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Publications of Kurchinskaya-Grasso Natalia
International Law, 2019-3
Kurchinskaya-Grasso N. - The issues of considering childТs opinion in settling cross-border disputes on protection of custody and visitation rights pp. 14-22

DOI:
10.25136/2306-9899.2019.3.30153

Abstract: The subject of this research is the analysis of the regulations of the Chapter 2, Article 13 of the adopted in 1980 Hague Convention on the Civil Aspects of International Child Abduction pertinent to taking into account child’s opinion in judicial consideration of the question on child’s return to the country of habitual residence. The object of this research is the relations established in the context of settling cross-border disputes on protection of custody and visitation rights. The author underlines the flaws in regulations that determine child’s opinion. Special attention is given to the position of the European Court on Human Rights, courts of Russia and Italy. The article formulates recommendations on improving legislation of the Russian Federation aimed at implementation of norms of the Convention. The main research objective lies in the analysis of the legal, theoretical and practical aspects of determining and consideration of child’s opinion, who has been unlawfully relocated to another county and retained therein. The scientific novelty consists in comprehensive examination of the regulations of Chapter 2, Article 13 of 1980 the Convention, known for the ambiguous approaches towards interpretation and application: the terms “child’s objection”, “child’s opinion” and “child’s consent” are not identical, which needs to be reflected in the Russian legislation; child’s opinion should be taken into account at the stage of judicial consideration, as well as enforcement of court decision pertinent to return of a child to the country of habitual residence; establishment of minimum age of 7 years old, upon attainment of which the courts are obligate to find out child’s opinion in settling cross-border disputes based on regulations of the 1980 Convention.
International Law, 2019-2
Kurchinskaya-Grasso N. - Refusal to return a child to the country of ordinary residence due to his adjustment to the new environment: problems of classification and application pp. 14-22

DOI:
10.25136/2306-9899.2019.2.29646

Abstract: The unlawful relocation of a child to another country does not always entails his return to the country of ordinary residence. One of the reasons of refusal to return is “child’s adjustment to the new environment”; however, neither the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, nor Russian legislation reveals this term. There is no unanimity of vies in the judicial and doctrinal interpretation. Therefore, the problems emerge in application of the aforementioned Convention. Based on the analysis of regulations of the European Court on Human Rights, as well as case law of Italy, Russia and other countries, the author makes an attempt to determine the qualifying features of the concept of “child’s adjustment to the new environment”. The article substantiates the need for its new practical interpretation, including the characteristics of the outside actor of “new environment” (society) and the analysis of inner component (the family, in which a child lives prior to relocation). The conclusion is made on the necessity to adopt an additional protocol to the Convention, which contains the criteria allowing the national courts to unambiguously interpret the term under consideration. After the termination of one-year adaptation period, the child’s interests are not always respected, therefore, in the new additional protocol, the author suggests envisaging the right of both parties involved to request the court to establish the fact of adjustment of a minor child to the new environment earlier than the fixed period. A uniform mechanism must be developed for solving the difficulties of practical implementation of court decisions.
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