Mother allowed to move to Russia under the Hague Convention 1996

Children|January 23rd 2015

The mother of a two year-old boy has been allowed to move back to Russia against the wishes of the father.

I have warned of the risks of a transnational relationship breaking down on many occasions. The results can be heart-breaking for all concerned, and especially so if children are involved. In this case those risks are once again spelled out. If you enter into such a relationship you must do so with your eyes wide open, and you cannot blame anyone but yourself if it doesn’t work out. The court will only become involved if the parties ask it to, but if it does become involved and a judge makes an order, one party may end up with very little contact as the child grows up.

This winner-takes-all outcome does not find favour in many countries, where, a parent may be able to freely leave a country if they so wish, but not the child. This virtually ensures that both parents stay put, no matter the hardships (usually to the mother it has to be said, who will not leave her children).

Mr Justice Jackson ruled on a similar case to the one we are concerned with here last summer, in which a mother from New Zealand was permitted to take her child back home after her relationship with the British father ended. Other jurisdictions take an entirely different approach to such issues – in New Zealand itself, for example, I know of a number of ‘stuck Mums’ who have written to this blog, having been obliged by the courts in that country to remain there with their dual nationality children, despite wishing to move back to the UK. Their wishes and feelings and the impact upon the children are not a consideration in the decision. The approach of our courts has been subject to heavy criticism, particularly by father’s groups who consider it is more important for a child to have two parents in the same country, rather than two parents in different countries and as a result a complete imbalance in the relationship the child has with both of them.

In S v G, we see the operation of English law, with an entirely different approach and different outcome. The boy in question was born in May 2012. His mother is a Russian national from Moscow while his father is British and comes originally from Kent. She worked in furniture sales while he has been unemployed since spending time in prison in Sri Lanka, where he had been involved in an operation helping ethnic Tamils to leave the country. As a result of his time in prison, the father developed both post-traumatic stress disorder and depression.

The couple met while in holiday in Goa – the mother approached the father and asked to share his cannabis joint. They formed a relationship and were later married in Moscow, shortly before the birth of their son in the city. In June 2013, the mother was granted a spousal visa and moved to the UK to live with the father. Unfortunately their relationship broke down less than a year later, following an argument. Mother and son moved out of the father’s flat.

Shortly afterwards the father applied for and was granted a restraining order preventing the mother from taking their son out  the country, although she was later granted permission to take him on holiday, on her undertaking to return him. The father then applied for a child arrangements order specifying that the toddler should live with him. His estranged wife countered this with her own application, seeking permission to relocate back to Moscow, with the father visiting for contact with his son.

Sitting in the Family Division of the High Court in London, Mr Justice Jackson noted the evidence of a “very experienced” independent social worker. She assessed the family and concluded that the boy was “thriving” and comfortable with both his parents. She said:

“The parents have formed a warm attachment with him and both want to prioritise his needs. She saw very little difference in the quality of the parenting and the nature of the relationships.”

It would be in the boy’s best interests, the social worker believed, to remain in England and continue to enjoy a relationship with both his parents and the father’s extended family. The social worker believed that the toddler would be “disrupted”  by a move to Russia and that the mother’s family in that country were not as close or as available as the father’s family.

In considering the case, Mr Justice Jackson accepted that both parents were able to meet the boy’s current needs, but then went on to compare his impressions of the mother and father in order to try and assess which would be better able to meet his longer term needs.

The mother was, he concluded, “very much the more dynamic, energetic and insightful individual.” Outbursts of anger towards the father had been motivated, said the Judge, by “frustration at the father’s relative passivity, no doubt partly arising from his very difficult experiences in detention.”

The father, meanwhile, had spoken of being given a new sense of meaning in his life by the birth of his son, and how he was making renewed efforts to return to the world of employment. However, the judge doubted that he would make much progress with this and was likely to prefer staying at home as a full- or part-time parent.

The Judge considered the applicable legal principles, which, as per usual, include the welfare of the child being of paramount importance and the application of the welfare check list in Section 1(3) of the Children Act – these apply to all cases. But he also he referred to three cases, including the much-discussed case of Payne v Payne, which involved a mother’s wish to return to New Zealand, against the wishes of the father. He noted the views of Mr Justice Hedley in an earlier judgement, in which His Honour stressed the importance of assessing care arrangements for children as they stand and would continue without relocation, rather than thinking in terms of ‘primary’ and ‘secondary’ care.

His Lordship went on to set out factors “specific to an application for permission to relocate permanently, an application which has its own distinctive and far-reaching consequences”.

He listed these as follows:

“(1) To scrutinise the proposals of the applicant bearing in mind that in a going home case that may be a less arduous undertaking than if it is an entirely new venture.

(2) To scrutinise the motives of the applicant in making the application and, in particular, considering whether or not a significant motivation is to exclude the other parent from the life of the child.

(3) To scrutinise the motives of the left behind parent who objects, in particular to check that the reasons for objection are truly child-centred and are not simply part of an adult battle about rights.

(4) The court must scrutinise the impact of relocation upon the left behind parent and his or her extended family whilst of course recognising that relocation may bring benefits in terms of widening the network of extended family by including the proposed country of return.

(5) The court should scrutinise the impact on the applicant of the order being refused or on the respondent of the order being granted….”

His Lordship did not accept the opinion of the independently instructed social worker, believing that she not had properly considered the relative parenting abilities of the mother and father. He also believed taht she had been overly optimistic about the mother’s prospects in the UK.

Mr Justice Jackson concluded overall and having heard the parties, that it was in the boy’s best interests for the mother’s wish to return to Moscow to be granted. If she was made to stay, it would amount to converting “a short-term arrangement into a long-term compromise that would ultimately please no one”.

He continued:

“This outcome will be a blow to the father and his family. I hope that with time the father will come to see it as an opportunity to re-establish himself so that he can have significant influence and input into Daniel’s future from a positon of greater strength.”

One other,  important factor to note in this case is the enforcement of  arrangements which were made to facilitate contact between father and son. You might think that given the boy is in Russia, the mother could easily flout this court order.  However, Russia is in fact a signatory to treaty commonly known as the Hague Convention 1996 – not to be confused with the much quoted Hague Convention on Child Abduction, which was signed in 1980.

The full name of the 1996 treaty is The Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. It entered into force in this country in November 2012 and in the Russian Federation the following June.

It states that that the measures taken by the authorities of a ‘contracting’ [participating] state shall be recognised by the operation of law in all other contracting states (Article 23). In other words, if legal measures enforceable in one state require enforcement in another state, they shall, upon request by an interested party, be declared enforceable or registered for the purpose of enforcement in that other state, via a simple and rapid procedure (Article 26). Such measures shall be enforced in the latter state as if they had in fact been taken by the authorities of that state (Article 28). As such, the Russian authorities must ensure that the mother complies with the order and allows contact.

A small crumb of comfort to the father.

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