It is not possible to apply the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction between States which are not bound together by this legal instrument. This was the ruling of a Russian court of appeal on the 1st of October 2014.
In this case, a Russian citizen and an Italian citizen were married and lived together in Italy with their daughter Sofia. When her child was 7 years old, the mother decided that they both leave from Italy to Russia. Then the father sued his wife on the grounds of child abduction. Based on the Convention of 25 October 1980, he asked the judge for his daughter to be sent back in Italy.
It should be remembered that if the Hague Convention on Child Abduction is in force between all the States that have ratified it (for instance between Italy and Argentina), different rules apply with States whose accession giving rise to an acceptance procedure. This is the case for Russia. For these States, accession should be accepted by States already party and who wants the Convention applies between them. As Italy did not accept the Russian accession, these two States are not respectively bound by the Convention.
The father’s lawyers did not consider this aspect. Before the Court of Tver, they claimed that the signature of the Convention of 25 October 1980 by Italy in 1995 and Russia in 2011 makes it perfectly applicable between these States. The court followed this reasoning ruling in the claimant’s favour.
The mother and the prosecutor’s office appealed this judgment to the Moscow City Court. The court of appeal rightly reverses the first instance decision explaining that it was premature to apply the Hague Convention on Child Abduction based on article 22.2 of the Civil procedure Code of the Russian Federation as long as this Convention did not bound Italy and Russia.
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