person having charge of the child; 
g) the administration, conservation or disposal of the child’s property.

The Convention does not apply to 

a)the establishment or contesting of a parent-child relationship; 
b)decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption; 
c) the name and forenames of the child; 
d) emancipation; 
e) maintenance obligations; 
f)  trusts or succession; 
g) social security; 
h) public measures of a general nature in matters of education or health; 
i) measures taken as a result of penal offences committed by children; 
j) decisions on the right of asylum and on immigration.

The Chapter II  Jurisdiction 

Art 5 states that the judicial or administrative authorities of the Contracting State of the habitual residence of the child have jurisdiction to take measures directed to the protection of the child’s person or property.

Art. 7 and 50 shed some light on the interaction between the 1996 Convention and 1980 Convention, thus allowing states who are not parties to the 1980 Convention to apply the return procedure under the 1980 Convention.

The concept of “subsidiary jurisdiction” is laid down in Art. 8 and 9.  The subsidiarity allows the habitual residence of a child to be set aside as a ground for jurisdiction in favour of another state following the grounds enumerated in Para 2 Art.8 (nationality of a child;  in which property of the child is located;  whose authorities are seized of an application for divorce or legal separation of the child’s parents, or for annulment of their marriage;  a State with which the child has a substantial connection). The competent authority of the State of habitual residence of a child may request the authority of another State to assume jurisdiction to take measures of protection.  Competent authorities of the states enumerated in Para 2 Art.8,  may also request that they are authorized to exercise jurisdiction to take the measures of protection (Art.9). So, the subsidiary jurisdiction means that either authority may request or assume jurisdiction.

The concurrent jurisdiction grounds are also provided for:

The authorities of the divorce jurisdiction may, concurrent with the authorities of the child’s habitual residence, take measures of protection if two conditions are satisfied:

 (i) one of the child’s parents having parental responsibility habitually resides in the Contracting State whose authorities are exercising divorce jurisdiction; and

(ii) the parents and any other third person with parental responsibility for the child accept that the Contracting State whose authorities are exercising divorce jurisdiction should be permitted take measures of protection and that that is in the best interests of the child

Measures of interim nature or in cases of urgency.

The State where the child is present may, pending return to the habitual residence jurisdiction, deal with:

(a) Situations of urgency. The authorities of a Contracting State in whose territory the child (or the child’s property) is present shall have jurisdiction to take such necessary measures of protection. These measures are temporary.

(b) Interim measures concerning the child (or the child’s property) are sought. The authorities of the Contracting State on which the child or his/her property is located shall have jurisdiction to take such provisional measures for the protection of the person or property of the child. These measures have limited territorial effect and will lapse when corresponding measures have been taken in the country of the child’s habitual residence.

Art. 11 and 12 cover situations where a child resides in the territory of the State party to the Hague 1996 Convention, but the State of the habitual residence of the child is not a party to the Hague 1996 Convention.

Regarding the jurisdiction of the State where the property of the child is located, Russia reserved the jurisdiction of its authorities to take measures directed to the protection of property of a child situated in its territory according to Art. 55.

For refugees, internationally-displaced children, or children whose habitual residence cannot be ascertained, the State in which the child is present has jurisdiction.

All the provisions of Chapter II create a uniform  system of rules of jurisdiction, obligatory for states party to the 1996 Hague Convention if a child who is in need of protection, is habitually resident in the territory of one of the states.

The Chapter III Applicable Law. Art. 15 (1) states that “in exercising their jurisdiction under the provisions of Chapter II, the authorities of the Contracting States shall apply their own law”, so the principle of lex fori is laid out. However, in so far as the protection of the person or the property of the child requires, they may exceptionally apply or take into consideration the law of another State with which the situation has a substantial connection (art. 15 (2)).

The 1996 Hague Convention consolidates the choice of law rules stating that the questions of attribution, exercise, extinction or termination of parental responsibility are governed by the law of the country of habitual residence of a child (art. 16, 17, 18).  The application of the law designated by the provisions of this Chapter can be refused only if this application would be manifestly contrary to public policy, considering the best interests of the child.

As regards Art. 16 (2), the term ‘agreement’ encompasses declarations of parental custody, possible in some countries (Germany).

According to Art. 16 (3) parental responsibility which exists under the law of the State of the child’s habitual residence subsists after a change of that habitual residence to another State. It means that parents are discouraged from abducting or not returning their children since this will not change which courts are primarily responsible and which country’s laws will be applied, and will not lead to a better position for the abducting/non-returning parent in terms of parental responsibility.

From a practical point of view, the provision of Art. 16 is of paramount importance as it is often relevant in child abduction cases.

Chapter IV – Recognition and enforcement considers recognition (Art. 23-25), declaration of enforceability or registration for the purpose of enforcement (art. 26 и 27) and enforcement (Art. 28). The general principle is that a measure of protection taken in one Contracting State shall automatically be recognized by operation of law in all other Contracting States. But any interested person may request a decision on the recognition or non-recognition of a measure taken in another Contracting State (Art. 24).

Measures taken shall be declared enforceable or registered for the purpose of enforcement in other States according to the procedure provided in the law of the latter State (Art.26).  This procedure may be either administrative or judicial. Grounds for refusal of recognition of measures declared enforceable or registered for the purpose of enforcement are stated in Art. 23 (2).   

In NG v OG [2014] EWHC 4182, the English court declined to recognize a Russian custody judgment because the Russian court had not given the child an opportunity to be heard.

In Russia, the procedure for recognition and enforcement is governed by Chapter 45 of the Russian Civil Code.  

Chapter V Co-operation establishes co-operation between Central Authorities, which plays an important role in the effective operation of the Convention. The cross-border exchange of information under Art. 32-34 1996 Hague Convention is very important. According to Art. 34 where a measure of protection is contemplated, the competent authorities under the Convention, if the situation of the child so requires, may request any authority of another Contracting State which has information relevant to the protection of the child to communicate such information. It should be noted that the notion «information relevant to the protection of the child» is a general category and encompasses different kinds of documents. In the Russian context requests on cross-border exchange of information are sent to the Russian Central Authority which transfers them to competent authorities of territorial units (there are 91 units) of the Russian Federation. In practice, the kind of information requested is a report on the situation of the child.  The local child protection service drafts a report on the situation of the child in Russian, no translation is provided, no templates are used. The report then is sent to the Russian Central Authority which will transfer it to the requesting Central Authority.

Chapter VI General provisions contains important provisions such as the protection of personal data (Art. 41), confidentiality of transmitted information (Art. 42), and exemption from legalization or any analogous formality (Art. 43). 

According to Art. 40, once a measure of protection has been taken in relation to a child, competent authorities may deliver a certificate to the person who has parental responsibility or who has been entrusted with the protection of the child’s person or property. This certificate indicates the capacity in which that person is entitled to act and the powers conferred upon him/her. There is no obligation for a Contracting State to provide such certificates. In Russia, no authority is designated for this purpose.

Art. 52 states that this Convention does not affect any international instrument to which Contracting States are Parties and which contains provisions on matters governed by the Convention, unless a contrary declaration is made by the States party to such instrument. This provision is important as Russia is party to about 30 bilateral agreements containing provisions on matters relating to the protection of children. Moreover, the Minsk Convention 1993 which binds the CIS countries, mostly overlaps with the 1996 Hague Convention, but the former establishes nationality (lex patriae) as a criterion for jurisdiction.

Conclusion The practical operation of the 1996 Hague Convention in Russia raises a lot of questions that remain unanswered due to the absence of domestic legislation on its implementation.  I would like to make some suggestions as a practising lawyer bearing in mind that drafting of an implementation act will require further study and larger discussion between legal professionals, judges, and relevant authorities.

  1. Russian Procedural Code is not ‘tailored’ to the application of the 1996 Hague Convention. Chapter 45 of the Russian Procedural Code does not allow for recognition and enforcement of foreign administrative decisions, only foreign court judgments may be enforced in Russia. It requires a special procedure for the recognition and enforcement of a foreign court judgment in a senior court (court of second instance), far from “a simple and rapid procedure” as laid down in Para.2 Art.26 of the 1996 Hague Convention. And if some courts for example Moscow or St-Petersburg city courts, have an abundant practice with cross-border cases, this is not the case for a lot of courts throughout the country.
  2. So apparently the Supreme Court should issue Practice Directions on the application of the 1980 Hague Convention and 1996 Hague Convention to make the application of the Hague Conventions in Russia more effective. The participation of a Russian judge in the International Hague Network of Judges is another condition, but again it depends on such a judge being appointed by the Supreme Court.
  3. Regarding the administrative cooperation, a report on the situation of the child is drawn up by child protection services, but there is no uniform template for filling in such a report. I suggest that the Russian Central Authority should provide a uniform template to be used by child protection services for the purpose of the 1996 Hague Convention.
  4. Another big issue is the absence of any reference to the concept of ‘the habitual residence of the child’ in the Federal Act “On guardianship and curatorship”. This leads to the reluctance to cede jurisdiction to another Contracting State of the 1996 Hague Convention if a child in question has Russian nationality and his habitual residence is not in Russia.
  5. It might be appropriate to consider the possibility to entitle child protection authorities of territorial units to deliver certificates to persons (other than the parents of a child) according to Art. 40 of the 1996 Hague Convention indicating his/her capacity and the powers conferred. The certificate might indicate whether parental responsibility results by operation of law, or from a measure of protection taken by a competent authority, and the scope and extent of the powers of the person having parental responsibility.

© 2019 Daria Borminskaya

 

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