International child abduction. Part 3. Russian lawyer Anton Zharov

Which documents are necessary for the court?

Do I need to bring the documents in person or can they be sent by e-mail?

Do I need to translate the documents in Russian?

Is it permitted to communicate with the child before the trial? And will they allow me to do it?

Won’t the parent-abductor escape farther? 

Will the child participate in the trial?

Does child’s view influence court’s decision?

What to do if the parent-abductor bans child’s exit? How to enforce court decision?

Hello, my name is Anton Zharov. I am a Russian lawyer and I practise in Moscow. We are talking about international child abduction and civil law aspects of this process, about the application of the Convention of 1980.

We talked why you need a lawyer. Today we are talking about how to start a judicial procedure of child return. 

Which documents are necessary for the court?

The first thing you need to understand before going to court is that Russian justice differs from the one that most of you are used to in Europe, America and Asia. This is a different judicial procedure with its own rules. It is neither better, nor worse, just it is different. To use it correctly you need to know it. 

In fact, you will need only a few documents at the court. You will have to prove that the child was removed wrongfully and that you have joint or sole custody of this child. 

In most cases these are child birth certificate and tickets with which your spouse left for the Russian Federation. That is enough to start judicial procedure. 

You can submit the documents to court signed by you by mail but certainly it is more convenient to do it through your lawyer that will guarantee not only the submission of documents and their correct selection but also your duly notice of the process that will start in the Russian Federation.

Do I need to bring the documents in person or can they be sent by e-mail?

The court in the Russian Federation judges by the original documents that is why you will have to submit the documents here. However, it is not compulsory to do it during the first judicial session, you can do it just a little bit later. Thus, it is correct to send them to your lawyer by e-mail and then either to send them by express mail or to bring them in person.

Do I need to translate the documents in Russian?

In the Russian Federation the court judges only in Russian that is why all the documents that you submit must be translated and the translation must be certified. The most convenient way is to do it in Russia but some states cover the translation, for instance, Denmark or other European Union states, that is why it is done there but as a rule in Russia it is cheaper. That is why you should keep in mind that all the submitted documents must be translated into Russian. Concerning documents apostille, it is desirable but not compulsory. The Convention allows to submit the documents the way they are without compulsory apostille.

Is it permitted to communicate with the child before the trial? And will they allow me to do it?

On its own terms international child abduction does not deny the child’s right to communicate with his or her parents. You can demand for communication with your child whether he or she is abducted or not. It is your parental right; it is the child’s right to communicate with his or her parent. The court in the Russian Federation in some cases can compel the second parent to provide such communication. However, within the framework of international child abduction (of child return) case, unfortunately, it usually fails.

Won’t the parent-abductor escape farther?

Code of civil procedure of the Russian Federation allows taking the so-called provisional measures. It means that the court can bind over a ban to change child’s place of residence until the end of all judicial procedures, and such an order is often issued if the plaintiff’s party asks for it.

Will the child participate in the trial?

As established by the Convention on the Rights of the Child – the child has the right to be heard in any judicial proceedings affecting him or her, and the issue of child return to the country where he or she was abducted from, certainly concerns him or her. 

In the Russian Federation all children older than 10 are interrogated. In some cases, a child younger than this age can be interrogated as well. It means that the child will be brought to the court hearing, the parents will be asked to leave the courtroom, and the guardianship officers, the judge, the prosecutor, lawyers of the parties will ask children questions. Certainly, in the Russian Federation there are specialists that interrogate children sensitively, don’t ask them direct questions such as “who do you love more mother or father”, “to return or not to return”. The object is to find out child’s view without hurting him or her, and we have such experience.

Does child’s view influence court’s decision?

According to Article 13 of the Convention on International Child Abduction child’s view is taken into account if he or she has attained a degree of maturity when he or she can express his or her views on this issue. It means that the child, for instance, of 10 years old can object to the return or vice versa demand such a return. The court must take it into account.

What to do if the parent-abductor bans child’s exit? How to enforce court decision?

If we talk about the Russian Federation the parent-abductor rather often puts a ban on child’s exit from the country. And the second parent engaged in child return meets certain obstacles. However, if you have court decision binding over child’s return under this Convention, there should not appear any problems on the border. The child will leave the Russian Federation peacefully in spite of the fact that such a ban can be put in theory.

I hope it became a bit clearer what to do in Russian court in order to start a judicial procedure of child return from the Russian Federation. Next time we will talk how to behave in the court and what will happen there.