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Incorrected service is a reason to vacate the court order.

The civil case between the Plaintiff-father (his name keeps in secret) and Defendant-mother (her name keeps in secret) has been considered by district court on January 2017.

The case was open by father against mother according the Hague Convention on the Civil Aspects of International Child Abduction. The Convention was concluded 25 October 1980. The Convention was drafted to ensure the prompt return of children who have been abducted from their country of habitual residence or wrongfully retained in a contracting state not their country of habitual residence.

Both courts, district and appellate court, has been agree with the father’s claim and made decision in his favor.

This case was heard without my participation, and now, having entered the process, I see that the court orders are totally wrong and would be subject to cancellation. I am going to work over this case in Cassation procedure.

I fully reviewed the case and I can see that judges of both courts avoided to carefully study important circumstances of the case, and Russian orders based on the court orders were lodged with illegal judgments of the High court of Justice, Family Division, London, UK, because the British case against mother has been considered secretly, without notification of mother, only between judge and attorney for Plaintiff, based of affidavit of his Russian attorney who unsuccessfully tried to serve Defendant without special knowledge about this procedure. As result, nobody ever informed Respondent about open case in the United Kingdom.

The malpractice of Russian attorney for father has terrible consequences for mother. The blatant lawlessness committed by a British judge led to a number of consequences that must now be eliminated.

The Hague Convention of 1980 provides that the judicial authority does not prescribe the return of the child in the few separate reasons:

1st and 2nd reasons:

The person having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention (Article 13, part 1, paragraph A, of the Hague Convention, 1980).

- It was established that Father gave his written consent for trip to Russia for Mother with child on August 2016. The written consent for trip meets to requirement of Art. 13 part 1, paragraph "A" of the Hague Convention of 1980.

- During conflict between parties which took place, according to email-conversation between parties, on August 21-25, 2016, the Father forbade his wife and daughter to return to the marital house. He gave to Mother written advice to go away, take daughter from school, and let his daughter know that she never again could not see daddy. He said if she comes back, he will call to police and put her to jail. The mother had no problem to come back to the marital house and continue family life, but father’s own free choice to kick her out together with daughter. The written consent to retention answers art. 13 part 1, paragraph "A" of the Hague Convention of 1980.

3rd reason:

There is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation (Article 13, part 1, paragraph B of the Hague Convention, 1980).

Finally, the Father said that he is going to take trip over the world, and when money runs out, he is going to do suicide. Therefore, the father cannot provide security for child. He doesn’t care about child’s life in future if he will die. There is a grave risk that return of daughter would expose the child to psychological harm and otherwise place the child in an intolerable situation, which meets Article 13, part 1, paragraph B of the Hague Convention, 1980.

4th reason:

The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms (Article 20 of the 1980 Hague Convention).

The return of the child may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.

The court of first instance erroneously took into consideration the court orders, the judgments by the UK court, which were considered without the Mother’s appearance and knowledge.

The Court in UK violated requirements Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.

In accordance with Art. 15 of the 1965 Convention, the judge may give judgment only if all the following conditions are fulfilled (1) the document was transmitted by one of the methods provided for in this Convention, (2) a period of time of not less than six months has elapsed since the date of the transmission of the document; (3) no certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities of the State addressed.

Difficulties which may arise in connection with the transmission of judicial documents for service shall be settled through diplomatic channels (Article 14 of the 1965 Convention).

Art. 16 of the 1965 Convention it is established that when a writ of summons or an equivalent document had to be transmitted abroad for the purpose of service, and a judgment has been entered against a defendant who has not appeared, the judge shall have the power to relieve the defendant from the effects of the expiration of the time for appeal from the judgment.

Consequently, the orders which was made by the British court clearly contradict the public order of the Russian Federation and international law in general (in particular, they come into gross contradiction with the Hague Convention of 1965), since the party against which the order was taken was deprived of the opportunity to know about the hearing, to appear to the court, and to defense her own rights and rights of her daughter.

The final order was made based of illegal affidavit of Russian attorney of father, who never ever served mother. Her malpractice cannot consider by any court as proper service due to special rules for process service.

I successfully made over 300 personal services for foreign defendants and I know that proper service is most important part in any court case. I believe that UK order which was made according of non-service of defendant must be vacated no matter what.

The names of the characters in this story are classified in accordance with the law.

Karina Duvall
Articles and consultations authored by attorney reflect the state of law as of the date of their writing. The laws change daily. Users of this site are advised to consult attorney regarding their situation.
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