Nationalism and International Child Abduction: Russian Court Rejects Forum Shopping

There have been further developments in the case of Marianne Grin, previously reported here. On April 12, 2012 the Russian court in St. Petersburg , rejected an application by Grin to initiate proceedings which would allow her to have the children living with her in Russia.  The court ruled that the Italian court retains the proper jurisdiction to determine the issues that Grin was still in the process of litigating, when she abducted the four children from their custodial father in Italy last year.

The recent decision is already being hailed as evidence of the increasing sophistication and independence of the Russian judiciary. This goes against the stereotypical view that Russian courts will seize jurisdiction in international cases in order to favour Russian citizens in disputes.  See, for example, the comment by Dimitry Litvinski, a Russo-Franco practitioner in Paris: http://blog.pravo.ru/blog/3421.html  Litvinksi observes that the Russian judge showed proper regard to international legal norms, the competence of a foreign court to decide issues that were before it, and little tolerance for opportunistic forum shopping.

The decision may also may be motivated primarily with the interests of Russian citizens in mind.  In international child abduction cases, Russian courts are known to favour Russian parties.  Theoretically this would allow the few Russian parents who manage to abduct their children, to be successful in keeping them in Russia once they arrive, regardless of any foreign rulings.

International abduction cases are relatively rare, as they involve illegal conduct of the abducting parent.  Thus, for every foreign parent who is unable to secure the return of a child because of the nationalistic reputation of Russian courts, there are many more law-abiding Russians who are divorcing in foreign countries and who suffer as a consequence.

Given the absence of an effective means to secure the return, foreign courts will often prevent Russian parents from taking a child to visit their grandparents.  Thus, the Grin decision actually helps Russian parents living abroad, as they may cite it as evidence that a foreign decree regarding children will be honoured.  Unfortunately, the grounds on which Grin’s application was rejected were narrower than the court might have ruled.

In many child abduction cases the issue of “forum shopping” is becoming more prevalent in a world where travel and access to information is at our fingertips. The abducting parent may “forum shop” for the country most likely to favour/allow their illegal actions concerning their child e.g. failing to apply the Hague Convention. The evident forum shopping by Grin did not escape the court’s attention.  She was simultaneously participating in proceedings in Italy, where she had been filing the same charges against the father since 2009.  After receiving an adverse interim determination, Grin submitted her application to the Russian court in 2012. The court observed, perhaps with a smile, that Grin had not even registered the children at a Russian address until February 2012, just weeks before the judgment was issued.  The court noted that none of the children had previously lived in Russia.

In rejecting Grin’s application, the court rightly noted the danger of potentially inconsistent determinations between the same parties on the same issues in two different countries. So the earlier proceeding must go first.  But in reaching this conclusion, the court relied on a bilateral convention between the countries for the recognition and enforcement of judgments in civil cases.  While the existence of the convention no doubt reinforced the grounds for rejecting Grin’s claim, it would have been better had the judge simply adopted the view that earlier-filed proceedings on the same issues between the same parties should always be given precedence.

Consequently, Russian citizens going through a divorce in a foreign country may claim reliance on this ruling only where they can point to the existence of a similar bilateral agreement. Without such an agreement, a foreign court would – and should – remain skeptical as to whether a Russian court would enforce a foreign ruling.

As for the Grin case itself, the real outcome may spoil the good news in court.  The decision has still not led to the return of the children to Italy and neither the father or the remaining family have been able to communicate with them.  Due to other concerns expressed about her state of mind, it is not surprising to learn that Grin, having broken the laws of Italy, has now started ignoring the laws of Russia as well.