Finnish Supreme Court: Refugee’s Children must Return to Mother in Russia

A Russian father, who was long since separated from the mother of his children in Russia, came to Finland with his two sons in September 2022 and applied for asylum. The mother in Russia pleaded in Finnish courts that the children should be returned to Russia in line with the 1980 Hague Convention on the Civil Aspects of Child Abduction (1980 Hague Convention), which the two countries are signatories to. The father stated that a return to Russia would not be in the best interest of the children and would constitute a breach of Finland’s international obligations to protect fundamental human rights.

Judgment

In its judgment of 27 September 2023, the Finnish Supreme Court initially held that the prerequisites for return of the children were met as it was uncontested that the removal was wrongful. The issue for the court was whether a return to Russia could be refused despite this. Article 13.1.b of the 1980 Hague Convention allows for refusal if “there is a grave risk that a return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” With reference to the Hague Conference on Private International Law’s Guide to Good Practice from 2020, the Finnish Supreme Court held that the ground for refusal should be interpreted narrowly.

As regards refusal on the grounds of Article 13.1.b, the Court emphasized that an assessment cannot be based on a  comparison of different general living conditions in the requested state and the state of potential return. Living conditions in another country can only be taken into consideration under Article 13.1.b if the fundamental needs of the children will not be met. Holding that it was not proven that the children would lack fundamental needs like food, rest, hygiene, or child-like activities in Russia, the Court found that there was no ground for refusal under Article 13.1.b. Nor was it claimed in the case that the children risked being involved in the Russian war on Ukraine. However, the father argued that the children’s learning of military skills in school was harmful. In this regard, the Supreme Court concluded that there are ideological and practical differences between the Russian and the Finnish school systems. This difference was not considered to reach the threshold for refusing the return of the children.

The Finnish Supreme Court also noted that Article 20 of the 1980 Hague Convention allows a state requested to return a child to refuse to do so if it is not permitted by its fundamental principles relating to the protection of human rights and fundamental freedoms. Here, the court argued that Finnish law has not implemented Article 20 of the Hague Convention and that it therefore could not be applied. Nonetheless, the Court added that a return of children to another country may be refused if it is in conflict with Section 9 of Finland’s Constitution which grants foreigners the right not to be sent to countries where they risk death penalty, torture or other treatment that violates their human dignity.

Lastly, the court also assessed the views of the children themselves. Under Article 13.2, the own views of the child can be taken into consideration if the child has attained such an age and degree of maturity that this is appropriate. Both children had a strong and genuine view that they wanted to stay with the father in Finland. However, the court held that it was only the older of the two children who had attained such an age and maturity that his views could be taken into account. Thus, the Finnish Supreme Court held that “the best interest of the child” as a whole prevailed over the older child’s own view of wanting to stay with the father in Finland.

Comment

Even if the judgment truly illustrates the strong principle of returning the child after a wrongful removal under the 1980 Hague Convention, I think that the Court’s non-application of Article 20 in the Hague Convention deserves some discussion. First, it is worth noting that Article 20 of the 1980 Hague Convention is not formulated as a traditional public policy exception. According to the explanatory report to the 1980 Hague Convention, Article 20 is a compromise of opposing views (see in particular paragraphs 31-34 of the explanatory report). On the one hand, the convention would risk being a “dead letter” if the requested state too easily could apply an exception. On the other hand, the most fundamental human rights must be protected by a requested state in all circumstances. To that extent, Article 20 serves as a public policy exception in practice. Even if the legal value of human rights has increased in Europe since the 1980 Hague Convention was adopted, one must also remember that every in casu-exception of the strong principle rule that abducted children must always be returned risk leading to a collapse of the system. This is especially true for two neighbouring countries with so fundamentally different ideological and political systems as Finland and Russia.