CEDH · CASELAW;CLIN;ENG — 13 décembre 2011

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Latvia - 27853/09 Judgment 13.12.2011 [Section III] Article 8 Article 8-1 Respect for family life Lack of in-depth examination of all relevant factors when deciding to return applicant’s child under the Hague Convention on the Civil Aspects of International Child Abduction: violation [This case was referred to the Grand Chamber on 4 June 2012] Facts – The applicant lived in Australia and in 2005 gave birth to a daughter while living with her partner   T. The child’s birth certificate did not state the father’s name and no paternity test was ever carried out. In 2008 the applicant left Australia with her daughter and returned to Latvia. T. then filed a claim with the Australian courts seeking to establish his parental rights in respect of the child. He stated that he had submitted false documents to the social-security services in order for the applicant to receive the single-parent benefit and that she had fled Australia taking the child without his consent, contrary to the Hague Convention on the Civil Aspects of International Child Abduction. The Australian court decided that T. and the applicant had joint custody of the child and that the case would be further reviewed once the child was returned to Australia. Once the competent Latvian authorities received notification from the Australian authorities, they heard representations from the applicant, who contested the applicability of the Hague Convention claiming that she had been the child’s sole guardian. The Latvian courts granted T.’s request concluding that it was not up to them to challenge the conclusions reached by the Australian authorities concerning his parental responsibility. Consequently, the applicant was ordered to return the child to Australia within six weeks. On appeal, the applicant claimed that the child was well integrated in Latvia and submitted a psychologist’s report stating that the child should not be separated from her mother. Her appeal was dismissed. In March 2009 T. met the applicant, took the child and returned with her to Australia. Ultimately, the Australian courts ruled that T. was the sole guardian and that the applicant was only allowed to visit the child under supervision and was not allowed to speak to her in Latvian. Law – Article 8: The Court was called upon to assess whether the decision-making process leading to the interference with the applicant’s Article   8 rights had been fair and such as to afford due respect to her interests safeguarded by that provision. Such an interference could not be regarded as “necessary in a democratic society” if, among other things, the persons concerned were prevented from being sufficiently involved in the decision-making process and if the domestic courts failed to conduct an in-depth examination of the entire family situation and of factors of an emotional, psychological and medical nature. In this connection, the Court reiterated that the concept of the child’s “best interests” was a primary consideration in the procedures provided for in the Hague Convention. Before the Latvian courts the applicant had relied on several grounds in order to establish that the child’s return to Australia would not serve the child’s best interests, in particular the psychologist’s report which indicated that the child would be exposed to psychological harm if she was separated from her mother. However, the Latvian courts had failed to consider the clear conclusions of that report, despite the fact that the requirement for procedural fairness enshrined in Article   8 obliged the national courts to pay due respect to the arguable claims brought by the parties in order to ensure that the child’s return would be ordered only in his or her best interests and not as a purely procedural measure. In that connection, the Hague Convention had to be seen as an instrument of a procedural nature and not as a human-rights treaty. The Latvian courts had further omitted to assess the child’s material well-being if returned to Australia, or the mother’s ability to follow and maintain contact with her there. They had thus failed to carry out an in-depth examination of the entire family situation and all relevant factors, and had rendered the interference disproportionate. Conclusion : violation (five votes to two). Article 41: EUR 9,000 in respect of non-pecuniary damage. (See also Maumousseau and Washington v. France , 39388/05, 6   December 2007, and Neulinger and Shuruk v.   Switzerland [GC], 41615/07, 6   July 2010, Information Note   132)   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes