Child abduction in family disputes: what to do if it happened in Russia
The number of families, whose members have different citizenships and who repeatedly move from country to country, is growing. Often, as a result of a parents' divorce or a conflict between them, one of them takes common children to another country and prevents the other parent from communicating with them.
Below we review the procedures for resolving such conflicts in cases where children get located in Russia.
A conflict may be caused by a situation when a child who permanently resided outside of Russia was brought to Russia against the will of his/her parent or other legal representative (legal guardian). In most cases, the child is transferred by one of the parents without the consent of the other, i.e., the parent "abducts" the child. Such abduction can take place in 2 main forms:
- Relocation - a person illegally seizes a child and takes him/her abroad;
- Restraint - the child is brought to Russia legally, but is not returned home at the end of the agreed period or at the request of the legal guardian.
Also, a conflict can be caused by a violation of access rights (when the legal guardian is not given the opportunity to temporarily stay with the child, including the ability to temporarily bring him/her to another place).
For a legal settlement of a conflict, a legal guardian can use the following options:
- To demand in Russia the return of the child or the provision of the right of access on the basis of the Convention on the Civil Aspects of International Child Abduction of October 25, 1980 (hereinafter - the 1980 Convention, the Convention);
- To obtain a court or administrative decision abroad regarding the return of the child or access rights in the child's state of residence and then enforce it in Russia.
If it is impossible to use either of these options (for example, if the state of residence does not participate in the relevant conventions), the legal guardian can file a claim for the return of the child or determine the procedure for communicating with him/her on the basis of Russian family law.
I. Mechanism under the 1980 Convention
Russia joined the 1980 Convention in 2011. According to it, any person who claims that a child was illegally transferred abroad or is being held there in violation of custody rights, can apply to the central authority of a State party to the Convention for assistance in returning the child.
Also, measures for the immediate return of such children must be taken by the courts. A parent, another legal guardian, or a Russian prosecutor can apply to the court.
Due to the peculiarities of the mechanism of the Convention, its rules are not applied to all member states (for example, it is inapplicable in relations between Russia and the United States, since the latter have not yet recognized Russia's accession to the Convention). It should also be taken into account that the application of the Convention ceases when the child reaches the age of 16.
(i) Out-of-court claim to the central authority
In Russia, the powers of the central body under the Convention are vested in the Ministry of Education. It is obliged to assist in the initiation of legal proceedings for the return of the child to the country of residence and to provide legal assistance to the legal guardian, if necessary. It also has the authority to take action to search for the child and prevent possible harm to him/her. Applying to the Ministry of Education is an optional step - an interested person can immediately turn to a court and initiate a process to return the child or to ensure access rights.
(ii) Court proceedings on the issue of returning children or providing access rights
Since cases involving the cross-border transfer of children require a certain degree of judicial training, they are subject to jurisdiction of a specific district court in the federal district in which the child is staying. Such cases are considered with the obligatory participation of the prosecutor and the guardianship authority. If the child's place of residence is unknown, a claim may be filed in the region where the child was previously located or where the defendant's last known place of residence is located.
The proceedings are of a limited scope - when resolving the demand for the return of the child, the court does not decide the question of who of the parents the child will live with, as well as other issues related to custody rights. In practice, the Russian courts under the 1980 Convention are mostly asked to return the child. Requirements for the exercise of access rights are made in only a few cases. Almost always one of the child's parents is the applicant (plaintiff), and the claim is brought against the other parent.
Return of the child: the circumstances to be found by the court and possible grounds for refusal
When considering a case on the return of a child, the court must analyze the following circumstances:
• whether the state from which the child was removed is the state of his or her habitual residence;
• whether the plaintiff has custody rights in accordance with the law of the state of child’s habitual residence;
• whether the plaintiff exercised his or her right of custody (i.e., whether the child lived with the plaintiff permanently/periodically, whether the plaintiff participated in child’s upbringing and education);
• the circumstances of the child’s removal to Russia (in particular, whether the plaintiff gave consent to the removal of the child and for how long);
• whether the child has been in Russia up to the start of proceedings.
For example, in one case, the courts denied claims of the plaintiff who had been deprived of custody in the child's country of habitual residence at the time of his removal to Russia. In another case, it was established that both the defendant and the child were foreigners and entered Russia once, after which they left it with no intention of living there in the future - this also served as the ground for refusing the claims.
In a number of cases the most disputable issue in the court is determining the child's place of habitual residence. This is especially true in cases where the child was moved more than once, as well as in those cases where the movement itself was legal, but the subsequent restraint was wrongful. To establish the fact whether the state from which the child was taken out was the place of his or her habitual residence, the following circumstances are taken into account:
• duration, frequency, conditions of the child's presence in a given state;
• educational institution attendance;
• family and social ties of the child in this state;
• citizenship and language skills;
• reasons for the parents' residence in this state and their further intentions to live there (in particular, employment, acquisition of housing, obtaining citizenship, etc.).
For example, the Russian courts did not recognize the states where the parents arrived solely for the purpose of receiving medical assistance during childbirth or for the purpose of working, without the intention of living in the future, as the states of habitual residence.
At the same time, there are some grounds on which the plaintiff may be denied his or her claims, even if it is confirmed that it was wrongful to take the child out of the country of habitual residence. In particular, if the proceedings started after the expiration of 1-year period, the return may be considered impossible if it is demonstrated that the child is settled in the new environment. When deciding whether a child has been settled in Russia, the following circumstances used to be taken into account:
• the period from the moment of his or her removal (retention) to the filing of the statement of claim;
• the total length of stay of the child in Russia at the time of the court judgement;
• regular educational institution attendance in Russia, extracurricular activities;
• social ties (having friends, relatives);
• Russian language proficiency;
• housing and living conditions.
Also, the court may refuse to return the child in the following cases:
• if the rights of custody at the time of the removal or retention of the child were not actually exercised by the plaintiff, or consent to removal or retention in Russia was given, or subsequently there were no objections to removal or retention;
• if there is a grave risk of physical or psychological harm to the child or return places the child in intolerable situation (for example, risks of breaking family ties, worsening conditions for education and medical treatment);
• if the child objects to being returned and has attained an age and degree of maturity at which his or her views should be taken into account (according to Russian law, this age is 10 years, but the court can hear and take into account the opinion of children under this age);
• if the return of the child would not be permitted by the fundamental principles of the Russian Federation relating to the protection of human rights and fundamental freedoms.
For example, in one of the cases, Russian court refused to return children to the father's country of residence (Belgium) due to the fact that criminal proceedings were instituted against their mother for removal children to Russia and a ban was imposed on approaching the ex-husband's house. Since the children had a strong emotional attachment to their mother, the court concluded that separation from her would cause them physical and psychological harm. In addition, the court found that the treatment of children by father was abusive.
Securing rights of access
Proceedings for the exercise of access rights are subject to the same rules as proceedings for the return. For the recognition and exercise of this right neither the length of stay of the child in Russia nor his or her adaptation matters - therefore, a claim can be filed at any time before the child reaches the age of 16. At the same time, the plaintiff must prove that the access rights were previously exercised and that the wrongful removal or retention of the child in Russia prevented its exercise.
Duration of the proceedings
An application for the return of a child or for the exercise of access rights is considered by the court within 42 days from the date on which the application is accepted by the court. If necessary, the judge may prohibit the defendant from changing the child's place of stay (indicating a specific address) before the court decision enters into force and temporarily restrict his departure from Russia.
The court decision enters into force after 10 days from the date of its issuance, if it has not been appealed. In practice, these terms are often violated. For example, the proceedings may be postponed for the purpose of providing additional evidence or for the conduction of an expertise.
For the compulsory execution of the orders contained in the decision (for example, on the transfer of the child to him), the plaintiff can receive a writ of execution in the court along with the decision, which is then presented to the Federal Bailiff Service, after which the bailiffs must execute the court order.
II. Enforcement of a foreign judgement
related to the residence of a child or the right of access
If on issues related to the child's residence or the right of access to it, there are already court decisions rendered abroad, such decisions can be enforced in Russia.
In Russia, decisions of foreign courts on the rights of parents in relation to children are recognized and enforced in the Russian Federation on the basis of the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children of October 19, 1996 (hereinafter - the Convention 1996). For Russia, the Convention entered into force in 2013, and for the purposes of application of the Convention it is necessary to establish whether the state (whose court decision is to be recognized in Russia) has also acceded to the Convention.
It is necessary to apply to a Russian court to enforce such a decision within 3 years from the date on which the decision comes into legal force. As a general rule, the procedure is carried out by a court at the level of a constituent entity of the Russian Federation at the place of residence or location of the defendant in Russia.
Based on the results of the proceedings, the court issues a ruling on the compulsory execution of a foreign court decision or on its refusal. Refusal to recognize the decision of a foreign court is allowed in the following cases:
• a foreign court did not have the right to consider the dispute (in particular, if the child permanently resided in another state);
• the defendant or the child were not given the opportunity to participate in the proceedings;
• the case was considered by a Russian court before its initiation in a foreign court;
• execution of the judgement may damage the sovereignty and security of the Russian Federation or contradict its public order.
As a general rule, the trial of a case in court lasts 2 months. The ruling made by the court may be appealed to a higher court of appeal within 15 days. After the expiration of the time limit for the appeal or the decision by the court of appeal, the ruling comes into force.
After the ruling of the court comes into force, the plaintiff can receive a writ of execution and to submit it to the bailiff service for further execution of the judgment.
III. Claims for the return of a child or access rights based on Russian law
If it is impossible to return the child or ensure the right of access in accordance with the relevant international conventions, a claim may be filed with a Russian court on the basis of Russian family law against the person retaining the child. In particular, the following claims may be filed:
• by the child's parent - on the determination of the child's place of residence with this parent, on the exercise of parental rights by the parent living separately, or on the return of the wrongfully detained child to the parent;
• by the legal guardian - on the return of the wrongfully detained child;
• by another relative (in particular, a grandfather or grandmother, brother or sister) - about removing obstacles to communication with the child.
Such a claim shall be considered by the district or city court at the place of residence of the defendant. The duration of the proceedings can be 2-4 months, and a possible appeal can take the same amount.
In order to prove his or her right to raise a child, the plaintiff must prove his or her sufficient financial position, the best opportunities for the development of children and the child's attachment to him or her. As a rule, it is required to prove the advantages of child’s residence with one parent over living with the other, or the negative impact on the child of the other parent (alcohol or drug addiction, mental disorder, etc.). At the same time, if the parent with whom the child resides, abuses his or her rights, treats him/her cruelly, creates a threat to his/her life and health, a claim for deprivation of his/her parental rights or restriction in them may be filed.
The custody service shall participate in cases concerning the upbringing of children, and also the prosecutor - in cases of deprivation or restriction of parental rights. These bodies give their opinion on the case and, as a rule, their position is taken into account by the court. In particular, in disputes about the place of residence of a child, the custody service conducts an examination of the place of residence of the child and persons applying for his or her upbringing.
At the same time, for a plaintiff, especially a foreigner, the possibilities to resolve the case in his or her favor in the ordinary procedure are limited. For example, the Russian custody service cannot inspect the plaintiff's home abroad to assess the child's living conditions and, therefore, cannot express its opinion in his or her favor. Also, if a child has Russian citizenship, Russian courts tend to protect his or her or her right to upbringing in accordance with Russian national traditions and local culture.
Summarizing the above, in a situation of a family conflict related to the relocation or retention of a child in Russia, it is recommended:
1) To determine the applicability of the relevant conventions to the situation (the 1980 Convention, the 1996 Convention).
2) If the 1980 Convention is applicable, initiate the return or access proceedings through the appropriate court, as the fastest variant. The court shall be provided with evidence of the child's permanent residence in another state and the exercise of custody or access rights by the plaintiff. When claiming the return of the child, this should be done, if possible, no later than 1 year from the moment the child was moved, and it must also be confirmed that the return will not harm the child. You can also contact the Russian Ministry of Education for assistance in reaching a peaceful settlement of the dispute.
3) If the 1996 Convention is applicable and there is a court decision on measures concerning a child taken in his or her country of residence, the procedure for the recognition of this decision in a Russian court and its implementation by the Russian authorities may be initiated.
4) If it is impossible to apply international conventions, depending on the situation, a claim may be filed according to a Russian family law.
When implementing either of the options, it is necessary to take into account many nuances and prove a number of circumstances. This requires a deep analysis of each specific case and the development of a strategy with the participation of qualified lawyers.
How we can help
Lawyers of Avakov Tarasov & Partners provide legal aid in the cases where the return of children to the state of residence and ensuring parental access to the child are claimed, including legal advice, mediation in the peaceful settlement of a dispute, preparation of an application to the court, appeals, petitions and other court documents, interaction with Russian authorities.
 Art. 8 of the Convention.
 Art. 7 of the Convention.
 Art. 244.11 of the Russian Civil Procedure Code.
 Art. 244.15 of the Russian Civil Procedure Code.
 Art. 19 of the Convention.
 Art. 12 of the Convention.
 Art. 57 of Russian Family Code
 Art. 13, 20 of the Convention
 Art. 244.15 of the Russian Civil Procedure Code.
 Art. 244.17 of the Russian Civil Procedure Code.
 Art. 412 of the Russian Civil Procedure Code.
 Art. 154 of the Russian Civil Procedure Code.
 Art. 332 of the Russian Civil Procedure Code.
 Art. 65, 66, 68 of Russian Family Code.
 Art. 150 of Russian Family Code.
 Art. 67 of Russian Family Code.
 Art. 69, 73 of Russian Family Code
 Art. 78 of Russian Family Code
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