THE United States cannot determine the parental rights of a minor child in the case involving estranged partners — Russian-American Allen Gassen and former model Priscilla Chigariro — on the grounds of the Hague Convention, the High Court has ruled.
The application was brought in terms of the Child Abduction
Act as read with Article 15 of The Hague Convention on the Civil Aspects of
International Child Abduction, which is the first schedule to the Child
Abduction Act (The Hague Convention).
Chigariro brought the child to Zimbabwe from Russia in
November last year without the consent of his partner, prompting Gassen to
approach the High Court.
He sought a declaratory order that the removal of the minor
child from Russia and its retention in Zimbabwe was unlawful and wanted her to
be sent to the US for determination of the parties respective parental rights.
The child was born in Russia through surrogacy arrangement,
as the mother could not carry pregnancy to the term because of medical health
issues.
After hearing submissions from both parties’ counsel,
Justice Ester Muremba dismissed the application by Gassen, finding that at the
time the child was removed from Russia, she had no habitual residence there and
the parties never intended to have their child stay in Russia.
In this regard, she ruled that Gassen claim that Chigariro
breached his custody and access rights to the minor was untenable.
Justice Muremba said the child could not be sent to the US
when it was not the child’s habitual residence before her removal to Zimbabwe.
Though Gassen wanted the US to decide the parental rights
of the parties over the child on the basis of the Hague Convention, Justice
Muremba disagreed saying the convention would have been applicable if the child
had been wrongfully removed from the US.
“That the USA was the intended child’s habitual residence
by the parties as parents of the child does not entitle the bringing of an
application under the Hague Convention,” she said.
“In order for applicant to enforce what he says the parties
had agreed upon that the child be raised in the USA, the applicant ought to
have used a different cause of action instead of The Hague Convention.”
The convention is designed to protect children from harm in
cases of wrongful removal or retention by securing their prompt return to the
State with which they had the strongest connection.
An order granted under the convention is a return order,
which is designed to restore the status quo that existed before the wrongful
removal or retention of a child.
In this case, the child’s habitual residence immediately
prior to the abduction would provide the most appropriate forum for a
determination of parental rights.
She would not be inclined to allow the consequential relief
that the child be sent to the US for determination of the parental rights.
“Such an order would not be consistent with the purpose of
the Convention, which is to restore the status quo,” said Justice Muremba.
In his application, Gassen argued that the parties, who are
on separation, had agreed to have their children raised in the US, where their
son has already settled in the American system.
He argued that contrary to the parties’ agreement,
Chigariro had wrongfully kept their daughter in Zimbabwe and registered the
child in the country using fraudulent documents.
On the other hand, Chigariro averred that the Russian court
declared her to be the mother of the minor child.
She argued that since the child was born out of wedlock,
she had the full parental rights, which could only be interfered with by Gassen
obtaining a court order.
Chigariro denied ever entering an agreement with Gassen to
relocate to the US and the claims of fraud levelled against her. Herald
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