It can become easier for children to travel abroad, even if their parents are in conflict over this. The State Duma is working on a law that will allow parents to prohibit travel for children not immediately to all countries, but only to some and for a certain period, while the restrictions will not apply to the initiator of their introduction. Experts call the project a long-awaited one, but complain that it does not solve many pressing problems.
Former spouses do not always manage to part peacefully - they can argue about the division of property, and if there are joint children, then about their upbringing. According to Russian laws, both mom and dad, if they are not deprived of parental rights, have an equal right to determine how to raise a child - where to live, study, receive treatment and rest. And parents can prohibit, for example, taking their children abroad. The ban is total - it applies to all countries and is valid until the child comes of age. This right is given to parents by the law “On the procedure for leaving the Russian Federation and entering the Russian Federation”.
In practice, this right sometimes becomes a tool for settling scores or fighting between ex-spouses, say practicing lawyers. “Separately living parents do quite often close the border for their children, not because they are afraid of taking the child abroad for permanent residence, but because they use it as a lever of pressure on the ex-spouse with whom the child is left to live, or simply because of harm,” says the lawyer, head of the project of the Federal Union of Lawyers of Russia "Women's Law" Tatyana Sustina.
This becomes possible because the parent is not obliged to motivate the prohibition - his decision is enough. It is easy to draw up - an application to the migration department of the territorial bodies of the Ministry of Internal Affairs. Even notifying the other parent is not required. In practice, this leads to the fact that the impossibility of traveling abroad is sometimes found out only at the airport.
“In order to find out about the impossibility of the child's departure, it is necessary to apply with a request for information to the territorial office of the Ministry of Internal Affairs on migration issues, but the database is updated irregularly, so the presence of a“fresh”ban can unpleasantly surprise at the airport,” says Pen & Paper Ekaterina Tyagai.
It will not be possible to resolve the issue at the customs post, the only option is to go to court, experts explain. Moreover, the general ban on traveling abroad is rarely lifted, and it is quite possible to obtain permission for a specific trip. “The statement of claim should indicate the countries and time periods where and when the parent asks to be allowed to leave with the child,” says Viktoria Dergunova, a lawyer and partner of BGP Litigation.
“Courts are not always willing to lift such prohibitions and examine the following points: justification of the rights of children, the benefits of travel, its benefits for the child; the purpose of the trip (tourism, health improvement, treatment, education or broadening one's horizons, improving living conditions, even if they are temporary, sports or other competitions, Olympiads, visiting relatives),”says Veronika Salnikova, partner of the Yakovlev & Partners legal group.
According to her, when lifting the ban, the courts are always focused on the interests of the child and proceed from the fact whether the child will be safe, adequately protected outside Russia, whether he really needs to travel outside the country (the purpose of departure and the period matter).
The courts may refuse if the country is not recommended for visiting by the Ministry of Foreign Affairs of the Russian Federation or Rosturizm due to a political, epidemiological or environmental situation, as well as if there is a risk that the child and parent will not return to Russia, adds Victoria Dergunova.
Boomerang effect
Experts admit that sometimes the imposition of such a ban has serious grounds. For example, if there is a risk that one of the parents, permanently living in another country or planning to move, intends to take their children with them, and the other parent is against.
However, the parent who initiated the introduction of restrictions is now also deprived of the opportunity to take the child out of the country, for example, on vacation, study, competition, to visit relatives, etc. The fact is that the ban is general in nature and to cancel it, you also need to go to court - it is impossible to do it administratively.
Such a problem, in particular, was previously faced by a resident of Omsk, whose ex-wife lives in the United States, and a common daughter with him. Fearing the illegal export of the girl abroad, he imposed a corresponding ban. And when he himself wanted to go abroad with his daughter, including on vacation, the courts allowed him only a trip to his relatives in Kazakhstan, and having stipulated its specific terms. The man turned to the Constitutional Court of the Russian Federation, where he found support in the summer of 2020. The Constitutional Court of the Russian Federation considered this approach unnecessarily harsh and ordered to amend the law so that the courts could completely lift the ban at the request of the parent with whom the child lives.
Legislative innovations
The government promptly responded to this decision of the Constitutional Court and has already submitted to the State Duma a bill simplifying the lifting of the ban on foreign travel for children.
Experts unanimously call an important and necessary provision allowing the initiator of the ban to withdraw his statement out of court. “This will allow to quickly resolve situations in case of reconciliation of parents or the need for prompt medical intervention, as well as reduce the burden on the judicial system where it could have been avoided,” explains Victoria Dergunova.
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However, if the parents fail to come to an agreement among themselves, then the issue of going abroad, as now, will be decided in court.
The bill lacks an indication of the need to motivate the introduction of a ban on leaving Russia for a child, experts say. “The need for argumentation would significantly reduce the very number of prohibitions, since often the motive is personal negative emotions that have nothing to do with the interests of children,” says Yekaterina Tyagai.
Also, in their opinion, it is worth considering the introduction of administrative procedures for appealing restrictions, even if there is a dispute between the parents. According to Victoria Dergunova, consideration of family disputes in court should be a last resort and should be carried out only in cases where it is not possible to protect the rights of the child in any other way.
Best the enemy of the good?
Another important innovation in the project is that the ban on traveling abroad for a child will not work if he travels there together with the initiator of the restriction. This will allow us to no longer admit in practice a situation similar to that faced by the above-mentioned resident of Omsk.
In addition, according to the project, there is a variability in the imposition of restrictions on foreign travel of children. Parents will be able to agree on a number of countries and time periods when the child cannot be taken there. However, it is allowed to establish a total ban on all countries until the child reaches the age of majority, as now. It is allowed to submit several applications, for example, in one banning travel to European countries in the summer, in the other - Latin America in winter. In this case, the border guards will take into account all the restrictions at once.
According to Veronika Salnikova, the innovations will remove a lot of questions and difficulties in the relationship between parents and correspond to the interests of the child.
Lawyer Victoria Dergunova draws attention to the fact that the proposed order of restrictions does not in itself solve the problem of leaving for prohibited countries through the states permitted to visit.
There is another problem - the possibility of filing multiple applications. “To avoid abuse, when parents can actually submit and withdraw appropriate applications every day to resolve mutual disagreements, it may be worthwhile to provide for certain deadlines before the expiration of which it will be impossible to reapply with the relevant applications,” she said.
The bill is currently under consideration in the State Duma. Its adoption in the first reading is scheduled for February this year, according to the data from the filing cabinet of the lower house of parliament.