What is international child abduction?
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (hereinafter referred to as the Convention) is applied to protect the interests of a child in the event of his international abduction. On July 28, 2011, Russia acceded to the Convention, which entered into force for it on October 1, 2011.
The term «abduction» used in the Convention is the abduction of a child by one's own parents. This is not at all the kidnapping, which is called in English «kidnapping», when a stranger grabs a child on the street, or kidnaps a child in some other way.
There is no criminal penalty in Russian law for international parental abduction of children. In other countries, punishment for such actions of a parent is quite common. In our opinion, it is necessary to criminalize the international abduction of children by parents, because otherwise, such unauthorized actions of parents will never stop.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (hereinafter referred to as the Convention) is applied to protect the interests of a child in the event of his international abduction. On July 28, 2011, Russia acceded to the Convention, which entered into force for it on October 1, 2011.
The term «abduction» used in the Convention is the abduction of a child by one's own parents. This is not at all the kidnapping, which is called in English «kidnapping», when a stranger grabs a child on the street, or kidnaps a child in some other way.
There is no criminal penalty in Russian law for international parental abduction of children. In other countries, punishment for such actions of a parent is quite common. In our opinion, it is necessary to criminalize the international abduction of children by parents, because otherwise, such unauthorized actions of parents will never stop.
If one parent took the child and left with the child for Russia without the consent of the other parent or a court decision, the child must be returned to the country from which he was taken.
In other words, the provisions of the Convention are aimed at the rapid return of an illegally displaced or detained child to the country of his permanent (usual) residence, since the unexpected and often violent removal of the child from the place where he used to be, separation from the parent and other close relatives violates his interests.
It should be noted that a child, in accordance with the norms of the Convention, is a person under the age of 16, therefore, when a child reaches the age of 16, the Convention ceases to apply to him.
The current list of participating States that have recognized Russia's accession is on the official website of the Hague Conference on Private International Law.
It should be noted that a child, in accordance with the norms of the Convention, is a person under the age of 16, therefore, when a child reaches the age of 16, the Convention ceases to apply to him.
The current list of participating States that have recognized Russia's accession is on the official website of the Hague Conference on Private International Law.
How to start the return process?
In practice, there can be two situations: (1) when the parent knows where the child is; (2) when the parent does not know where the child is.
If the parent knows the exact location of the child, then it is necessary to apply for the return of the children to the state of permanent residence in the Russian court of general jurisdiction in accordance with Chapter 22.2 of the Code of Civil Procedure of the Russian Federation. It is not required to come to Russia in order to initiate proceedings on the case. It is enough to have a representative by proxy or a lawyer.
If the parent does not know the exact location of the child, then you will have to start the procedure for searching for the child. To do this, you must first prepare an appeal to the Central Authority on the organization of the search and the return of the child. In Russia, this body is the Ministry of Education of the Russian Federation. According to the submitted appeal, the Ministry of Education of the Russian Federation organizes the search for the child. The Federal Bailiff Service of the Russian Federation, on a special request from the Ministry of Education of the Russian Federation, is conducting a procedure for searching for a child.
In practice, there can be two situations: (1) when the parent knows where the child is; (2) when the parent does not know where the child is.
If the parent knows the exact location of the child, then it is necessary to apply for the return of the children to the state of permanent residence in the Russian court of general jurisdiction in accordance with Chapter 22.2 of the Code of Civil Procedure of the Russian Federation. It is not required to come to Russia in order to initiate proceedings on the case. It is enough to have a representative by proxy or a lawyer.
If the parent does not know the exact location of the child, then you will have to start the procedure for searching for the child. To do this, you must first prepare an appeal to the Central Authority on the organization of the search and the return of the child. In Russia, this body is the Ministry of Education of the Russian Federation. According to the submitted appeal, the Ministry of Education of the Russian Federation organizes the search for the child. The Federal Bailiff Service of the Russian Federation, on a special request from the Ministry of Education of the Russian Federation, is conducting a procedure for searching for a child.
Which court should I apply to?
The competent court to consider the application is determined based on the district in which the child resides (part 2 of article 244.11 of the Code of Civil Procedure of the Russian Federation). Courts hearing cases under the Convention are located in Moscow, St. Petersburg, Rostov-on-Don, Pyatigorsk, Nizhny Novgorod, Yekaterinburg, Novosibirsk and Khabarovsk. Depending on where the kidnapped child is located, one of these courts will hear the case.
The competent court to consider the application is determined based on the district in which the child resides (part 2 of article 244.11 of the Code of Civil Procedure of the Russian Federation). Courts hearing cases under the Convention are located in Moscow, St. Petersburg, Rostov-on-Don, Pyatigorsk, Nizhny Novgorod, Yekaterinburg, Novosibirsk and Khabarovsk. Depending on where the kidnapped child is located, one of these courts will hear the case.
What is the return probability?
The principle of competitiveness (Article 12 of the Code of Civil Procedure of the Russian Federation) is also valid when considering such a specialized category of cases. The likelihood of a child returning to a parent directly depends on how actively such a parent will be in the process, the quality of the evidence that they use to prove their position, as well as the time that has passed since the international abduction of the child.
In order to ensure the return of the child in accordance with the provisions of the Convention, it is necessary to establish the fact of illegal removal or retention of the child.
When considering cases on the return of a child from Russia, the courts examine such legally significant circumstances as:
The principle of competitiveness (Article 12 of the Code of Civil Procedure of the Russian Federation) is also valid when considering such a specialized category of cases. The likelihood of a child returning to a parent directly depends on how actively such a parent will be in the process, the quality of the evidence that they use to prove their position, as well as the time that has passed since the international abduction of the child.
In order to ensure the return of the child in accordance with the provisions of the Convention, it is necessary to establish the fact of illegal removal or retention of the child.
When considering cases on the return of a child from Russia, the courts examine such legally significant circumstances as:
- the plaintiff has the right of custody in accordance with the legislation of the state where the child permanently resided before his transfer or retention, and the plaintiff's exercise of these rights;
- whether the state from which the child was taken out is his permanent place of residence;
- circumstances of moving to Russia;
- the presence of the consent of the other parent to the removal of the child and the period for which it was given.
If a child was illegally transferred by one parent to Russia, the court is obliged to order the return of this child to the second parent in the country from which he was abducted. Of course, there are exceptions that are expressly provided for in the Convention. The most important rule is the following: if the child was taken out illegally, then it must be returned without delay.
The Russian court, as well as the court of any other country where the child was illegally taken or where the child is illegally kept, is obliged to order the return of this child no matter what.
The Russian court, as well as the court of any other country where the child was illegally taken or where the child is illegally kept, is obliged to order the return of this child no matter what.
The Russian court has 42 days to make a reasoned decision to return the child.
In order to verify the parent's arguments that the state from which the child was moved is the place of his permanent residence, the courts examine such circumstances as the duration, frequency, conditions of the child's stay in the territory of this state, the place and conditions of his visit to a preschool institution or school , family and social ties of the child in this state, the citizenship of the child and his language skills, the reasons why the parents lived in this state, and their intention to further reside in this state (in particular, the conclusion of an employment contract, the acquisition of housing, the acquisition of citizenship country of residence) and others.
According to the statistics given, from 2016 to 2018, the courts of first instance with a decision considered 71 cases on the return of a child (in 2016 — 13 cases, in 2017 — 26, in 2018 — 32). Of these, in 23 cases the request for return was granted, in 48 cases the requests were denied. Of all the decisions taken, 48 were appealed, of which 37 were left unchanged by the appeal, 8 were annulled with a new decision to dismiss the claim for the return of the child, in one case a new decision was made to satisfy the request for the return of the child, in two cases the complaint was denied.
Can the child be returned?
The court does not always prescribe the return of the child to the country of his usual residence. It happens that the Convention is not applicable to the specific movement of a child across the border. Sometimes the court finds exceptional circumstances that do not allow the return of the child to the country from which he was taken.
Circumstances can be qualified as exceptional if they are related to the living conditions of the child in the country from which he was taken. As a rule, they are determined by the conditions in which the child cannot be returned. In this case, the Russian court may refuse to return the child.
According to principle 6 of the UN Declaration on the Rights of the Child of November 20, 1959 (hereinafter referred to as the Declaration), a young child should not, except in exceptional circumstances, be separated from his mother. In other words, Principle 6 of the Declaration effectively establishes the priority of the mother over the young child.
Increasingly, Russian courts, considering cases on the return of illegally removed and detained children on the territory of Russia, refuse fathers to return children to their country of usual (permanent) residence, pointing to the application of the provisions of principle 6 of the Declaration. When motivating their decision, the courts confine themselves to pointing out that no exceptional circumstances of separation of the child from the mother were established at the court session.
Convention in Art. 13 clearly defines exceptional cases, when establishing which the court has the right to refuse to return children to the state of their permanent residence. In this case, the burden of proof of exceptional circumstances lies with the person who objects to the return of children.
An expansive interpretation of this provision is not allowed; circumstances that can be found by a court to justify refusing to return a child must indeed be exceptional and pose a «very serious risk» to the child.
The court does not always prescribe the return of the child to the country of his usual residence. It happens that the Convention is not applicable to the specific movement of a child across the border. Sometimes the court finds exceptional circumstances that do not allow the return of the child to the country from which he was taken.
Circumstances can be qualified as exceptional if they are related to the living conditions of the child in the country from which he was taken. As a rule, they are determined by the conditions in which the child cannot be returned. In this case, the Russian court may refuse to return the child.
According to principle 6 of the UN Declaration on the Rights of the Child of November 20, 1959 (hereinafter referred to as the Declaration), a young child should not, except in exceptional circumstances, be separated from his mother. In other words, Principle 6 of the Declaration effectively establishes the priority of the mother over the young child.
Increasingly, Russian courts, considering cases on the return of illegally removed and detained children on the territory of Russia, refuse fathers to return children to their country of usual (permanent) residence, pointing to the application of the provisions of principle 6 of the Declaration. When motivating their decision, the courts confine themselves to pointing out that no exceptional circumstances of separation of the child from the mother were established at the court session.
Convention in Art. 13 clearly defines exceptional cases, when establishing which the court has the right to refuse to return children to the state of their permanent residence. In this case, the burden of proof of exceptional circumstances lies with the person who objects to the return of children.
An expansive interpretation of this provision is not allowed; circumstances that can be found by a court to justify refusing to return a child must indeed be exceptional and pose a «very serious risk» to the child.
If the child does not want to return?
International acts do not contain an indication of the specific age of the child, after which he should be given the opportunity to be heard and his opinion should be taken into account.
The wish of the child is taken into account if the court concludes that the child has already reached such an age and degree of maturity at which his opinion should be taken into account (Article 13 of the Convention).
The opinion of the child on the issue of their possible return to the state where they lived before moving to Russia is revealed by the guardianship and guardianship authority when drawing up an act of examining the living conditions of the child, which is reflected in the conclusions prepared by this body, and is also revealed directly by the court in a court session.
The child has the opportunity to be heard in the course of any judicial or administrative proceedings affecting his interests (Article 12 of the Convention on the Rights of the Child of 09/15/1990). In a Russian court, all children older than 10 are interrogated. In some cases, even a younger child may be interrogated.
International acts do not contain an indication of the specific age of the child, after which he should be given the opportunity to be heard and his opinion should be taken into account.
The wish of the child is taken into account if the court concludes that the child has already reached such an age and degree of maturity at which his opinion should be taken into account (Article 13 of the Convention).
The opinion of the child on the issue of their possible return to the state where they lived before moving to Russia is revealed by the guardianship and guardianship authority when drawing up an act of examining the living conditions of the child, which is reflected in the conclusions prepared by this body, and is also revealed directly by the court in a court session.
The child has the opportunity to be heard in the course of any judicial or administrative proceedings affecting his interests (Article 12 of the Convention on the Rights of the Child of 09/15/1990). In a Russian court, all children older than 10 are interrogated. In some cases, even a younger child may be interrogated.
If a lawsuit is filed in Russia to determine the place of residence of the child or to dissolve the marriage?
In practice, a situation often arises when a parent who abducted a child to Russia immediately files a lawsuit with a district court of general jurisdiction to determine the place of residence of the child with him. Or he files a claim for divorce and at the same time declares in the claim a requirement to recognize the place of residence of the child with the parent with whom he moved to Russia.
In practice, a situation often arises when a parent who abducted a child to Russia immediately files a lawsuit with a district court of general jurisdiction to determine the place of residence of the child with him. Or he files a claim for divorce and at the same time declares in the claim a requirement to recognize the place of residence of the child with the parent with whom he moved to Russia.
If a parent applies to a Russian court for the return of the child on the basis of the Convention, then the rest of the legal cases related to the custody of the child are suspended until the issue of the return of the child is resolved.
But often Russian courts do not take into account that the dispute on the return of an illegally displaced/retained child is not a dispute on determining the place of residence of the child, and the court does not have jurisdiction to consider disputes on the merits between the parents about the place of residence of the child (Articles 16, 19 of the Convention, Article 244.14 Code of Civil Procedure of the Russian Federation).
What documents are required for the court?
In court, the parent demanding the return of the child must prove that the child was moved by the second parent to Russia illegally, that the conscientious parent has the right of custody of the child.
As attachments to the application to the court, it will be enough to attach the child’s birth certificate and evidence showing that the other parent came to Russia with the child. This evidentiary material will be enough to start a judicial procedure.
Documents submitted to the court as evidence must be translated into Russian. The convention allows documents to be submitted to the court in the form of the state that issued them, without the obligatory affixing of an apostille. Their apostille is desirable, but not required.
In court, the parent demanding the return of the child must prove that the child was moved by the second parent to Russia illegally, that the conscientious parent has the right of custody of the child.
As attachments to the application to the court, it will be enough to attach the child’s birth certificate and evidence showing that the other parent came to Russia with the child. This evidentiary material will be enough to start a judicial procedure.
Documents submitted to the court as evidence must be translated into Russian. The convention allows documents to be submitted to the court in the form of the state that issued them, without the obligatory affixing of an apostille. Their apostille is desirable, but not required.
How to enforce the court decision?
In necessary cases, along with other measures to secure a claim in accordance with Chapter 13 of the Code of Civil Procedure of the Russian Federation, the judge may prohibit the parent, until the court decision in the case on the return of the child or on the exercise of access rights, to change the place of residence of the child and temporarily restrict his departure from Russia (Article 244.13 Code of Civil Procedure of the Russian Federation).
In necessary cases, along with other measures to secure a claim in accordance with Chapter 13 of the Code of Civil Procedure of the Russian Federation, the judge may prohibit the parent, until the court decision in the case on the return of the child or on the exercise of access rights, to change the place of residence of the child and temporarily restrict his departure from Russia (Article 244.13 Code of Civil Procedure of the Russian Federation).
If a parent put a ban on the child's departure from Russia?
The parent has the right to unmotivatedly declare his disagreement with the departure from Russia of a minor citizen of the Russian Federation (Article 21 of the Federal Law «On the Procedure for Departure from the Russian Federation and Entry into the Russian Federation»).
If you have in your hands a court decision that has entered into force ordering the return of the child under the Convention, even if there is a filed application for disagreement with the departure of the child, there will be no problems at the border. The child will leave Russia without obstacles.
The parent has the right to unmotivatedly declare his disagreement with the departure from Russia of a minor citizen of the Russian Federation (Article 21 of the Federal Law «On the Procedure for Departure from the Russian Federation and Entry into the Russian Federation»).
If you have in your hands a court decision that has entered into force ordering the return of the child under the Convention, even if there is a filed application for disagreement with the departure of the child, there will be no problems at the border. The child will leave Russia without obstacles.