On Russia’s accession to the Protection of Children Convention

17.02.2019

Generalities

The Russian Federation has acceded to the Protection of Children Convention 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

The scope of the  Convention is stated in Art. 1-4. Thus, the term “parental responsibility”  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.

While in Norway, the UK, Portugal, and the Czech Republic (rodičovská odpovědnost) the term is expressly used, 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 in use in Russian family law.

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;
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.

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. In this regard, the Russian Supreme Court in its ruling № 5-КГ18-325 (pp. 41-44) stated that Russian courts are competent to hear cases dealing with parental responsibility, if a child’s place of habitual residence is in Russia, and that provisions of the migration legislation,inter alia,  should be taken into account for determining its place of habitual residende.

Art. 7 and 50 shed some light on the interaction between the Protection of Children  Convention and Child Abduction Convention, thus allowing states who are not parties to the Child Abduction Convention to apply its return mechanism.

Subsidiary and alternative  jursidiction

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.

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  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 deal with:

(a) Situations of urgency.

(b) Interim measures concerning the child (or the child’s property).  These measures 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 which is party to the Protection of Children Convention, but the State of the habitual residence of the child is not a party to it.

In addition, Russia reserved the jurisdiction of its authorities to take measures directed to the protection of property of a child according to Art. 55. Thus, according to the Russian legislation,  the local child protection services,  acting in the framework of the Federal Act “On Guardianship and Curatorship” (art.18-20) as well as of local acts (of the territorial unit of the Russian Federation)  are  competent to take  measures of protection of property of a child.

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

So all the provisions of Chapter II create a uniform  system of rules of jurisdiction, obligatory for states party to the Protection of Children 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) lays down the principle of lex fori. 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 Protection of Children 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).  It 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 (f.ex.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. Hence, parents are discouraged from abducting or not returning their children.

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

Recognition and enforcement

The Chapter IV 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.

 Co-operation

Central Authorities  play an important role in the effective operation of the Convention. The cross-border exchange of information under Art. 32-34  is very important. According to Art. 34 the competent authorities 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.

General provisions

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) are contained in the chapter VI.

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. This certificate indicates the capacity in which that person is entitled to act and the powers conferred upon him/her. However, 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, unless a contrary declaration is made. 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 Protection of Children Convention, but the former establishes nationality (lex patriae) as a criterion for jurisdiction.

Conclusion

The practical operation of the  Protection of  Children Convention in Russia raises a lot of questions that remain unanswered due to the absence of domestic legislation on its implementation:

  1. Russian  Code of Civil Procedure is not ‘tailored’ to the application of the  Protection of Children Convention. Thus, its chapter 45 Code does not allow for recognition and enforcement of foreign administrative decisions, only foreign court judgments may be enforced in Russia.  Besides, it requires a special procedure in a court of second instance, which is far from “a simple and rapid procedure” as laid down in Para.2 Art.26 of the Protection of Children 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 Child Abduction Convention and  Protection of Children Convention to make their application 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. There is no uniform template for filling in a report on the situation of the child to be  drawn up by child protection authorities.
  4. The absence of any reference to the concept of ‘the habitual residence of the child’ in the Federal Act “On guardianship and curatorship” is problematic. In fact, it leads to the reluctance to cede jurisdiction to another Contracting State  if a child has Russian nationality and  lives in another country.
  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)  indicating his/her capacity and the powers conferred.

© 2019 Daria Borminskaya

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