Recognition of a Russian judgment annulling an adoption does not violate Swiss public policy; remittal to the lower court

Facts

The parties are Russian nationals who married in Moscow in 1995 and adopted three children during the marriage ([C.] , born 2005; [D.] , born 2006; [E.] , born 1999, now of age). Since 2009 the parties have lived in Switzerland. The marriage was dissolved in Moscow in 2012; the appellant (father) was awarded sole parental authority and custody, and the respondent (mother) was granted visitation and holiday rights.

In 2013 the Child and Adult Protection Authority of the St. Gallen Region (KESB) provisionally prohibited all personal contact between the respondent and the children, in 2014 granted her only telephone contact under supervision, and ordered an assessment of parenting capacity.

At the end of 2014 the appellant sued before the Kuntsevo District Court of the City of Moscow for annulment of the adoption. By judgment of 10 February 2015 the Russian court annulled the adoption with respect to all three children; the appeal was dismissed by the Moscow City Court on 14 May 2015, whereupon the judgment became final.

On 1 March 2016 the KESB recognized the Russian judgment in full, denied the respondent's claim to personal contact under Art. 273 CC, and referred the claim under Art. 274a CC to separate proceedings.

On 7 December 2018 the Administrative Appeals Commission of the Canton of St. Gallen set aside paragraphs 1 to 3, refused recognition of the Russian judgment, and remitted the regulation of personal contact between the respondent and [C.] and [D.] to the KESB. By judgment of 8 January 2020 the Cantonal Court of St. Gallen dismissed the appellant's appeal and struck off the application for provisional measures.

On 17 February 2020 the appellant lodged a civil law appeal with the FSCA, requesting incidental recognition of the Russian judgment, a finding that the respondent has no claim to personal contact under Art. 273 CC, and the removal of the proceedings concerning personal contact from the docket. The FSCA denied suspensive effect. The Cantonal Court waived a response and requested dismissal; the respondent likewise requested dismissal.

The question at issue was whether the Russian judgment annulling the adoption violates Swiss public policy under Art. 27 para. 1 PILA, in particular with regard to the best interests of the child, the children's personality rights and Art. 8 ECHR.

Considerations

Admissibility: The FSCA examines of its own motion the admissibility requirements (Art. 29 para. 1 FSCA). The decision on the recognition of the Russian judgment is an appealable partial decision within the meaning of Art. 91 lit. a FSCA; the fact that before the FSCA only incidental recognition is still sought does not alter this (Art. 99 para. 2 FSCA). The remittal decision concerning personal contact is an interlocutory decision whose appealability under Art. 93 FSCA may remain open, since the FSCA could in any event not itself regulate the question.

Standard of public policy: Under Art. 27 para. 1 PILA a foreign decision is not recognized if recognition would be manifestly incompatible with Swiss public policy. A violation exists only where recognition would be fundamentally incompatible with domestic legal and ethical value judgments. The examination is not conducted in the abstract but by reference to the effects of recognition in the individual case. The reservation is to be applied restrictively in order to avoid limping legal relationships (FSCA 141 III 312 consid. 4). The ECHR forms part of federal law and feeds into the determination of public policy.

Submissions of the Cantonal Court: The lower court considered the annulment of the adoption to violate substantive public policy, because the legal parent-child relationship with the mother was dissolved irrevocably and disproportionately, the children would lose their right to a relationship with both mother and father, and Swiss law in Art. 269a CC does not recognize a threat to the child's welfare as a ground for challenge but provides only for milder measures such as withdrawal of parental authority (Art. 311 CC).

European Convention on Human Rights: According to the case law of the ECtHR, the dissolution of the legal relationship between a parent and a child, even against the parent's will, is permissible under Art. 8 ECHR in exceptional circumstances where it is justified by the overriding interest in the child's welfare (judgments Strand Lobben v. Norway, para. 209; Aune v. Norway, para. 66). Dissolution is therefore not per se contrary to the Convention.

Assessment: The FSCA does not find the lower court's conclusion convincing. The fact that Swiss adoption law contains no such ground for annulment is not sufficient, since the reservation applies restrictively and a deviating foreign solution is not enough; the judgment would have to…