English court refuses to recognise Russian residence order

It’s a point that I’m sure I’ve made here before: family law is inextricably linked with human affairs, right up to the level of major national and international events. In recent years, for example, we have seen the family courts in this country get to grips with the problem of children being embroiled in international terrorism.

In the recent case F v M the life of the child concerned was profoundly affected by the topical issue of the machinations of Russian politics, in particular the struggle between those in power in Russia and their critics. As we will see, that struggle has spilt over to this country in more ways than the alleged poisoning of a Russian dissident.

The facts in F v M were that the child’s parents, who were both Russian, were married in 2006 and the child was born in 2007. The parents separated in 2009, and were subsequently divorced.

The child remained living with her mother, as she does to this day.

In 2011 the mother began a relationship with another man, who is a “prominent critic of the Russian Government and President Putin in particular”, and a leading campaigner against what he says is ‘widespread corruption’ in Russia. The judgment doesn’t give us details, but it appears that the man was staying in the UK, presumably to avoid being detained by the authorities in Russia.

Whatever, in April 2014 the mother and the child travelled to London to meet him, and the following month the mother gave birth to a child by him.

Shortly after this, the man received a summons from the Investigative Committee of Moscow, accusing him and other activists of embezzling funds. It is the man’s case that the accusations against him are politically motivated and without any merit. The mother subsequently also received a summons from the Committee, and she, too, says that the allegations made against her were politically motivated and without foundation. In March 2015 the man was granted asylum in this country, as was the mother, in December last year. As Mr Justice Cohen said in the judgment, it is obvious that if the mother or the man set foot in Russia they would be likely to be arrested and imprisoned.

Meanwhile, proceedings were taking place regarding the child. In 2014 the father applied to the English court for her summary return to Russia. The return was refused, essentially because it would likely mean that the child would be separated from her mother, with whom she had lived all of her life. The father also took proceedings in the Russian courts, and these culminated in a residence order being granted in his favour, in September 2016.

The father applied to have the residence order registered by the English court, so that it could be enforced over here. The English court refused to register the order, as the Russian court had not sought the views of the child. The father appealed against the refusal, and that appeal was what Mr Justice Cohen had to decide.

Without going into the technicalities, Mr Justice Cohen found:

1. That the child had not been provided with an opportunity to be heard, in violation of fundamental principles of procedure of England and Wales.
2. That whilst there were reasons in favour of the child returning to Russia (the general rule that foreign orders should be recognised, the fact that the father resides in Russia, the fact that the removal was wrongful, etc.), the reasons against her returning were ‘overwhelming’.
3. That it would be wrong for him in the circumstances to grant recognition of the order.

Accordingly, despite the fact that the father had done nothing wrong and that, to his great credit, he was travelling to this country regularly to see his daughter, the appeal was dismissed.
You can read the full judgment here.