Mother turns to Hague Convention to compel return of sons from Russia
MOSCOW, July 23 (RAPSI, Ingrid Burke) - An American mother living in England has turned to an international treaty that only recently entered into force in Russia in hopes of compelling the return of her young sons, who have been living with their father in Russia since they failed to return from what was meant to be a brief Christmas holiday, RAPSI has learned from the mother's London-based solicitor Carolina Marin Pedreno, a partner at law firm Dawson Cornwell.
The holiday debacle arose out of an ongoing custody battle in the courts of England and Wales, but a solution to the dispute could lie in the 1996 Hague Convention on the Protection of Children (Convention), which entered into force in Russia on June 1 of this year.
As explained by Marin Pedreno, the boys, Daniel and Jonathan, were both born in Switzerland before the family relocated to London in January 2011. Daniel holds a Russian passport and an expired US passport. Jonathan holds German, Russian, and American passports.
Two months following the family's move, in March 2011, the boys' mother Rachael Neustadt initiated the proceedings presently underway against her former husband Ilya Neustadt with an application for a non-molestation order, a court order prohibiting the use of violence and harassment.
According to Marin Pedreno, the order was sought due to Ms. Neustadt having been a victim of domestic violence. She was then accommodated with the children in a shelter.
Custody and visitation hearings remain underway in the Willesden County Court. Marin Pedreno explained that Ms. Neustadt had been granted sole residence of the children and that a hearing had been scheduled for January 13, 2013 to determine the progression of contact rights between the boys and Mr. Neustadt.
It had allegedly been agreed that the boys would visit their father in Russia for Christmas, and that they would then return to their mother's care on January 7, 2013.
Return tickets reflecting these details were purchased. The boys, however, did not return as planned. According to Marin Pedreno, "The wrongful retention of the children has been made in the middle of these proceedings; the father was legally represented and is currently in breach of orders made by the Courts of this jurisdiction."
Among other things, the Convention establishes a standard for the resolution of custody and visitation issues that occur when parents have split up and moved to different countries. An information sheet released by the Hague Conference on Private International Law (Hague Conference), the organization that developed the Convention, "The recognition and enforcement provisions avoid the need for re-litigating custody and contact issues and ensure that decisions taken by the authorities of the country where the child has his or her habitual residence enjoy primacy. The co-operation provisions provide for any necessary exchange of information and offer a structure through which, by mediation or other means, agreed solutions may be found."
Notably, Russia adopted a reservation to the Convention reserving the "exclusive jurisdiction of its authorities to take measures directed to the protection of property of a child situated on the territory of the Russian Federation," as well as "its right not to recognise any parental responsibility or measure in so far as it is incompatible with any measure taken by the authorities of the Russian Federation in relation to that property."
As explained by Marin Pedreno, Russia has a treaty obligation to recognize and enforce the orders made in England, but added that this is largely uncharted territory. In her words, "There is as yet no reported case law arising out of the English courts available to assist in considering how the 1996 Convention will be utilised and applied in practice by The Russian Federation." She expressed hope however that the spirit of international cooperation would inspire an outcome in the best interest of children caught up in disputes such as this one.
Toward that end, Ms. Neustadt has submitted an application for the boys' return to the relevant English authority - the International Child Abduction and Contact Unit, which in turn has forwarded the application to the relevant Russian authority - the Ministry of Education. Ms. Neustadt has further obtained attorneys in Moscow, and Mr. Neustadt has been formally served with orders from England and Wales ordering him to return the boys to their mother.