No recognition for a Russian adoption judgment on public policy grounds

This is a very peculiar case, which I published in the July edition of the Thessaloniki Bar Review (Thessaloniki 1st Instance Court 7013/2013, Armenopoulos 2013 p. 1291 et seq.]. The court invoked substantive public policy arguments, and dismissed the application for the recognition of a Russian judgment.

  

The facts: The applicant is the grandmother of four children. She was born in 1953. The children were born by placing embryos into the uterus of two surrogate mothers. The semen was taken by the applicant’s son, who died sometime in 2010 (not specified in the Greek decision). The children were born in January 2011. They are staying at their grandmother’s house since the date of birth. The grandmother filed an application before the Babushkinsky District Court in Moscow, asking for the adoption of her grandchildren. The request was granted in second instance. The Russian judgment was final and conclusive when the applicant filed an application for its recognition before the Thessaloniki Court. 

The ruling: The court applied Articles 23 et seq. of the 1981 bilateral convention on judicial assistance in civil and criminal matters between the Hellenic Republic and the Soviet Union. The convention applies today by virtue of a Greek-Russian Protocol from 13.12.1995. The court also applied Articles 323 & 905 Greek Code of Civil Procedure, which regulate the recognition and enforcement of foreign judgments in Greece. 

The Thessaloniki 1^st Instance Court dismissed the application on three public policy grounds. 

a.      The court invoked Art. 1544 Greek Civil Code, which sets a twofold limit for the adoption of minors: The adoptive parent has to be at least 18, but no more than 50 years older than the adoptee. In the case at hand the applicant was 58 years older, thus exceeding the limit set by 8 years.

b.      The court made reference to Law 3089/2002 on Artificial Human Fertilization and Art. 1457 & 1458 Civil Code, which set specific requirements for post mortem artificial fertilization. This procedure is permitted under certain conditions (illness of the father, consent of the donor, leave of the court). None of the above requirements were met in the present case.

c.       Finally, the court invoked the public policy clause per se, and held that the effects of the Russian judgment are contrary to fundamental domestic notions of family law. In particular, the court held that, by accepting the foreign ruling, we are heading towards the following paradox: The biological grandmother of the children is legally recognized as their mother, although national provisions (see above under a & b) run contrary to such a result. Moreover the court stated, that the solution given by the Russian court clearly emanates by the grandmother’s desire to seek relief from the pain she felt by her son’s death. Still, this could be achieved through other family law institutions (which are not mentioned in the text of the decision).

For the reasons above, the Thessaloniki 1^st Instance Court dismissed the application, because it violates domestic public policy principles. 

Comments: Roughly 95 % of foreign family law judgments usually are passing the public policy test in Greece. This is one of very few decisions where public policy reservations are leading to refusal of recognition. Admittedly it is a case of unique facts, and I urge any colleague reading this post to comment on potential pertinent case law in her/his own jurisdiction.

I will refrain from any comments on the substance of the matter. The Judge based her findings on undisputable facts, enshrined in provisions of the Greek Civil Code. There is no precedent, and I wonder whether there will be a second case of similar facts in the future.

Still, what is indeed interesting from the procedural point of view is the following: Unlike the Brussels Regulations (44/2001, 2201/2003), the Brussels & Lugano Conventions, and a number of bilateral conventions signed by Greece, the 1981 bilateral convention does not provide for a public policy control! In particular, Art. 24 regulates the requirements for recognition and enforcement, making reference to the following: res iudicata according to the state of origin, right of audience, lack of irreconcilability to an earlier decision rendered at the state of destination, and lack of jurisdiction of the courts of the latter state. The question we should be asking is why the court based its ruling on public policy considerations, since it is not included in the wording of Article 24 of the 1981 convention. There are two answers to that, the one given implicitly by the court, and the other explicitly by legal scholars: 

a.      The court applied the convention in conjunction with domestic procedural law. Following that, it made reference to Art. 323 e CCivP which regulates the public policy requirement for recognition.

b.      The prevailing opinion in theory considers that public policy should be examined by the courts on the basis of Art. 12 of the 1981 convention, which states, that judicial assistance may not be granted, if it would result to a violation of the state’s sovereignty, security, or public order.

To be honest, I don’t feel comfortable with neither of the answers. Starting from the cumulative application of conventional and domestic law, the first sentence of Art. 323 CCivP should be highlighted: “Unless otherwise provided by international conventions…”. In the present case, the international (bilateral) convention does not make reference to public policy. Hence, the court shouldn’t apply Art. 323 CCivP axiomatically; it ought to state the reasons for its choice. Secondly, Art. 12 of the 1981 convention forms part of chapter I, dealing with “general matters”. Recognition and enforcement is governed by chapter V (Art. 23-34). Usually specific provisions prevail over generic ones. Nevertheless, as things stand today, it is the only way to embed public policy in the bilateral convention. I would therefore accept this approach as an intermediary solution to the problem. The proper way to deal with the matter however would be to admit that we are facing a lapsus calami, whose remedy would be an addendum to the convention. 

Finally, I would like to encourage any Russian colleague who had a case dealing with the 1981 bilateral convention, to share his personal point of view.