The Iron Curtain closes - Russia's anti-LGBTI adoption agenda

A few months ago, I looked in one of my blogs at Anglo-Russian intercountry adoption developments.  This followed the vote in the Commons in this country in favour of marriage equality.  In response, Russian officials warned that there might be consequences for British nationals seeking to adopt Russian children.

It turns out that wasn’t just sabre-rattling.  True to their word, the Russian parliament adopted a bill on support for orphaned children in its third and final reading in late June 2013.  The new law imposes a ban on the adoption of Russian national children by same-sex foreign couples.  Head of the parliamentary Committee on Security and Resistance to Corruption, Irina Yarovava, said:

"The decision to prohibit foreign same-sex couples from adopting Russian children is a measure to ensure the children’s safety and constitutional rights.

"Attempts to simulate the institution of the family and demands for allowing adoptions by same-sex couples are unnatural from the standpoint of the laws of nature and the institution of family law."

On 3 July 2013, President Vladimir Putin signed off on the legislation.  The Kremlin said in a Statement that:

“the measure is aimed at guaranteeing a harmonious and full upbringing for children in adoptive families.” 

For good measure, the new law also forbids adoptions by unmarried individuals who live in countries with laws that permit same-sex unions.

Russia’s recent track-record on LGBTI issues is hardly a commendable one, with parliament voting in mid-June almost unanimously to pass a law to punish the “promotion” of homosexuality with fines and gaol terms.  The law bans what it calls the “propaganda of non-traditional sexual relations” to minors. The word “homosexual” was removed from the text but in parliament one of the law’s backers said “traditional” relations were between a man and a woman.

“It outlaws the spreading of information aimed at forming non-traditional sexual attitudes among children,” said Duma deputy Elena Mizulina.  She also confirmed that it would become an offence to say that gay and straight relationships were equal, describing that as “a distorted perception”. 

Under the law people can be fined up to a maximum of over €2,000 if the offence is committed via the media.  Foreigners who promote homosexuality can be fined, detained for 15 days and deported.

That bill will now go to the Russian Senate before being signed into law by President Vladimir Putin – steps considered to be a formality.

Back to adoption:  according to New York’s Russian Children’s Welfare Society, there are currently more than 700,000 orphans in Russia.  This figure is increasing annually at a rate of 113,000 children.

Some of those hundreds of thousands of vulnerable children will be denied a chance to experience a loving family environment, on account of a prejudice about how worthy or otherwise prospective adopters are based upon their sexual equipment.  A view which runs contrary to all credible studies on topic, which consistently show the sexual orientation of adoptive or foster parents makes precisely no difference to the quality of the parenting they provide (see, for example, Cambridge University’s Centre for Family Studies’ research from March 2013).  

The real tragedy is that, whilst mewling about guaranteeing children a harmonious and full upbringing, the rule which excludes a particular group of individuals as potential adopters achieves just the opposite.  It only serves to narrow the pool of potential adopters and to ensure that vulnerable children in need of a stable family placement are denied one. 

Relocation Applications and the 1996 Hague Convention

Jordans’ Family Law featured on St Valentine’s Day (14 February 2013) a précis of a decision by Mr Justice Hedley on 7 December 2012.

The High Court case concerned an application by a Russian mother to relocate with the parties’ one-year-old daughter back to her native Russia.  The child’s father opposed the application, and sought a shared care arrangement.

The jurisprudence and current trends in relocation cases are dealt with comprehensively elsewhere, and are not the focus of this blog.

According to the summary (I have not been able to track down a full copy of the Judgment yet), the mother was given permission to relocate.  This was conditional upon her obtaining an order from the Russian court enshrining the contact proposals the court had accepted as being in the child’s interests.

Lord Justice Wilson (as he then was) observed in Re R (Leave to Remove: Contact) [2010] EWCA Civ 1137, [2011] 1 FLR 1336 the tension between granting a parent permission to relocate, but then attaching to that permission a contact order.  He said (at para [22]):

“Although a contact order is, as I have noticed, now occasionally made by way of attachment to a grant of leave, it is contrary to principle.  A contact order would be an order taking effect until further order of the English court.  But, on a grant of leave, the English court is, if only for practical reasons, surrendering its control over the child to the foreign court … [I]t would of course be to the court in Perth that the father would turn; for any further order of the English court would not have effect in Australia.  With the leave of the English court, he would be likely to present the judge’s judgment to the judge in Perth and seek an order for contact with L along the lines therein set out … this court [does not] automatically require a foreign, mirror order to be in place before the child leaves England and Wales.  In the circumstances in which the court has some doubt about the applicant’s bona fides in relation to the other parent’s contact, that precaution is often taken; but, in circumstances, like the present, in which the judge reached the firmest conclusion about the mother’s commitment to contact, it would not be usual to put her to the expense and delay of obtaining a mirror order.”

Late last year, the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (‘the Hague PR Convention’) entered into force in this country.

The Convention is intended to harmonise the approach between Contracting States on matters affecting – as its title suggests – the protection of children.  It does this in relation to matters of jurisdiction (which country’s courts and agencies should take measures to protect children), applicable law (which rules of law they ought to apply when doing so) and recognition and enforcement (the intention being a measure taken in one Contracting State should almost always be recognised in another).

The Hague PR Convention is in force throughout almost all of the EU Membership (excepting Belgium and Italy), much of the rest of Europe, and countries further afield, such as Australia and Morocco.  More Contracting States are expected to come on board in the months and years ahead.  The Russian Federation has approved of the Hague PR Convention and it enters into force there on 1 June 2013.  A full status table is available on the Hague Conference website.

If the Hague PR Convention had entered into force between the UK and the Russian Federation, it would have neatly sidestepped in the recently-reported case the tension identified by Wilson LJ.  The English court could have made a contact order at the same time as giving permission to relocate.  That contact order would have been (except in exceptional cases) automatically recognised and capable of enforcement in Russia (Articles 23, 26 and 28 of the Convention).  The father could have sought advance recognition of the contact order from the Russian authorities to ensure there were no obstacles in this regard (Article 24), prior to his daughter moving.  There would have been no need for the mother to obtain a separate order from the Russian court embodying the contact proposals. 

The Ministry of Justice has recently published a guide on how the Hague PR Convention will operate practically, and it is critical reading.   

It is still early days for the Hague PR Convention, but it promises to be an extremely valuable tool – especially as more Contracting States sign up to it – for those working to ensure the best outcomes for children in families where there are transnational issues. 

Nyet Spasiba! – Marriage Equality puts Anglo-Russian Adoptions in Doubt

In the aftermath of the historic Commons’ vote on Tuesday paving the way for marriage equality, Russian officials have said that British couples might be precluded from adopting Russian orphans. 

Quoted in The Telegraph, the human rights envoy at the Russian Foreign Ministry said, "The British and French parliaments have legalised same-sex marriages.  This narrows the chances of citizens of these countries adopting Russian children.”

According to Russia Today, Pavel Astakhov, Russia’s Children’s Rights Ombudsman, said same-sex couples in France would not be allowed to adopt Russian children.  Presumably, the same will be true of British same-sex couples. 

He cited in support of this policy the Russian constitution’s definition of marriage as a “union of a man and a woman.”

“The official position on gay marriages is stated in Russian official documents, the family code and the constitution,” he said. “They put it straight that the marriage is a union of a man and a woman. We do not have anything else. Period.”

These proclamations follow a ban on adoption by US couples, passed in December 2012.  The justification for the ban was said to be a concern that Russian children were being abused by their adoptive parents in the US. 

Commentators believe, however, that the ban is a reaction to the US approval of a law allowing Russian officials suspected of human rights violations to be sanctioned.

 

One Russian legislator, Leonid Kalashnikov, who was not present for the vote on the US adoption ban, described the law as “vindictive”.

In a quote appearing in the Los Angeles Times, Kalashnikov said, "The Kremlin didn't really want to spoil relations with the United States but couldn't leave an unfriendly act unanswered.  So they let off steam by using the fate of thousands of orphans as a lever of political pressure."

According to New York’s Russian Children’s Welfare Society, there are currently more than 700,000 orphans in Russia.  This figure is increasing annually at a rate of 113,000 children.

Tragically, some of those hundreds of thousands of vulnerable children will be denied a chance to experience a loving family environment, on account of antediluvian views about how worthy or otherwise people might be as parents based upon their sexual equipment.  A view which, incidentally, runs contrary to all credible studies on topic, which consistently show the sexual orientation of adoptive or foster parents makes precisely no difference to the quality of the parenting they provide (see, for example, the results of a study published in November 2012 by psychologists from the University of Central Los Angeles on outcomes depending on whether adopted children were placed with gay, lesbian or heterosexual parents).

This truism has fortunately been recognised for some time in this country.  The now defunct Adoption Act 1976 did not allow same-sex couples to adopt.  This was overcome by courts making adoption orders in favour of one of the couple, in the knowledge the child would live with them both.  I was involved in several cases where this work-around was used to ensure the best interests of the child concerned were met. 

And the overhaul of our adoption laws in the form of the Adoption and Children Act 2002 confirmed that adoption orders could be made in favour of civil partners, or two people (whether of differing or the same sex) living together in an enduring family relationship. 

Nyet Spasiba indeed, Russia.