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Convention of October 25, 1980 on the Civil Aspects of International Child Abduction

ST. PETERSBURG CITY COURT

Reg. №: 33-2893/2016 Judge: Inna Lavrinenkova

APPELLATE DECISION

St. Petersburg

February 3rd, 2016

The Judicial Division for Civil Cases of the St. Petersburg City Court consisting of:

Presiding Judge Yulia Aleksandrova

Judges Elena Zarochintseva, Zlata Ptohova

with the participation of Public Prosecutor Tatyana Spasskova

in the presence of Clerk Alex Krasilnikov

having considered in open court proceedings an appeal by Irina K. from the judgment of Dzerzhinsky District Court of St. Petersburg dated December 2, 2015 in civil case № 2-282/15 under the claim of Vladimir U. against Irina K. for return of the child to the state of habitual residence based on the international treaty, having heard a report of Judge Yulia Aleksandrova, an explanation of the respondent, its representative - Karina Duvall acting by virtue of the power of attorney dated January 17, 2016 valid for three years and warrant № 664038 dated February 3, 2016, an explanation of the claimant, his representative acting by virtue of the power of attorney dated April 2, 2015 and warrant № 27 dated August 1, 2015, the conclusion of the public prosecutor, Judicial Division for Civil Cases of the St. Petersburg City Court

HAS ESTABLISHED THAT:

Vladimir U. filed a claim to Dzerzhinsky District Court of St. Petersburg against Irina K. for return of the child to the state of habitual residence based on the international treaty.

In the justification of the declared claims the claimant claimed that a marriage between him and the respondent was registered on October 7, 2009 in the magistrate of Helsinki, Finland, after which Irina K. moved to Finland where the claimant worked for Nokia Corporation. Currently the claimant works for Microsoft Mobile Oy as the senior programming engineer of IT Department. The claimant has been living in Finland for more than 14 years, he owns a three-room apartment with the area of 75 sq.m. The parties resided in the claimant’s apartment at Satulakuja lane 4 Е 51 01200 Vantaa, Finland.

The daughter of the claimant and the respondent Natasha was born on December 24, 2012 in Vantaa, Finland.

The marriage between the parties was dissolved by the decision of the District Court of Vantaa, Finland, dated April 11, 2014.

Shared custody was established by the decision of the District Court of Vantaa, Finland, dated December 23, 2014. The Court ruled that Natasha shall reside with her father at his place of residence in Finland.

From the moment of her birth Natasha had been living together with her parents in Finland; she attended Merivesi (Sea water) kindergarten in Vantaa, Finland, from November 10, 2014 to January 21, 2015.

In February 2015, Irina K. crossed the border of Finland together with the child without the consent of the claimant in infringement of the judgment of the District Court of Vantaa, Finland, thus having deprived the claimant of a possibility to communicate with his daughter, participate in her education and development, and having broken his custody rights protected by the law.

Referring to the stated circumstances, and specifying that according to the Hague Convention on the Civil Aspects of International Child Abduction of October 25, 1980 (hereinafter referred to the Convention) that became valid for the Russian Federation on October 1, 2011, the Russian Federation assumed an obligation to ensure the prompt return of children wrongfully removed to or retained in any Contracting State, having specified the declared claims and insisting on their satisfaction, Vladimir U. requested to oblige Irina K. to return minor Natasha, born on December 24, 2012, to the country of her habitual residence – Finland – based on the provisions of the international treaty of the Russian Federation - the Hague Convention on the Civil Aspects of International Child Abduction of 1980.

The claims of Vladimir U. were satisfied by decision of Dzerzhinsky District Court of St. Petersburg dated December 2, 2015.

The court ordered prompt return of minor Natasha, born on December 24, 2012, to the country of her habitual residence – Finland – based on the provisions of the international treaty of the Russian Federation - the Hague Convention on the Civil Aspects of International Child Abduction of 1980.

The court obliged Irina K., born on October 5, 1980, to transfer minor Natasha, born on December 24, 2012, and the documents of the child to her father Vladimir U., born on March 4, 1977, for the purpose of return to the territory of Finland within one day from the date the judgment becomes final.

The court obliged Irina K. not to interfere with the transfer and return of minor Natasha to the place of her permanent residence in Finland.

The court specified that Irina K. can avoid enforcement of the judgment by returning Natasha, born on December 24, 2012, to Finland.

In the petition of appeal and supplements thereto Irina K. requested to cancel the judgment including as she was of the opinion that the judgment was unlawful and groundless and requested to dismiss Vladimir U. claims, claiming that the first-instance court failed to take into account the following essential circumstances relevant to the case: that Natasha did not have a valid permit to stay in Finland at the moment of entrance of the Russian Federation; that the migration authorities refused to issue a permit to stay in Finland to Natasha; that the health of Natasha deteriorated during the period of residing with her father, which according to the respondent testifies that the claimant did not pay proper attention to the state of health of his minor daughter; that moving of Natasha to the Russian Federation was due to the deterioration of the state of her health; that Natasha’s place of residence in the territory of Finland was repeatedly changed; that the child resided in the territory of Norway for a few months; that both parents are citizens of the Russian Federation.

The respondent and her representative Karina Duvall acting by virtue of the power of attorney and the warrant, were present at the court session and affirmed the statements contained in the petition of appeal and supplements thereto and insisted on satisfaction of the claims.

The claimant, his representative acting by virtue of the power of attorney and the warrant, were present at the court session and objected to satisfaction of the petition of appeal and requested to uphold the appealed judgment of the first-instance court.

The third parties were properly informed of the date, time and place of hearing (case file sheets 92-95, volume 4) but failed to be present at the court session and neither informed the court about reasons of their absence, nor requested hearing of the appeal in their absence and in the absence of their representatives, therefore the judicial board considered it possible to try the case in their absence based on clauses 167 and 327 of the Code of Civil Procedures of the Russian Federation.

The judicial board came to the following conclusions after having studied the case materials, having listened to explanations of the parties, their representatives, having heard the conclusion of the public prosecutor, who was of the opinion that the appealed judgment of the first-instance court shall be upheld and the petition of shall be rejected, having discussed the facts and statements contained in the petition of appeal and supplements thereto.

The Convention was adopted at the Fourteenth session of the Hague Conference on Private International Law.

According to article 38 of the Convention, the states that are not the members of the Fourteenth session of the Conference have the right to join the Convention.

In particular, the Russian Federation joined the Convention in accordance with Federal Law N 102-ФЗ dated May 31, 2011 "On Joining of the Russian Federation to the Hague Convention on the Civil Aspects of International Child Abduction".

The convention became valid for the Russian Federation on October 1, 2011, i.e. on the first day of the third calendar month upon deposition of the joining document (article 38 of the Convention).

According to article 244.12 of the Code of Civil Procedures of the Russian Federation, all cases initiated based on claims for return of children or for exercise of access rights based on the international treaty of the Russian Federation shall be tried and adjudicated according to the general litigation rules taking into account the specific features established by the international agreement of the Russian Federation and this chapter.

The subjects of the Convention are children under 16 years of age residing in the contracting states, natural persons or legal entities having the right of custody of the children, and the persons who wrongfully removed or retained the children.

The first-instance court established that the parties did not contest the fact that the marriage between Vladimir U. and Irina K. was registered on October 7, 2009 in the magistrate of Helsinki, Finland.

Both parties are citizens of the Russian Federation. They do not have the nationality of any other country.

Vladimir U. is registered at Chernigolovka, Moscow Region; Irina K. is registered at St. Petersburg.

Vladimir U. resides in the territory of Finland by virtue of a residence permit, Irina K. had a temporary permit that expired in the summer of 2015.

The daughter of the claimant and the respondent Natasha was born on December 24, 2012 in Vantaa, Finland.

The marriage between the parties was dissolved by the decision of the District Court of Vantaa, Finland, dated April 11, 2014.

Shared custody was established by the decision of the District Court of Vantaa, Finland, dated December 23, 2014. The Court ruled that Natasha shall reside with her father at his place of residence in Finland.

As indicated above, the claimant specified that in February 2015 Irina K. crossed the border of Finland together with the child without the consent of the claimant in infringement of the judgment of the District Court of Vantaa, Finland, thus having deprived the claimant of a possibility to communicate with his daughter, participate in her education and development, and having broken his custody rights protected by the law.

While settling the dispute and satisfying claim for return of the child to the state of habitual residence based on the international treaty, the first-instance court, being guided by the main principles of the Hague Convention on the Civil Aspects of International Child Abduction of October 25, 1980 that provide for the return of the child wrongfully removed from the state of habitual residence, came to the conclusion (based on the established circumstances of the case) that the state of habitual residence of minor Natasha was Finland, and there were legal grounds for returning of the child to Finland.

The judicial board considers the arguments contained in Karina Duvall’s of appeal thereto worth considering and does not find it possible to uphold the judgment of Dzerzhinsky District Court of St. Petersburg as it is not in line with the circumstances of the case; the first-instance court was wrong in establishing the circumstances important for the case; the circumstances established by the first-instance court as important for the case were not proved.

According to the preamble of the Convention, the Convention is intended to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.

According to Article 3 of the Convention, the removal or the retention of a child is to be considered wrongful where a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The Convention’s main objective is the return of wrongfully removed children to the state of their habitual residence, in this connection in order to recognize the retention wrongful for the purposes of Article 3 of the Convention and to settle the question on return of the child, it is necessary to establish which state is the child’s habitual residence.

The state of habitual residence of the child is a matter of fact that shall be determined taking into account all circumstances of the case.

The most important criterion for the purposes of determination of the state of habitual residence is the degree of integration of the child in the social and family environment. Besides, it is necessary to take into consideration the reason for moving, duration of residing of the child in a certain country, attendance of school or kindergarten by the child.

In making the decision to satisfy claim, the first-instance court took into account the decision of the District Court of Vantaa, Finland, dated December 23, 2014 that granted shared custody of Natasha to both parents, and ruled that Natasha shall reside with her father at his place of residence in Finland.

At the same time, the judicial board finds it necessary to specify that the mentioned decision of the District Court of Vantaa was not final at the moment of removal of the child from Finland to the Russian Federation Irina K. in February 2015; Irina’s petition of appeal was rejected by the Court of Appeal of Helsinki on November 20, 2015 (case file sheets 129-136, volume 3).

Besides, the mentioned decision does not mention the exact place of residence of the child.

As mentioned above, one of the criteria allowing to establish wrongfulness of actions of the party who have moved the child from the state of its habitual residence to the territory of another state is the moving of the child in infringement of custody rights.

In this case the moving of Natasha by Irina K. from Finland to the Russian Federation cannot be recognized wrongful taking into account the requirements of Article 3 of the Convention and the absence of a final judgment establishing the place of residence of the child.

According to judicial board, the circumstances of moving of the child, who is a citizen of the Russian Federation, to the Russian Federation do not violate the claimant’s custody rights, i.e. his parental rights.

The judicial board draws attention to the lack of a statutory prohibition to move the child, who is a citizen of the Russian Federation, to the Russian Federation.

In disagreeing with the conclusions of the first-instance court, the judicial board also considered such essential to the case circumstances as the lack of a permit allowing Natasha to stay in Finland both at the moment of moving of the child by the respondent from territory of Finland and at the present time.

The specified circumstances are proved by the case materials and are not challenged by the parties.

In view of the fact that since February 2015 Natasha has been living in St. Petersburg at the place of permanent registration of Irina K. where, according to the conclusion of the Head of Local Administration of Municipal District № 65, adequate accommodation and development conditions were created for the child (case file sheet 235, volume 3); upon departure to Finland the parties did not deregister themselves in the Russian Federation; taking into account the child’s age at the moment of removal from Finland - 2 years 1.5 months, out of which (and this fact is not challenged by the claimant and is proved by the case materials) Natasha lived in Norway for a few months (where she was removed by the claimant without the respondent’s consent and where she was living (as evidenced by the decision of the District Court dated December 23, 2014) from July 2013 to October 2013 (case file sheet 38, volume 1), whereas Vladimir U. lived in Finland in the specified period); lack of knowledge of the Finnish language by Natasha; attending various medical and children's development institutions in the Russian Federation by Natasha (case file sheets 16-31, volume 3), the judicial board cannot uphold the conclusion of the first-instance court that the state of habitual residence of Natasha is Finland. Natasha has been living in St. Petersburg since February 2015 and has reached a considerable degree of integration into the social and family environment in the Russian Federation, for which reason retention of the child cannot be recognized wrongful according to Article 3 of the Convention.

The fact that Natasha attended the preschool institution in Finland for a short period of time - from November 10, 2014 to January 21, 2015 - neither evidences the integration of the child into the social environment, nor makes it possible to recognize Finland as the child’s habitual residence.

Moreover, according to Article 13 of the Convention the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

According to paragraph 1 of Article 63 of the Family Code of the Russian Federation, parents bear responsibility for education and development of their children. They are obliged to take care of their health, physical, mental, spiritual and moral development.

Paragraph 1 of Article 65 of the Family Code of the Russian Federation provides that parental rights cannot be exercised in conflict with the interests of children. Serving the interests of children should be main objective of their parents. When exercising parental rights, parents have no right to harm children physically and mentally or prejudice their moral development.

From the above it follows that the Family Code of the Russian Federation also provides for the principle of serving the best interests of children and bans causing of physical or psychological harm to children.

According to the opinion of the children’s rights ombudsman, both parents have equal rights of custody of the child, the claimant’s rights are not prejudiced in the territory of the Russian Federation, return of Natasha from the mother to the father for residing in Finland can cause physical harm to the child taking into account a number of diseases, from which Natasha suffers (case file sheet 168, volume 3).

The presence of diseases is proved by the medical documents contained in the case materials (case file sheets 16-18, 21-29, 56-58, volume 3).

Thus, the exceptions from the basic principle of immediate return of the child to the state, from which the child was removed, described in Article 13 of the Convention also allow to come to the conclusion that there are no legal grounds for satisfaction of the declared claims.

Based on the above and Article 328 of the Code of Civil Procedures of the Russian Federation, the Judicial Division for Civil Cases of the St. Petersburg City Court HAS RULED AS FOLLOWS:

the judgment of Dzerzhinsky District Court of St. Petersburg dated December 2, 2015 shall be overruled.

Vladimir’s claim against Irina K. for return of the child to the state of habitual residence based on the international treaty shall be denied.

Presiding Judge: /signature/

Judges: /signatures/

The Judicial Division for Civil Cases of the St. Petersburg City Court
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