Mother wins appeal against return of daughter to Russia

Family Law|September 17th 2015

The mother of a seven year old girl has won an appeal against her immediate return to Russia.

The girl in question, referred to as ‘A’, was born in the United Kingdom after her Russian parents travelled here for medical treatment. They subsequently returned to Russia, where their relationship broke down.

In 2012, A’s mother began a new relationship with a man described as a ‘political activist’. She moved in with him, along with A, but the man, ‘Mr B’, was targeted by the Russian authorities because they were “not happy” with his activities. Following a number of incidents, his flat was raided and he fled to the UK not long afterwards. When criminal charges were filed against him in Russia, he claimed asylum in the UK.

A few days later, the mother also arrived in the UK with A. The mother was by that point pregnant with her new partner’s child. She initially planned to return to Moscow following the birth but did not take her return flight and remains in London, awaiting a decision on Mr B’s application for asylum. If this is granted, she and her children will be regarded as his dependents, as long as they remain in the same jurisdiction.

Prior to her departure from Russia, however, A’s father had been closely involved in her life. They visited each other regularly and he took part in decisions about her education, Lord Justice Ryder noted, “prior to her mother’s unilateral removal to this jurisdiction.”

After the mother was twice granted an order forbidding the father from removing A, the father applied to the English courts for the return of his daughter. This application was made under the inherent jurisdiction (legal authority) of the High Court, rather than the Hague Convention on the Civil Aspects of International Child Abduction. It came before Mrs Justice Hogg in September last year. She ordered that A be sent back to her father in Moscow.

The mother appealed, on the grounds that A’s own views and wishes had not been taken into consideration. In addition, she questioned the exclusion of evidence suggesting the possible impact on A of separation from her half-sibling.

The Court of Appeal accepted her arguments. The High Court was required to fully consider whether or not to hear the views of children involved in alleged abduction cases, said Lord Justice Ryder.

“The underlying concept is that the child must be afforded effective access to justice so that the State does not infringe that child’s article 6 and 8 ECHR rights.”

Article 6 of the European Convention on Human Rights sets out the right to a fair trial, while Article 8 governs the right to ‘private and family life’.

The father argued that it would be wrong to apply the principles of international legislation to applications made under the inherent authority of the High Court, but the Court was not convinced.

He also claimed that A was too young to participate in the hearing but that was not necessarily the case, the Court of Appeal ruled. Children of similar ages had taken part in other cases.

The case was sent back to the lower courts for a rehearing.

S (A Child) can be read here.

Author: Stowe Family Law

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