X. v. Latvia (Application No 27853/09)

INCADAT legal file Hague parental abduction

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The application concerned a child born in Australia in February 2005 to a Latvian mother and an Australian father. The mother had met the father in early 2004 and moved into his flat at the end of the year when she was in a late stage of pregnancy. The relationship between the parties deteriorated. The mother continued to live in the father’s apartment as a tenant. On 17 July 2008 the mother left Australia with the child and returned to Latvia without the father’s consent. On 22 September a return petition was filed with the Latvian Central Authority.
On 6 November the Family Court of Australia ruled that the parents had joint parental responsibility for the child. The mother did not appeal this ruling. On 19 November the Rīga City Zemgale District Court ordered the return of the child. It held that the Australian decision on the father’s parental responsibility was not subject to review by the Latvian courts and dismissed the mother’s claim that returning to Australia would expose the child to psychological harm.
On appeal, the mother relied on a psychologist’s report which stated that the child could suffer psychological trauma as a result of being separated from her mother. She argued that in law and in practice she had been the child’s sole guardian prior to their departure from Australia and alleged that the father had mistreated them. She also claimed that the father had previous convictions and had been charged with corruption, allegations which had not been investigated by the lower court.
The lower court had also not enquired into the measures which would guarantee the child’s safety on being returned to Australia. Furthermore, the mother pointed out that the child attended pre-school activities in Latvia and spoke Latvian as her native language. In Australia, the mother would be unemployed and would not be able to support herself and the child. On 26 January 2009 the Rīgas Apgabaltiesa (Rīga Regional Court) dismissed the mother’s appeal. It held that there was no evidence to substantiate her allegations of mistreatment and pending criminal charges.
Furthermore, as the issue before the Court concerned the return of the child under the 1980 Hague Child Abduction Convention and not custody rights, it was not required to determine the risk of psychological harm. There was no evidence to suggest that returning to Australia would threaten the child’s safety as Australian legislation provided for the security of children and their protection against mistreatment within the family. The mother applied to suspend the return order for six to twelve months.
In March 2009, the father went to Latvia in an attempt to see the child. He executed the return order himself. He took the child and drove to Tallinn, Estonia in order to travel back to Australia. At the mother’s request, the Latvian police instigated criminal abduction proceedings but did not bring charges against the father. In September 2009, the Family Court of Australia awarded the father sole parental responsibility. The mother was permitted to visit the child under the supervision of a social worker. However, the Court prohibited her from speaking to the child in Latvian and, until the child’s eleventh birthday, from communicating with any childcare facility, school or parent of a child attending the same institution.
Before the European Court of Human Rights, the mother complained under Article 6 of the European Convention on Human Rights (ECHR) that the proceedings before the Latvian courts had not been fair. She argued that the courts had erred in interpreting and applying the Hague Convention. Furthermore, that they had disregarded her evidence concerning the best interests of the child and the fact that she was the child’s sole guardian at the time of the removal from Australia. Instead, they had relied solely on the evidence of the father and had refused to obtain the evidence requested by the mother, thereby infringing the principle of equality of arms. The Court considered the mother’s allegations under Article 8 of the ECHR which protected her right to respect for family life.