The case concerned a child born in Italy in 2002 to a Latvian mother and an Italian father. The parents never married and separated in 2003. The mother contended that the father had played a minimal role in raising the child. On 20 September 2004 the Rome Youth Court granted sole custody of the child to the mother and rights of access to the father. On 3 February 2006 the Italian Court ruled that the father had to make child support payments. He failed to do so. The mother complained to the Italian police on 8 April 2006.
The mother’s only income came from her family in Latvia. These payments ended in December 2005 leaving her with no means of supporting herself in Italy. As a result, she returned to Latvia with the child in April 2006. The father applied to the Rome Youth Court for interim sole custody and for the return of the child to Italy. The Court upheld the father’s request and scheduled a hearing for 25 October 2006. Although the Court did not have jurisdiction to order the return of the child it held that he should reside with his father. The mother alleged that she was not notified of the hearing.
On 16 January 2007, the father commenced proceedings under the 1980 Hague Child Abduction Convention for the return of the child to Italy. The Latvian Central Authority held that this would not be in the child’s best interests. He had settled in Latvia and his living conditions there were beneficial to his growth and development. Furthermore, the mother was providing for his emotional and physical development.
On 11 April 2007, the Latvian Court refused the father’s application to return the child to Italy. It held that a defence under Article 13(1)(b) of the Hague Convention had been established. Financial constraints prevented the mother from accompanying the child back to Italy while the safeguards offered by Italy could not guarantee that the child would be protected from psychological harm arising from his separation from his mother. Consequently, Article 11(4) of the Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003) had not been fulfilled.
On 7 August 2007, the father applied to the Rome Youth Court under Article 11 of the Brussels IIa Regulation to issue an immediately enforceable decision ordering the return of the child to Italy. The Court found in his favour and considered the safeguards offered by the father to be adequate to protect the child from any risks arising from his return. The decision was upheld on appeal on 21 April 2008. On 15 October 2008 the Republic of Latvia brought an action against Italy before the European Commission in application of Article 227 of the Treaty Establishing the European Community. It alleged that the Rome Youth Court had failed to comply with the Brussels IIa Regulation by failing to hear either the mother or child as part of the proceedings and by ignoring the decisions of the Latvian courts.
The Commission rejected the claim. There was no indication that returning the child to live with his father in Italy would expose him to physical or psychological harm or otherwise place him in an intolerable situation. Furthermore, the Italian Court had set out specific obligations on the father designed to protect the child from any risk of harm and to enable contact with both parents. Referring to case law of the European Court of Human Rights (Dombo Beheer B.V. v. the Netherlands, (1994) 18 E.H.R.R. 213), the Commission considered that the use of written proceedings was permissible as long as the principle of equality of arms was observed.
The Commission observed that the mother had been given an opportunity to submit written observations on equal grounds with the child’s father and thus neither the Brussels IIa Regulation nor the UN Convention on the Rights of the Child had had been violated. Before the European Court of Human Rights, mother and child complained under Article 8 of the European Convention on Human Rights (ECHR) that the Italian courts’ decisions ordering the child’s return to Italy were contrary to his best interests as well as in violation of international and Latvian law. They further complained under Article 6 about the procedural fairness of decision-making in Italian courts. In particular, they were critical of the fact that the mother was not present at the hearing of the Rome Youth Court.
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