The 1996 Hague Convention
The case of Neustadt v. Newstadt, judgment in which was handed down on 19 December 2014, concerned the 1996 Hague Convention; the earlier stages of the case generated a lot of publicity in the UK – you can read Daily Mail articles here (11 March 2014) and here (23 August 2014) and a BBC News article (20 November 2013) here. The full title of the 1996 Hague Convention (the most commonly referred to one in the context of child abduction is the one drawn up in 1980) is the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. The full text of it can be read here and a permanent link to it will be placed on the Materials page of this site. It is a wide Convention and covers matters such as parental responsibility orders, contact, child protection, the taking of children into care and more miscellaneous subjects such as legal representation and protection of property; it is not specifically concerned with child abduction. It was signed by Russia on 1 June 2013. The first use of the Convention in the Russian context is believed to have been in the Neustadt case.
In cases between member states of the European Union, the 1996 Convention is of less significance because the Brussels II Revised Regulations, about which I have written recently, are designed to encompass all of the provisions within the 1996 Hague Convention, and more.
Russia is a not a signatory to the 1980 Hague Convention so bringing proceedings through that mechanism to secure the return of the children in this case was a non starter. The return was brought about by the England and Wales High Court (in earlier proceedings) ordering the return of the children and the Moscow City Court, by operation of the 1996 Hague Convention, recognising and enforcing that overseas order in a decision in September 2013, upheld on appeal in November 2013. Without that recognition, the children would not have returned as the England and Wales High Court had no means to enforce its orders abroad.
The factual background needs only be set out briefly. The Russian/German father abducted to Russia his two boys on Christmas Day 2012. They were returned to the care of their UK-based American mother on 24 June 2014; the delay in this happening after the father exhausted the legal avenues in Russia was because he hid the children (described by the High Court as ‘an abduction within an abduction’) after the first court ruled against him and shortly before the second court also did so.
The children having been returned to the UK, the father sought contact with them. Before deciding on whether and, if so, where and how often such contact should take place, the High Court conducted a fact-finding hearing. This was in part concerned with whether the father’s expressions of regret were genuine. You can read more about the circumstances leading up to the abduction and the process by which the two boys were eventually returned in the judgment. All abductions of a child are unconscionable in nature but the Court recognised that the abducting father’s conduct in this case was particularly shocking: see the judgment at paragraphs 21, 24, 46, 52, 58, 72, 82-84, 90-91 and 93-96 in particular.
What the court said
The High Court summarised the evidence presented to it as follows:
110. During his evidence, the father expressed regret for his actions, attributing them in part to incorrect advice from his Russian lawyers. He said that he had learned a very serious lesson and he offered an apology to the court and, for the first time, to the mother.
111. I asked the mother for her reaction to the father’s actions and to his expression of apology. In a single uninterrupted answer, given without bitterness, she replied:
“I believe the abduction of the children was masterminded by Mr Neustadt in order to demonstrate power and ego, and to torment, punish and hurt me. It was about control and his perception of winning, and not about anything else, including about the children.
If we backtrack two years ago, we were at a pretty good place: divorcing, working through things, organising finances, sharing time with the children. I was interested in promoting a most fulfilling childhood for them. Mr Neustadt did not share these motives. Instead of a lovely family vacation, the children and I have had a horrible, traumatising experience and the children will be affected for the rest of their lives. Mr Neustadt tends to blame others rather than to take responsibility. He may be remorseful for the negative ramifications of his actions, not for the actions themselves. I believe he is not capable of putting the children’s interests above his own. I believe he is perhaps unstable. This has been a very unfortunate experience for everyone involved.”
The Court wholeheartedly rejected the father’s expressions of regret and the various excuses advanced for his conduct:
114. These three children have been habitually resident in England and Wales since January 2011. After their parents’ separation, the arrangements for them to live with their mother and spend time with their father were carefully negotiated by the parents and approved by the court.
115. The father’s removal of the children was an abduction, not a retention. I reject his evidence that he only decided to keep them after they arrived in Russia. When he took the children from London, he had no intention of returning them. He had planned it for months, lulling the mother into a false sense of security so that she would agree to the holiday he proposed.
116. The father’s characterisation of Daniel Jakob and Jonathan as Russian children is a self-indulgent delusion. Of course they have a Russian parent, albeit he himself has lived most of his adult life elsewhere. But until December 2012, when they were aged 6½ and 4½, the boys had always lived in Switzerland and England. They had never even visited Russia. Their Russian heritage is important, but it has been played upon by the father because it is the one thing that he can offer that the mother cannot.
117. Having successfully got hold of the children, the father set about strengthening his position by engaging in a series of cynical manoeuvres, delaying tactics and deceptions that he knew the mother would be powerless to oppose. He was only willing to accommodate her in the children’s lives if she came to live in Russia, where she would be under his control. When she would not agree, her access to the children was strictly limited, and then stopped altogether. In doing this, the father counted on his legal position in Russia being secure. I find that he intended to keep the children indefinitely, and was only frustrated by the determined actions of the Russian authorities.
118. The father claims that his actions were influenced by Russian legal advice. I do not accept that he ever genuinely considered his position to be legitimate. He is a man who relies on advice that suits him and ignores advice that does not. He flouted every order of this court and when faced with orders of the Russian courts, he went underground. His excuse for this (danger from unidentified persons) is a bogus invention, but the children were not to know that. They were brainwashed into believing that they were being pursued by dangerous bandits, including their mother. The seriousness of this is not only measured by the length of the separation created by the father, but also by his willingness to root the mother out of the children’s lives. This was not just child abduction, it was child abuse.
119. One of the father’s strategies has been to politicise the children’s situation for his own ends. He took to the Russian media in an attempt to whip up domestic political sentiment by means of deliberate lies, and he delayed the children’s return by obtaining a travel ban. He pursued his goal of keeping control of the children in every legal and illegal way he could devise.
120. The children and their mother have been profoundly affected by these events. For a year and a half, their lives were turned upside down. The boys were separated from their mother and brother. They were forced to live a bizarre clandestine life, surrounded by lies and cut off from normal existence. It will take a long time for them to come to terms with these experiences.
121. At this hearing, the father had the opportunity to show regret and insight. Unfortunately, by his written and oral evidence, his questioning of the mother, his submissions, and his decision not to attend the hearing in person, he showed that he has little appreciation of the impact of his actions on anyone else, including the children. The only person he seemed to be really sorry for was his mother. Throughout his evidence he was pedantic, unreliable and untruthful. When confronted methodically with the clearest evidence, his reaction was to misrepresent, prevaricate, minimise, extenuate and contest. There was no sign of any real remorse. So far, his apologies are no more than a means to an end, motivated by disadvantage and the failure of his grand plan. The mother’s perception of him, recorded above at paragraph 112, is in my view justified.
122. Anyone meeting these parents without knowing the family history is liable to be misled – misled into underestimating past events by the mother’s extraordinary serenity and dignity, and misled into underestimating future risks by the father’s outward appearance of intelligence and courtesy. Given the sustained ruthlessness of his conduct, the risk of further alienation or abduction is high.
123. The collusion by the father’s family increases those risks. The children’s uncle could have used his influence for good, but instead has chosen to support the father throughout. The grandmother’s conduct can only be described as unworthy of a grandparent.
It concluded with the words (emphasis added by me):
124. The next stage of these proceedings concerns the children’s future welfare. However harmful their father’s behaviour has been, he is an important figure for them. Unfortunately, he set about teaching them that they do not need two parents. It will take them time to unlearn that lesson.
The actual decision about those matters will be made at a subsequent hearing, unless the parties can reach an agreement in the meantime. It is normal for the High Court to firstly make findings about facts that are in dispute in a case and then decide what needs to be decided (based on those findings) at a later date, if it is still necessary to do so.
Why the case is significant
The case is of interest for three reasons.
First, it involved the return to two abducted children from a country that was not a signatory to the 1980 Hague Convention. For those familiar with the situation in Japan, that is startling. It is important to note that this would not have happened but for the willingness of the domestic court in Russia to recognise, through the 1996 Convention, the England and Wales High Court’s order that the children should be returned. The case shows that attitudes on the part of local (country of abduction) judiciary are critical in abduction cases, whether covered by the 1980 Hague Convention or not.
Secondly, and as noted at the start, this was the first case involving Russia and the use of the 1996 Hague Convention as the legal basis for returning abducted children.
Thirdly, the case was fully reported i.e. the parents and children were named in the judgment. In most family cases, including cases involving abduction, parties and children are not named so as to protect the identity of the children; nor indeed is any information (e.g. dates of birth, names of schools etc.) that could give rise to the identification of the parties/children involved in the case placed in the public domain. As to the question of full publication, the Court stated as follows in a postscript (emphasis added by me):
127. [T]here is a public interest in the true circumstances of this case being known, for these reasons:
(i) The parties’ accounts of events have already been widely published in England and in Russia. The true facts should be known, particularly where misinformation has been published by one party.
(ii) This is apparently the first case under the 1996 Hague Convention. It shows the importance of the Convention, the willingness and ability of the courts of the Russian Federation to apply it, and the results that can be achieved when lawyers work together across jurisdictions.
(iii) Knowledge of the outcome in this case may encourage the adult victims of other child abductions and deter potential child abductors, especially if the latter know that they might be publicly named.
Bring Back My Boys – website set up by/on behalf of the boys’ mother (although it has not been updated for some months)