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Family Law

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13 DEC 2013

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

(European Court of Human Rights, 26 November 2013)

The Latvian mother relocated to Australia where she met the father and they had a child together. When the relationship broke down the mother took the 3-year-old child to Latvia without the father's consent. Since the father's name was not registered on the child's birth certificate he applied to the family court in Australia which recognised his paternity and granted his parental responsibility. In reliance of that decision the father applied for a return order pursuant to the Hague Convention which was granted after finding that the child had been wrongfully removed from Australia.

The court refused the mother permission to submit a psychologist's report on the child on the basis that it was not necessary to conduct a full welfare hearing when deciding on whether to grant a return order. The mother's appeal against that decision was refused and she failed to comply with the return order. When the father met the mother and child by chance in Latvia he took the child and drove her to Estonia before returning to Australia. The mother's following complaint of abduction was dismissed.

Following the father and child's return the Australian family court set aside all previous decisions and held that the father had sole parental responsibility for the child. The mother, who also returned to Australia, was prohibited from discussing publically matters relating to her child and was permitted only supervised contact. She was further prevented from speaking in Latvian with the child and from contacting any of her childcare facilities or parents of other children attending them. 

The mother applied to the European Court of Human Rights and claimed that on account of the decision by the Latvian court to order the child's return to Australia her rights under Art 8 of the European Convention had been infringed. The case was heard by the Third Section of the Court which upheld the mother's claim by a majority of 8 votes to 2. At the request of the Latvian Government the case was transferred to the Grand Chamber. The court authorised the Czech and Finnish Governments as well as Reunite to intervene and submit comments.

The Grand Chamber found by 9 votes to 8 that the mother's Art 8 European Convention rights had been violated and by 10 votes to 7 awarded her €2000.

The return order had been requested within a year of the child's removal in accordance with the Hague Convention which provided for an immediate return unless a defence could be raised. However, on the facts of the case, the Latvian court's refusal to admit the psychologist report in relation to the child prevented a full investigation of the possibility of the presence of a grave risk of harm within the meaning of Art 13(b) of the Hague Convention which constituted a breach of the procedural requirements Art 8.

                               

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