EGMR: ein großer Streit um Sorgerecht mit Kindesentführung nach Russland
McIlwrath v. Russia (no. 60393/13), 18.07.17
The case concerned a cross-border family dispute. The applicant, Michael McIlwrath, an American national and is currently living in Sesto Fiorentino (Italy), married M.G., a Russian and American national, in New York in 1997. In 1998 they moved to Florence (Italy). They had four children together, born in 1997, 2000, 2002 and 2006.
In August 2011, while the couple were in the middle of divorce proceedings in Italy, M.G. took the children to Russia and never returned. Between 2011 and 2014 Mr McIlwrath travelled to Russia more than 50 times seeking to be reunited with his children, in vain. In 2012 M.G. brought parental authority proceedings in Russia, and Mr McIlwrath applied to the Russian courts seeking to determine the children’s residence as being with him. In October 2012 the Russian Courts determined a temporary contract arrangement pending the resolution of the children’s residence proceedings, consisting of Mr McIlwrath spending one hour each week with each child on the premises of their school. This arrangement was however cancelled shortly afterwards – in December 2012 – on the grounds that it was not in the children’s best interests. This decision was based on expert advice from a psychiatric centre as well as firm objections by the children’s school principal to having any further meetings between Mr McIlwrath and his children on school premises following an incident in which the youngest son fiercely resisted meeting his father.
In the meantime, in September 2012 the Florence District Court had pronounced the divorce judgment: care of the children was granted jointly and the children’s residence was determined as being with their father in Italy.
Mr McIlwrath applied to the Russian courts for recognition and enforcement of this judgment. His request was however refused (on appeal in March 2013), because the Russian Courts found the Italian judgment to be incompatible with the basic principles of Russian law and public order. The Italian divorce judgment was subsequently quashed by the Florence Court of Appeal in March 2014, as it found that it could not take measures in relation to the personal relationship between Mr McIlwrath and M.G. or other issues concerning their children. Following this, the Russian courts finally decided on the matter in May 2014, ordering that the children live with their mother and that Mr McIlwrath pay child maintenance and determining his contact rights.
In subsequent developments, Mr McIlwrath took his second-born son from Russia to Italy in August 2014 and has never returned the child to his mother. He has not seen his other children since then. In July 2015 M.G. was convicted in absentia by the Italian courts of abducting her four children and given a three-year prison sentence with suspension of her parental authority.
Relying in particular on Article 8 (right to respect for private and family life), Mr McIlwrath complained that the Russian authorities had failed to assist him in being reunited with his children after they had been taken from Italy to Russia by their mother.
Further relying on Article 6 § 1 (right to a fair hearing and access to court), he alleged that the proceedings in Russia concerning the recognition and enforcement of the Italian divorce judgment of September 2012 had not been fair – as he had not been informed of the date of the appeal hearing during those proceedings and therefore had not been given the opportunity to be present. Violation of Article 8 – with the exception of the part of the complaint concerning matters decided in the decision of the St Petersburg City Court of 19 January 2012, which the Court declared inadmissible
No violation of Article 6
Just satisfaction: EUR 12,500 (non-pecuniary damage)