Parental kidnapping case in russian court
DECISION In the name of the Russian Federation
October 9, 2017 Moscow
Tverskoy District Court of Moscow, composed of the presiding judge Molitvina T.A. with the secretary Balayan Y. V. with the participation of the prosecutor Ponomarenko S.V., having examined in open court session a civil case on the claim of D. against S. on returning a child to the state of permanent residence,
The claimant filed a claim against the defendant in the framework of the Convention on civil and legal aspects of international abduction of children dated October 25, 1980 on the return of the minor child D., date of birth --, to his place of permanent residence in Romania: Bucharest, ---, pointing out that on November 15, 2016, the defendant took the child of the claimant out to Moscow by deceit where he has been keeping him isolated from his mother from that moment. After the illegal transfer of her son to Moscow, the claimant immediately appealed to the Ministry of Justice of Romania with a statement about the abduction of the child. This authority sent the claimant’s documents to the Ministry of Education and Science of the Russian Federation, which proposed conducting a mediation procedure to settle the case on the return of the child. Moreover, the claimant appealed to the Bucharest police with a statement about the illegal removal of the child abroad. The police handed over all the documents to the competent authority - the Ministry of Justice of Romania. The claimant came to Moscow in the period from January 14 to January 22, 2017, she managed to see her son in the presence of the defendant and only for a few minutes every day. The claimant did not succeed in reaching the agreement on her participation in the upbringing of her son and returning the child to Romania with the defendant peacefully, despite the discussion of such an agreement, thus, the defendant abuses parental rights and harms the child, violates the right of the minor child not to be separated from his mother. The claimant believes that her son was illegally moved and is being held by the defendant on the territory of the Russian Federation. The actions of the defendant harmed the child and violated the claimant’s parental rights.
The representative of the claimant Yarmush M.M. appeared in the court session and supported claims.
The defendant S., representatives of the defendant Bunik I.V., Milyukova M.A. appeared to the beginning of the court session and didn't object against the satisfaction of the claim. After the announced recess they didn’t come to the court session, they submitted a petition to postpone the court session, the court refused to satisfy it.
Resolving the issue on the possibility of consideration of the case in the absence of the defendant, the court, subject to the provisions of art. 167 of the Code of Civil Procedure of the Russian Federation, considers it possible to bring on the case at this turnout, in the absence of the defendant, who clearly abusing his procedural rights. The court takes into account that the defendant became aware of the consideration of the filed by D. claim no later than August 4, 2017, during that time the defendant had the opportunity to seek the help of an interpreter, as well as to submit properly executed evidence to substantiate his objections but he did not do it, stating repeatedly requests for postponement of court sessions, which indicates the abuse of his procedural rights.
The representative of the guardianship and custodianship body of the Administration of the municipal district Zamoskvorechye in Moscow did not appear in the court session, provided an opinion according to which the authorized body in the sphere of guardianship, custodianship and patronage believes that there are none of the grounds for satisfying the claim of D.
The court after hearing the explanations of the parties, the opinion of the guardianship and custodianship body, the conclusion of the prosecutor who considered the claims to be satisfied, examination of the written materials of the case comes to the following.
In accordance with part 1 and 2 of article 244.11 of the Code of Civil Procedure of the Russian Federation a statement on the return of the child illegally transferred to the Russian Federation or held in the Russian Federation or on the exercise of rights of access for such a child under the international agreement of the Russian Federation (hereinafter - the statement on the return of the child or the exercise of access rights) is filed to the court by the parent or another person who believes that the defendant has violated his guardianship rights or access rights or is filed to the court by the prosecutor.
The statement on the return of the child or the exercise of access rights is submitted to the Tverskoy District Court of Moscow when the child stays within the Central Federal District.
The court found that the claimant is a Romanian citizen D., was born on November 16, 1984 in Romania, resides in Bucharest, works as a customer service analyst at ---.
The defendant is an Italian citizen S., currently resides and works in Moscow as the financial director of ---.
The claimant and the defendant were in a close relationship for a short period, were not married, are the parents of the minor D., who was born on ---. The birthplace of the child is Bucharest, Romania, which is confirmed by the birth certificate.
The child lived with his mother since birth and is registered at the address: Bucharest, ---, as evidenced by certificates of residence and citizenship dated April 14, 2017, has citizenship of Romania and Italy.
From birth the child received medical services at the Universal Medical Center Regina Maria, as evidenced by a medical certificate dated April 7, 2017.
These circumstances are confirmed by the case materials and are not disputed by the parties.
It follows from the claimant’s explanation that one year after the birth of the child in September 2013, the claimant D. arrived with the child in Moscow to the defendant, where the latter works under a contract.
In February 2015, the claimant decided to return to Bucharest with her son.
From March 1, 2015, young D. attends a kindergarten in Bucharest, which is confirmed by a certificate.
The defendant S. initiated a civil case in the Court of Bucharest on the return of the illegally displaced child.
The court of first and appeal instances decided to deny S. in satisfaction of the statement on the return of the child to Moscow. At the same time, the courts established that the child’s mother returned the child home to Romania legally, that the child’s place of residence is in Bucharest, but not in Moscow, that the child’s father later did not object against the return of the son with the mother to Romania (these circumstances are confirmed by the civil case No. --- dated June 23, 2016 and the resolution on the civil case No. --- dated October 12, 2016).
On November 15, 2016 S. took the child D. out to Moscow.
After the transfer of D. to Moscow, the claimant appealed to the Ministry of Justice of Romania with a statement about the abduction of the child. This authority sent the claimant’s documents to the Ministry of Education and Science of the Russian Federation, which proposed conducting a mediation procedure to settle the case on the return of the child.
Moreover, the claimant appealed to the Bucharest police with a statement about the illegal removal of the child abroad. The police handed over all the documents to the competent authority - the Ministry of Justice of Romania.
From the objections of the defendant and the explanations of his representatives at the court session it follows that he currently lives with his son in Moscow at the address: ---, the child visits School he has a certain order of living and schedule of the day.
The issues of the illegal transfer of the child from the state of permanent residence, the illegal retention of the child outside the state of permanent residence are governed by the Convention on civil and legal aspects of international abduction of children dated October 25, 1980.
On July 28, 2011 the Russian Federation joined the said Convention, which entered into force for Russia on October 1, 2011.
Romania is also a party to the Convention, the Convention is valid for bilateral relations from June 1, 2013.
According to paragraph a), Article 3 of the Convention, the transfer or retention of a child is considered illegal if it is carried out in violation of the custody rights with which any person, institution or other organization were vested, jointly or individually, in accordance with the laws of the state in which the child resided before his transfer or retention.
The Convention on the abduction of children does not regulate the issues of the entitlement of parents or one of them by parental custody, as the substantive consideration of parental rights and the entitlement of guardian rights to one of them (or both of them) must take place in the competent authorities of that state on the territory of which the child had the usual place of residence before he was displaced (art. 16 and 19).
It was established at the court session that minor D. had permanently lived in Romania with his mother before being moved to the Russian Federation, had no other place of residence, there was no dispute about the child’s place of residence between the parents.
In accordance with Art. 46 of the Agreement between the Union of Soviet Socialist Republics and the Romanian People's Republic on the provision of legal assistance in civil, family and criminal matters (signed in Moscow on April 3, 1958) both Contracting Parties mutually recognize and execute on their territories entered into force decisions of judicial institutions on civil and family matters, as well as decisions of the guardianship and custodianship bodies in matters relating to their competence, made on the territory of the other Contracting Party on the legal relations arising after entering into force of this Agreement.
By the entered into legal force decision of the Bucharest court dated June 23, 2016, the decision of the Court of appeal of Bucharest dated October 12, 2016 it's established that on the basis of the submitted documents, interrogations of the parties and witnesses, the habitual residence of the minor child of the parties is in Romania, but not in Russia, according to S., in connection with that, the claim on the return of the child to the Russian Federation filed by S. to the Court of Bucharest under the Convention on civil and legal aspects of international child abduction dated October 25, 1980 was refused.
Since this decision of the Bucharest court is not a subject to enforcement on the territory of the Russian Federation, it does not require the additional judicial recognition on the territory of the Russian Federation.
Contrary to the provisions of the Convention, the defendant, without the consent of the claimant, made a decision to change the child’s usual place of residence, in connection with which he carried out the illegal transfer of the child from the state of residence. Currently, the defendant together with his son, despite the disagreement of the mother, continues to be on the territory of the Russian Federation, has no intention to return to Romania in the near future and therefore keeps the child out of the place of usual residence of the child.
In accordance with the Convention, the Russian Federation has undertaken to ensure the immediate return of children illegally transferred to any of the Contracting States or held in any of the Contracting States (art. 12 of the Convention).
According to art. 13 and 20 of the Convention, in particular, the judicial authority of the requested state is not obliged to order the return of the child in the following cases:
1) if it is proved that the person caring for the child did not actually exercise his guardianship rights at the time of the transfer or retention of the child or agreed to transfer or retain the child or subsequently did not express objections to those;
2) if it is proved that there is a serious risk that the return of the child would threaten to cause him physical or psychological harm or otherwise put him in unbearable conditions;
3) if the decision-making authority concludes that the child objects against returning and has already reached that age and degree of maturity at which his opinion should be taken into account;
4) if the return of the child is contrary to the fundamental principles of the requested State regarding the protection of human rights and fundamental freedoms.
The court does not agree with the conclusions of the guardianship and custodianship body contained in the conclusion that the transfer to Russia and the presence of a minor child in the Russian Federation is legal and there are no grounds for his return to the territory of Romania, since it is based only on the defendant’s explanations without receiving explanations of the claimant or her representative and without receiving any documents from them, contradicts the materials of the case and explanations of the parties.
The arguments of the defendant that the child does not wish to return to Romania in this case cannot be accepted by the court, since the subject of the present dispute is not the question of the child’s residence when the parents live apart, which should be settled in the country of the child’s usual residence, but the question of the child’s return to the country from which he was illegally exported.
The court also does not take into account the argument of the defendant that the child’s residence is the Russian Federation, since neither the child nor the child’s father does not have documents confirming the right of permanent residence in the Russian Federation, the minor D. is registered in the Russian Federation at the place of stay at the address: Moscow, Zemlyanoy Val ---, that is at the place of work of the defendant, which also testifies of his temporary stay on the territory of the Russian Federation.
Other grounds to refuse on the return of the child D. to the state of permanent residence are not established by the court.
Thus, the court, assessing the evidence submitted in the aggregate, concludes that the fact of the illegal transfer of the minor D. from Romania to the Russian Federation, the fact of the illegal retention of the child in the Russian Federation were confirmed in a court session, and therefore the claims were substantiated and subject to satisfaction.
Taking into account the provisions of art. 204 of the Code of Civil Procedure of the Russian Federation, as well as for the purpose of timely execution of a court decision, the court considers it possible to determine the order and deadline for the execution of this decision obliging S. within one day after the court decision enters into legal force to transfer the minor D., to his mother D. for his movement to the territory of Romania and also not to impede the transfer and movement of the minor Dario to his place of permanent residence on the territory of Romania.
Based on the above, guided by art. 194-199 of the Code of Civil Procedure of the Russian Federation, the court
To return the minor D., date of birth: ---, to his place of permanent residence in Romania: Bucharest, ---.
To oblige S. within one day from the moment the court decision comes into force to transfer the minor D., date of birth: ---, to his mother D. for movement to Romania.
To oblige S. not to impede the transfer and movement of the minor D. to his place of permanent residence in Romania.
The decision may be appealed to the Moscow City Court within 10 days from the date of its adoption in the final form through the Tverskoy District Court of Moscow