England and Wales High Court (Family Division) Decisions

i)                    an application brought under the Child Abduction and Custody Act 1985 (incorporating the Hague Convention on the Civil Aspects of International Child Abduction 1980) (the ‘1980 Hague Convention’) dated 25 March 2020;

and in the alternative,

ii)                  an application brought under the inherent jurisdiction.

These applications, brought by the children’s mother (“the mother”) pursue the same objective, namely the return of her son, K, currently aged 8, to the Federation of Russia.  K has an older sister (L) who is just 16 years old, and is not the subject of these applications.   The mother contends that the children’s father (“the father”) wrongfully removed K from Russia on 4 July 2019, or in the alternative has wrongfully retained K away from Russia in either late-August, September, or October 2019.  Her primary case is that the 1980 Hague Convention provides appropriate jurisdiction to achieve K’s summary return.  She resorts to arguments based on the inherent jurisdiction in the event that I conclude that the 1980 Hague Convention is not engaged.

i)                    Whether K was habitually resident in Russia at the time of the relevant removal or retention;

ii)                  If K had been habitually resident in Russia immediately before his removal or retention from that country, whether the mother had rights of custody in respect of K at the relevant time, in the sense of the father requiring her consent (or permission from the courts in Russia) for the relevant removal or retention; 

iii)                 If the 1980 Hague Convention is thus engaged,

a)                  whether there is a grave risk that the return of K to Russia would expose him to physical or psychological harm or otherwise place him in an intolerable situation;

b)                 whether K objects to being returned to Russia and has attained an age and degree of maturity at which it is appropriate to take account of his views;   

iv)                If the ‘grave risk’ and/or ‘child objections’ gateways are passed, whether the court should exercise its discretion in favour of, or against, making a return order.

Background history

“There is a strong argument that as the children are Russian, their ethnic and cultural needs are best met in Russia…”;

“The father has in the past indicated that he can work remotely but in reality, the extended family and his business interests are all in Russia.”

“K’s absence from school is due to the need for dental treatment and back examination because of diagnosed scoliosis to get the opinion of foreign specialists. The appointment during school hours is due to the working hours of the relevant medical facilities and the sudden need for dental treatment”.

Russian family proceedings

Further English family proceedings (2020)

The mother’s case

The father’s case

i)                    K was habitually resident in England as at July 2018;

ii)                  During the period which K spent in Russia during the autumn of 2018 and the first six months of 2019 he did not lose his English habitual residence and did not acquire habitual residence in Russia. Thus, the removal/retention cannot be wrongful;

iii)                If K was habitually resident in Russia at the time of the removal/retention, the mother had no rights of custody and was not exercising rights of custody;

iv)                Article 13(b) is engaged, and K will be at grave risk of harm should he be returned to Russia. It is the father’s position that he will not be able to return to Russia with K;

v)                  In any event, K strongly objects to a return and that he is of an age where it is “appropriate to take account of [his] views” and that I should exercise my discretion in not returning K to Russia.

“Now we are considering the possibility to move back to London as my older daughter studies there at [name of school] and [K] and I want to be closer to her.  Therefore I wonder if [K] can be accepted at [London Prep School] from September or October 2019 and would be grateful if you kindly consider this possibility although I understand that it is a very short notice”. (emphasis by underlining added).

Was the removal or retention in breach of the mother’s rights of custody?

“I wish to emphasise the international character of this legislation.  The whole purpose of such a code is to produce a situation in which the courts of all contracting states may be expected to interpret and apply it in similar ways, save insofar as the national legislatures have decreed otherwise.  Subject then to exceptions…the definitions contained in the Convention should be applied and the words of the Convention, including the definitions, construed in the ordinary meaning of the words used and in disregard of any special meaning which might attach to them in the context of legislation not having this international character.”

“It is the duty of the court to construe the Convention in a purposive way and to make the Convention work. It is repugnant to the philosophy of the Convention for one parent unilaterally, secretly and with full knowledge that it is against the wishes of the other parent who possesses "rights of custody," to remove the child from the jurisdiction of the child's habitual residence. "Rights of custody" within the convention are broader than an order of the court and parents have rights in respect of their children without the need to have them declared by the court or defined by court order. These rights under the Convention have been liberally interpreted in English law.” (emphasis by underlining added).

“The question is, do the rights possessed under the law of the home country by the parent who does not have the day to day care of the child amount to rights of custody or do they not? States’ laws differ widely in how they look upon parental rights. They may regard the whole bundle of rights and responsibilities which the law attributes to parents as a cake which can be sliced up between the parents: one parent having the custody slice, with the package of rights which that entails, and the other having the access slice, with the different package of rights which that entails. This is by no means an unusual way of looking at the matter. Alternatively, the state may regard the whole bundle of parental rights and responsibilities as inhering, and continuing to inhere, in both parents save to the extent that they are removed or qualified by the necessary effect of a court order or an enforceable agreement between them” [26].

i)                    What was the mother’s legal position created by the law of Russia (the state in which the child was habitually resident) immediately before the removal or retention?

ii)                  Does the position created by the law of Russia equate to ‘rights of custody’ for the person in question having regard to the meaning of the term ‘rights of custody’ as established by the autonomous law of the 1980 Hague Convention?

i)                    Article 61 of the Family Code. Equality of rights and obligations of parents. Parents have equal rights and bear equal responsibilities in respect of their children (parental rights).

ii)                  Article 65 of the Family Code. Exercise of parental rights. (1)…. (2) The parents decide on all matters relating to the upbringing and education of their children by mutual consent, giving due consideration to the child's interests and opinion. If there are disagreements between the parents, the parents (one of them) have the right to apply to the Child Protection Services or the court for resolution of such disagreements.  (3). Place of residence of children in case of separation of parents is established by agreement of parents. If there is no agreement between the parents, the dispute between the parents shall be settled by the court giving due consideration to the child's interests and opinion…

iii)                Article 66 of the Family Code. Exercise of parental rights by a parent living separately from the child.  The parent living separately from the child has the right to communicate with the child, participate in his/her upbringing and solution of the issues of receiving education.

“According to the Russian family legislation the only way to restrict custody rights ("parental responsibility" in the Russian Family Code) or deprive of custody rights is a court decision. If there is no such a court decision, both parents have joint custody rights without any exceptions. Even when one of the parents is imprisoned, it does not mean that he/she is automatically restricted or deprived of custody rights…. If the minor has both parents and one of them is imprisoned, the custody rights of the imprisoned parent still exit [sic. ‘exist’] (as the right to make an exit ban).”

“[9] …even where parents are living separately and apart, Article 65 of the Family Code prescribes that all questions of the child’s upbringing, education and protection shall be decided by mutual agreement. If the parents fail to reach an agreement, they may apply to a court or competent youth authority.

[11] Under the Russian law such decisions neither grant “living with” parent more rights than “living apart” parent nor can change “parental rights belong to both parents” rule. That means that (i) a parent who has the benefit of a court order providing that a named child “live with” that parent has the same parental rights (“rights of custody”) as another parent, and therefore (ii) and all rules of the child’s location by not withstanding that “the child shall live with” court order has been made.

[16] Under the Russian migration regulations, the child might be removed from Russia by one of the parents (“living with” or “living apart”). No “the child shall live with” court order can change this rule… If the parent does not want the child to leave the country, he/she should declare it by filing an application to ban the child from leaving Russia…

[17] … Imposed travel ban just prevents crossing the state border, and lack of such a plan cannot be interpreted as a silent consent. … from the Russian legal perspective, the sole fact that the mother’s application for travel ban imposing (sic.) has been granted proves that she had a full range of parental rights (‘rights of custody’ in the meaning of Article 3 of the 1980 Hague Convention).

[20] The parental rights of [M] have been neither restricted nor divested, she had the rights of custody in the meaning of the Art.3 of the [Convention] and a full range of parental rights in the meaning of Article 61, 63, 64... Therefore, her rights were equal to [F]’s rights.”

“Parents have equal rights and responsibilities in respect of their children, subject to Article 61, раrаgrарh 1, of the Family Code. They have the right and duty to bring up their children and саrе for their health and physical, mental, spiritual, and moral development (Article 63, paragraph l, of the Family Code).

“… the Hague 1980 Convention is … part of Russian law … the return of children abducted from Russia is to be made in accordance with the rules applicable in jurisdiction to which the child was removed from Russia.  But these are just procedural rules.  The grounds for return (substantive rules) are provided for by the Hague 1980 Convention itself.

According to the migration rules, a child can leave Russia with any of the parents… But this does not mean that the mere child’s departure from the country without problems on the border proves that there were no violations of the Hague 1980 Convention.”

 “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.” (Art.16(3)).

i)                    Article 66 of the Russian Family Code (discussed in [56] above) is clear that the mother (as the parent living separately from the child) has the right to participate in K’s upbringing and solution of the issues of receiving education;

ii)                  The unilateral removal of K did not break any migration law, as at the time of the father’s departure, the mother had not applied for a travel ban;

Article 13(b): grave risk of physical or psychological harm, or otherwise an intolerable situation.

“Although ‘grave’ characterises the risk rather than the harm, there is in ordinary language a link between the two. Thus a relatively low risk of death or really serious injury might properly be qualified as ‘grave’ while a higher level of risk might be required for other less serious forms of harm.”

It is also the case (In re E at [35]) that I must consider:

“… the situation as it would be if the child were to be returned forthwith to her home country. As has often been pointed out, this is not necessarily the same as being returned to the person, institution or other body who has requested her return, although of course it may be so if that person has the right so to demand. More importantly, the situation which the child will face on return depends crucially on the protective measures which can be put in place to secure that the child will not be called upon to face an intolerable situation when she gets home”.

“As regards a return to a placement in care in the requesting State, where the requesting State has adequate procedures for protecting the child, and accepting that each case must turn on its own facts, it is unlikely that a parent will be able to successfully oppose a return on the basis that the child is being returned into temporary public care pending the courts making a substantive welfare determination (see Re M (Abduction: Intolerable Situation) [2000] 1 FLR 930 and  Re S (Abduction: Return to Care) [1999] 1 FLR 843). Once again however, each case will turn on its own facts.” (at [34])

“… accepting the imperative need to maintain fidelity to the aims of the Convention, it is important in cases where a parent refuses to return that, in determining whether a defence under Art 13(b) is made out, the primary focus of the court remains on the question of the risk of harm or intolerability to the child rather than the conduct of the abducting parent. Within this context, it is important again to bear in mind that Art 13(b) looks to the situation as it would be if the child were returned forthwith to his or her home country and that the situation which the child will face on return depends crucially on the protective measures which can be put in place to ensure that the child will not be called upon to face an intolerable situation when he or she gets home. The significance for the situation the child will face upon return of a parent’s refusal to return must in each case be evaluated in the context of the protective measures that can be put in place to mitigate the impact of the same”.

i)                    The father himself has acknowledged that the Russian police have decided “not to take any further action” in respect of the mother’s criminal complaints; the father himself repeats more than once in his statement that “those complaints have been investigated but not pursued”.  In any event, protective measures are offered (and counter-offered) which include undertakings from the mother not to pursue, or support, in any way, any future criminal proceedings against the father, for the alleged abduction of K, in the event that criminal proceedings are initiated by the Police in Russia; the mother is already subject to a suspended or paused sentence of imprisonment, so, it is submitted, she is hardly likely to seek to abuse the power of the authorities in the future;

ii)                  The mother’s offer of protective measures goes further; she has suggested that if the father does not return with K, she will not care for K and if required will arrange for K to be cared for by her own parents and will provide a nanny to assist them; 

iii)                The father’s apparent reluctance to travel back to Russia is confected.  He is posturing.  He has businesses, homes, and at least one younger child in Russia. If I decide that K should return the reality is that the father will accompany him.  The father is a loving father who will not abandon his son.  Moreover, he has a large home, businesses, an extended family, and multiple social and business contacts in Russia;

iv)                The father has the benefit of a section 8 Children Act 1989 ‘lives with’ order which will be recognised under the 1996 Hague Convention; the Russian court has already refused the mother’s application for an interim order; there is no risk of K being summarily removed from the father under Russian court order;

v)                  It is quite apparent that the father fully contemplated the possibility of returning to Russia in 2019; he kept K’s place at the Russian school open for a period of time, which is inconsistent with a case based on ‘intolerability’ now;

vi)                That K and L will be separated if K returns to Russia is not a strong point; DJ Gibson made welfare determinations in 2018 predicated on the basis that K would be living in Russia while L was educated in England; even though the father now maintains that “[K] was upset that he could not come to London for [L]’s exeat weekends,” this hardly creates an intolerable situation; the siblings are seven years apart in age “and have completely different interests” (according to the mother);

vii)              The Russian court is seised of the proceedings, and is patently not dealing with the father unfairly; the court has already rejected the mother’s case for interim residence of K;

viii)            The options for K are reasonable if the father does not return with K: (i) he could go to live with his maternal grandmother with whom he was close and was said to have a loving relationship; (ii) he could live in his father’s dacha with his paternal relatives; or (iii) he could live with his mother.  As to (iii) even though K has not seen his mother for some time, she was his primary carer until April 2018, and in spite of her conduct, DJ Gibson had nonetheless ordered that she and K should have extensive contact.

“[K] requires safe, committed and responsive parenting. From [K]’s description, his mother did not provide this and past assessments indicate the same. It will be for the court to assess whether a return to Russia would constitute a grave risk of harm to him or whether robust undertakings could the protection he requires. However, given that [K] has not seen his mother for over two years, the instability he has experienced in his care arrangements and his expressed views about his mother, it would be difficult for him to move directly to his mother’s care if this court orders his return. It would be advisable that he initially stayed with another family member while a welfare assessment of him and his mother is undertaken.” (emphasis by underlining added).

K’s views: do they amount to an objection?

“At almost nine, [K] is poised for major transition as he stands on the cusp of adolescence. Children of his age are becoming much more independent and able to handle certain responsibilities with minimal adult supervision. He was able to engage in a lengthy discussion with me, in challenging circumstances and was able to maintain a good level of communication, which demonstrated a degree of maturity. I would therefore assess [K]’s maturity to be commensurate with his chronological age and as such he is approaching an age when his views will carry some weight but are not determinative”.

i)                    Russian remains K’s first language, although he is fluent in English;

ii)                  That K knows that his mother lives in Russia, but he “does not want to see her”.  “He said that he does not like his mother then said “I do like her, but she is very mean. She doesn’t give me food. I don’t remember what she looks like”. He said he has no photographs of her”. He said that “he did not want to speak” to his mother … “he does not want her to record him”; “he could remember something very bad about his mother… he was taking pictures of his dad and she told him off. He thought this happened in the zoo and in a circus”; “I don’t want to go back there. She is mean” (emphasis by underlining added); Ms Demery added “He said that he hangs up when she calls him as all she says is, “I love you, I love you a billion times. That is only thing she says.””;

iii)                “In discussing Russia, [K] said that he did not like living there. He was in Year 1 at school and it was ‘pretty boring’.  He had to write everything perfectly. He said, “I decided to leave”.  If he went back to Russia, he would have to start the school year again and he would be bored”;

iv)                He “misses his maternal grandmother the most”, and he cannot remember when he last saw her, but it was a long time ago; he does not speak with her “there is a poor connection, adding that his father does not have her number”.   He described her as “a good member of our family”.  He would not want to go to Russia to see her; he said he does not want to speak to her, because “[K] said that his mother would know he was there. He said she would know because she paid £10,000 for his father to go to prison.  I asked how he knew this, and he said he read it on the internet. He added that he was very shocked.” He also recalled his paternal grandparents in Russia “whom he likes”;

v)                  That, in relation to returning to Russia, K told her: “that he does not really like Russia. The fun parks and circuses are OK.  He again returned to the statement he made earlier that his mother would know if he were in Russia.  He said that neither his father nor his sister wants to see his mother either. He told me that his mother tortured his sister.  I asked what he meant.  He said that she was very mean to her.”

vi)                “…his father was kind and he spent a lot of money on a tent for their garden”;

vii)              “He is aware that his father would not return to Russia with him.  Irrespective of this, he does not want to return”.

viii)            In a message for me, K said: “Dear Judge, I just want to live with my dad in London.  I don’t want to see my mum.”

“[K] has expressed a strong wish to remain in the United Kingdom with his father. He has nothing positive to say about his life in Russia, or sadly and more importantly about his mother. He seems to view his mother as all powerful who would know if he visited Russia”. 

Adding materially

“It [is] apparent that his father has inappropriately shared adult information with [K] and this may have influenced his views about his mother.”

And

“It is concerning that [K] has been exposed to the parental conflict in such a way that post separation he has been unable to have a positive relationship with the parent with whom he is not living. I found it surprising that after living with his mother for the first six years of his life, as his primary care giver, he could not find anything positive to say about her.    [K] is also being raised in a home where both his father and his sister hold negative views about [the mother] and where there is no counterbalance”.

i)                    That K “has attained an age and degree of maturity at which it is appropriate to take account of [his] views”; this was in fact conceded by the mother;

ii)                  That K would clearly like to remain living with his father; he does not want to live with his mother, or indeed even see her; were that the issue for consideration, which it isn’t, I would say that his view on that issue would certainly amount to an ‘objection’;

iii)                When interviewed in April 2020, he was enjoying living in England;

iv)                I do not accept Ms Demery’s assessment that K “… has nothing positive to say about his life in Russia”, as he was able to reflect on some positive relationships which he enjoys with extended family members there.  He nonetheless told Ms Demery that irrespective of his father’s position, “he does not want to return” to Russia (see [86](vii) above).  This is accompanied by some generally negative views about his previous life, and schooling in Russia;

Discretion

i)                    “[K] wasn’t really happy” in his school in Russia “because he just learnt letters; he said that he made friends”; he “felt good about moving to the UK”;

ii)                  K wants “to stay with his father because he knows that he cares about him and looks after him … he has a nice and happy life with his father… he wants to live with his father in England because he cares about him… although he was living in Russia for a short time, he feels happier to be back in England now”.  It was said that he is happy at his current school in London and likes his friends;

iii)                K did not want to see his mother “because she was in prison”;

iv)                On her assessment, K (like his sister) is “very clear” that does not want to live in Russia nor to live with their mother.

Mr Turner emphasised Ms King’s conclusion at sub-para.(iv) above.  I am satisfied that Ms King has faithfully reported L’s clear view that she does not want to live in Russia “as it presents the opposite of her political beliefs… [and] feels very frightened to go anywhere close to Russia because of what her mother is capable of doing”. However, on the same analysis of the report, I find no reference to K having expressed a similar view, let alone ‘clearly’.  The closest one comes to his view on living in, or returning to, Russia in this report are the comments which I have summarised in (ii) above.  

i)                    in part in his antipathy towards his school/Gymnasium which he regarded as ‘boring’ (per Cafcass: “[i]f he went back to Russia, he would have to start the school year again and he would be bored”),

and

ii)                  in part in his fear that this will bring him into direct contact with his mother. 

In neither report is his antipathy towards Russia particularly powerfully or cogently expressed, and I do not regard his objection to return as anything like adamant; frankly, it is not in my judgment a strong objection.

Conclusion

Stay or suspension of the order

Schedule.

Judgment [11 June] on the Case Management Issues.

Variation/discharge of the requirement on the mother to produce documents relevant to her criminal appeal in Russia

i)                    The judgment of the court giving the reasons for the terms of the sentence of the mother: 5 September 2018;

ii)                  The judgment of the court allowing the appeal in part: 21 August 2019.

[17] The applicant shall, by no later than 6pm on 4 June 2020, file, and serve on the respondent’s solicitors, a copy of the following information/documents:

a. any written submissions or grounds that were deployed on her behalf for the purposes of her criminal appeal in Russia;  

b. a copy, or transcript, of the judgment and/or decision of the appeal court in Russia in respect of those proceedings; and

c. ….

“[18] Subject to further consideration and any further directions that may be given at the hearing on 10 June 2020, no copy of any document served pursuant to paragraph 17(a) and/or 17(b) above, or any translation of any such document, shall be provided by the respondent’s English lawyers (i.e. his solicitors and counsel in these proceedings) to the respondent himself, or to his Russian Lawyer or any third party. The contents of any such documents may be discussed with, but not shown to (in whole or in part) the respondent and his Russian lawyer by his English lawyers.  Further, no copies of those documents or any translations thereof shall be included in the general court bundle for the hearing commencing on 10 June 2020, or the wording thereof quoted in any written submissions, but in the event that either party wishes to refer to such material at the final hearing it shall be provided to the court in a separate clip of material that is not provided to the respondent, or to his Russian lawyer or any third party without permission from the court.” 

“I [Ms Zhuravleva] am currently diagnosed with COVID-19, viral pneumonia, I am undergoing treatment, I am self-isolated.  All documents of my clients are kept in the office, as they are legally protected secrets. I currently do not have access thereto, so I cannot provide the documents you request before my recovery.

However I would like to draw your attention to the fact that all of the arguments of my cassation appeal are fully contained in the cassation decision dated 21 August 2019, as the court considered them when making its decision; in accordance with Article 401.14 of the Criminal Procedural Law of the Russian Federation, the cassation decision should contain all the arguments of the complaining party.”

Leave to adduce a second expert report on Russian law and specifically on the issue of Article 3 / Article 5(a):‘breach of rights of custody’

“(ii) As at the date of that removal of the subject child from Russia the applicant mother did not have rights of custody in respect of that child;”

“In the alternative to (ii), the applicant mother was not exercising any rights of custody in respect of the subject child and nor would she have been exercising any such rights but for the removal”

i)                    Neither he nor his solicitor had given the issue of disclosure of documents from the proceedings “much thought at the time”, but in fact the disclosure of the SJE report, and the order of DJ Gibson was permitted under section 12 Administration of Justice Act 1960, when read with rule 12.73(a)(iii) and rule 12.75 FPR 2010; it was open to him to obtain his own advice;

ii)                  Although the SJE had been used in the earlier (2018) proceedings, the father had not agreed the identity of the SJE for this exercise; she had been imposed by the court;

iii)                The application or interpretation of foreign law was not a science always or necessarily yielding clear cut or simple answers; it was an issue on which reasonable disparity of view could be expected, and in this respect, the court should be more tolerant of the need to receive the view of a second expert;

iv)                Although these proceedings are summary, they still need to be conducted “justly” (rule 1.1(1) FPR 2010) and “fairly” (rule 1.1(2)(a) FPR 2010);

i)                    Section 13 of the Children and Families Act 2014 is clear both in spirit and letter in controlling expert evidence; it should be firmly applied in excluding this additional evidence;

ii)                  The father did not raise the issue of rights of custody at the first case management hearing on 26 March when the issue of expert evidence should have been raised; the issue had been raised for the first time only when he filed his Answer (7 April 2020), and no effort had been made to secure expert opinion on the issue until the eve of the PTR;

i)                    The issue of whether the father breached the mother’s ‘rights of custody’ is central to the application.  It is certainly of sufficient importance to my determination of the application that I would be slow to shut out ostensibly credible evidence relating to it;

ii)                  I was satisfied from what I had heard that Ms Pavlova possesses the relevant qualifications to produce a reliable report;

iii)                While accepting that section 13 Children and Families Act 2014 should be applied strictly to control expert evidence, the discretion afforded to the court - in line with the factors listed in section 13(7) - is still broad;

iv)                There was time to obtain the views of the SJE on the report of Ms Pavlova before the case was argued.