When a foreign court has decided which parent children should live with, its judgment cannot always be enforced in Russia. Even where an international treaty provides for mutual recognition of court judgments, a Russian court must examine whether any statutory grounds for refusing enforcement exist, including those relating to public policy and the protection of children's rights.
An illustrative example is the ruling of the First Appellate Court of General Jurisdiction of 7 August 2024, No. 66-1978/2024. The Russian courts refused to enforce Czech judgments placing two children in their father's care and ordering the mother to pay child maintenance, despite the existence of a treaty on legal assistance between Russia and the Czech Republic.
Background of the Case
In December 2022, the Prague-West District Court in the Czech Republic issued a judgment placing two minor children in their father's care and ordering their mother to pay child maintenance. The judgment was subsequently supplemented and amended by a higher Czech court. Under the final terms, the mother was required to pay CZK 10,000 per month for each child.
By the time the Czech judgments were issued, the mother and children were already living in Russia. The father applied to the Kursk Regional Court for recognition and enforcement of the Czech judgments because they had not been complied with and the children remained in their mother's care. However, the parents had previously been involved in separate proceedings in Russia concerning the return of the children to the Czech Republic.
Why Was the Earlier Russian Judgment Refusing the Children's Return Important?
By a judgment of 17 July 2023, which became final on 4 December 2023, the Tverskoy District Court of Moscow dismissed the father's application for the children's return. The Russian court found that the children's removal had not been wrongful and took into account their objections to returning to the Czech Republic, as well as the risk of psychological harm.
In those proceedings, the court considered Article 13(1)(b) of the 1980 Hague Convention on the Civil Aspects of International Child Abduction. This provision permits the refusal of a child's return where there is a grave risk that the return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
These findings subsequently became relevant in separate proceedings concerning the recognition and enforcement of the Czech custody and maintenance judgments.
Why Did the Russian Court Refuse to Enforce the Czech Judgments?
Russia and the Czech Republic are parties to the Treaty on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters, signed between the USSR and Czechoslovakia on 12 August 1982. The Treaty provides for the recognition and enforcement of certain categories of judgments, including judgments in family matters involving financial obligations.
However, recognition and enforcement are not unconditional. Under Article 412(1)(5) of the Russian Civil Procedure Code, enforcement of a foreign judgment may be refused if it would be contrary to the public policy of the Russian Federation.
The Kursk Regional Court established that the children had been living with their mother in Russia for a considerable period and were financially supported by her. The court also considered the earlier Russian judgment refusing their return to the Czech Republic, the children's own views, and the established risk of psychological harm if they were returned.
In these circumstances, the Russian court concluded that enforcing the Czech judgments placing the children in their father's care and requiring the mother to pay child maintenance would be inconsistent with the children's interests and contrary to Russian public policy. The First Appellate Court of General Jurisdiction upheld the refusal to enforce the judgments.
Can a Russian Court Consider the Child's Best Interests Without Re-examining the Foreign Judgment?
As a general rule, when deciding whether to recognise and enforce a foreign judgment, a Russian court may not reconsider the underlying dispute on its merits. It must, however, determine whether any statutory grounds prevent recognition or enforcement.
In this case, the father argued that the Russian court had effectively reviewed the Czech courts' decisions on their merits. The appellate court rejected this argument, distinguishing between reconsidering a foreign judgment and assessing whether its enforcement would be contrary to public policy.
The court emphasised that protecting children's interests forms part of Russian public policy. Therefore, when considering enforcement of a foreign judgment, the court must examine whether enforcement would adversely affect the rights and legitimate interests of the children.
A Russian court may therefore consider circumstances relating to a child's best interests when assessing enforcement, without formally altering the foreign judgment itself.
How Are the 1980 Hague Convention and the Recognition of Foreign Custody Judgments Connected?
Proceedings for the return of a child under the 1980 Hague Convention and proceedings for the recognition of a foreign custody judgment address different legal questions. In Hague return proceedings, the court examines the circumstances of the child's removal or retention and whether any of the Convention's grounds for refusing return apply. In recognition and enforcement proceedings, the court determines whether an existing foreign judgment may be recognised or enforced.
A judgment refusing a child's return does not automatically require a Russian court to refuse recognition of a foreign custody judgment. However, the circumstances established in the return proceedings may be relevant to a subsequent application for enforcement.
That is what occurred in this case. The Russian court considered the findings from the earlier proceedings, including the children's views, the risk of psychological harm, and the fact that they were living with their mother in Russia.
What Does This Ruling Mean for International Child Custody Disputes?
A final foreign judgment concerning custody or a child's residence does not guarantee its enforcement in Russia. An application for enforcement must be assessed in light of the applicable international treaty, the statutory grounds for refusal, and circumstances affecting the child's rights and welfare.
At the same time, this ruling does not establish a general prohibition on recognising foreign custody judgments in Russia. The courts' conclusions were based on the particular circumstances of the case, including the earlier Russian judgment and evidence of the risk of psychological harm to the children.
The children's Russian citizenship was mentioned in the proceedings, but it should not be treated as an independent, universally applicable ground for refusing enforcement of a foreign judgment.
The practical significance of this case is that, when considering enforcement of a foreign custody judgment, the Russian court examined not only the formal requirements for recognition but also the potential consequences of enforcement for the children.
Where a dispute concerning a child's residence involves proceedings in several countries, it is essential to consider how those proceedings interact, whether foreign judgments can be enforced, and how each decision may affect the child.