The Appellate Court, having heard a report of Judge, testimony of parties, legal opinion of Karina Duvall, the conclusion of the public prosecutor, Appellate Court has established that Plaintiff filed a claim for return of the child to the state of habitual residence based on the international treaty.
The parties were married from 2009 till 2014. Their daughter was born in Finland on 2012. The Finland court decided that daughter shall reside with her father in Finland. In February 2015, Defendant crossed the border of Finland together with the child without parental consent.
Referring to the stated circumstances, and specifying that according to the Convention on the Civil Aspects of International Child Abduction of 1980, the Russia assumed an obligation to ensure the prompt return of children wrongfully removed, having specified the declared claims and insisting on their satisfaction, Plaintiff requested to return child to Finland.
The claim of Plaintiff was satisfied by the first-instance court order.
Karina Duvall in her appeal requested to vacate first-instance court order, claiming that first-instance court failed to take into account essential circumstances: that daughter didn’t have residential permit in Finland; that the immigration authorities refused to update her immigration status; that child’s residence in Finland was repeatedly changed; that the child resided in Norway for a while; that both parents are Russian citizens.
Attorney for the Mother, Karina Duvall, affirmed her appeal. The Plaintiff objected to appeal.
Appellate Court found that both parties are Russian citizens and registered in Russia. Plaintiff has residential permit in Finland, Defendant had a temporary permit. Shared custody was established on 2014. The Finland court decided that daughter shall reside with father in Finland.
In 2015 the Mother and child crossed the border.
The Appellate Court considers the arguments of Karina Duvall thereto worth considering and does not find it possible to uphold the first-instance court order as it is not in line with the circumstances of the case; the order was wrong.
The Convention is intended to protect children from the harmful effects and to establish procedures to ensure their prompt return.
The most important criterion for these purposes is the degree of integration of the child in the social and family environment. Besides, it is necessary to understand the reason for moving.
The first-instance court took into account shared custody, and ruled that daughter shall reside with father in Finland.
However, the Appellate Court finds it necessary to specify that the decision of the Finland Court was not final.
One of the criteria allowing establishing wrongfulness of actions is the moving of the child in infringement of custody rights.
According to Appellate Court, the moving of Russian child to the Russia doesn’t violate the custody rights.
The Appellate Court draws attention to the lack of a statutory prohibition to move Russian child to the Russia.
In disagreeing with the first-instance court, the Appellate Court also considered lack of residential permit in Finland.
The child lives in Russia since 2015 and reached a considerable degree of integration into the social and family environment.
According to Art 63 p 1, 65 p 1 of the Russian Family Code, parents bear responsibility for their children. They are obliged to take care of their health, physical, mental, spiritual and moral development. The parental rights cannot be exercised in conflict with the children interests.
Both parents have equal custody rights, the Plaintiff’s rights are not prejudiced in Russia, return of daughter from the mother to the father for residing in Finland can cause physical harm to the child.
Thus, there are no legal grounds for satisfaction of the claim.
Based on the above and Art 328 of the Russian CPC, the Appellate Court has ruled as follows:
The first-instance order on December 2, 2015 shall be overruled.
The claim for return of the child to Finland is denied.