The 1980 Hague Convention in Russia: return of a child, jurisdiction and court procedure

Usually several conditions must be checked: the child is under 16; before the removal or retention the child had a habitual residence in one state; the second state is bound to the first by the 1980 Convention; the removal or retention breached another parent's or person's rights of custody; and those rights were actually being exercised, or would have been exercised, at the time of the removal.

The status of the relationship between the specific countries must be checked separately. The mere fact that both countries are mentioned in the Hague Conference system does not always mean that the 1980 Convention is in force between them in the required direction and on the required date.

A case under the 1980 Convention is not an ordinary dispute about with whom to leave the child.

A court in such a case usually should not re-decide the whole family conflict on the merits. It assesses an international-law and procedural question: whether the child must be returned to the state of habitual residence so that the competent court there can consider further questions of parental responsibility, residence and contact.

In Russia, cases on the return of a child or on the exercise of rights of access under an international treaty are heard under a special jurisdiction. The application is filed with one of eight specialized courts, and not with any court at the parent's place of residence.

For the Central Federal District, Article 244.11 of the Code of Civil Procedure designates the Tverskoy District Court of Moscow. For the other federal districts, the current version of the law and the territorial connection of the case must be checked separately.

The child's habitual residence often becomes the central question. It is not always the same as registration, citizenship or the last place of presence.

The court assesses the child's actual connection with a state: where the child lived, studied, received medical care and socialized, where the child's habitual environment was, and how stable that connection was.

The 1980 Convention provides for exceptions to return. They cannot be presented as simple ways to avoid returning the child: each exception requires evidence and depends on the specific circumstances.

In practice, the following may be analyzed: a grave risk to the child under Article 13(b), the child's settling in after a long period, the child's objection given their age and maturity, and consent to or subsequent acquiescence in the removal by the other parent.

Depending on the situation, the following may be used: documents on the child's residence, school and medical records, correspondence between the parents, court decisions or agreements, evidence of the exercise of parental rights, documents on the child's movement, and materials from the competent authorities.

This list is not universal. In each case the evidence strategy depends on the country, the deadlines, the facts of the movement, and the parties' procedural positions.

In cases of international movement of a child, the deadlines, the country of habitual residence, the status of the Convention between the states, and evidence of the child's actual connection with a specific jurisdiction are especially important.

An attorney in such cases helps determine whether the 1980 Convention applies, choose the competent court or another protective mechanism, gather evidence, prepare procedural documents, coordinate with foreign lawyers, and assess the risks.