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25 JAN 2012

ABDUCTION: X v Latvia (Application No 27853/09)

(European Court of Human Rights; 13 December 2011)

The mother was a Latvian national who lived in Australia and acquired citizenship. She met her partner in Australia when she was pregnant. The identity of the father was unknown but the partner lived with the mother.  The couple separated, and the mother and child returned to Latvia. The partner applied to the Australian family court to establish his parental rights and made a Hague Convention application.

The Court held the partner shared joint parental responsibility . The Latvian court ordered the mother to return the child to Australia. The mother failed to return to Australia and by chance the partner met the mother and child at a shopping centre in Latvia, where he took the child to Estonia to commence the trip to Australia. A disciplinary investigation in Latvia found there were insufficient regulations to avoid the violent and traumatic execution of the court orders in similar cases.

In Australia the partner was granted sole parental responsibility for the child, the mother was restrained from discussing publically the child or the partner,  she was granted supervised contact and until the child reached 11 the mother was prevented from communicating with the child's pre-school or school facility or with a child or parent of a child attending the same facility. She was also prohibited from communicating with the child in Latvian.

The mother alleged a breach of Arts 6 and 8 of the European Convention. The Latvian court's order for the return of the child had been in accordance with law and in pursuit of a legitimate aim but the court's approach lacked an in-depth examination of the whole family situation which rendered the return order a disproportionate interference.  The court should have assessed what safeguards were in place to protect the child's interests and a consideration of whether the child's contact with her mother would be maintained if she were returned to Australia. Breach of Art 8.

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