CASE OF X v. LATVIA
Remainder inadmissible;Violation of Art. 8;Non-pecuniary damage - award
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra
5. The applicant is a Latvian national who was born in 1974 and resides in Australia. In 2007 the applicant obtained Australian citizenship. 6. In early 2004 she met T. and they developed a relationship. The applicant moved into T.’s apartment at the end of 2004 when she was in a late stage of her pregnancy. 7. In February 2005 the applicant gave birth to a daughter. The birth certificate of the child does not state the name of her father and no paternity test had been carried out at the time the application was lodged with the Court. Since the birth of the child the applicant has been entitled to benefits under a single-parent support scheme. 8. It appears that the applicant’s relationship with T. deteriorated and they decided to separate. The applicant continued to share the apartment with T. as a tenant. 9. On 17 July 2008 the applicant left Australia with the child and went back to Latvia. 10. On 19 August 2008, after the applicant arrived in Latvia, T. submitted an application to the Family Court of Australia to establish his parental rights in respect of the child. To support the claim T. testified in an affidavit before the Australian Family Court that he had been in a relationship with the applicant since 2004 and that the latter had always told him that he was the father of the child, even if he was not legally recognised as such. T. also stated that the mutual rent agreement was false and that he had submitted false declarations to the social security services in order to allow the applicant to receive a single-parent benefit. He asserted that the applicant had fled Australia with the child without his consent, thereby violating Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”). T. alleged that the location of the applicant in Latvia was unknown to him. In support of his claims T. attached to his application e-mail correspondence between the applicant and his family members. 11. On 6 November 2008 the Australian Family Court, in the absence of the applicant, decided (1) that both T. and the applicant had had joint parental responsibility for their child since the day of her birth, and (2) that the case would be reviewed after the return of the applicant and the child to Australia. 12. It appears that the applicant was invited to attend the hearing or follow it by telephone via an e-mail and a text message. The decision of 6 November 2008 was not appealed against by the applicant. 13. On 22 September 2008 the Ministry of Children and Family Affairs of the Republic of Latvia, which was the Central Authority responsible for implementing the Hague Convention, received from the Australian Central Authority a request from T. concerning the return of the child to Australia under the Hague Convention. 14. On 19 November 2008 the Rīga City Zemgale District Court examined the request in the presence of both the applicant and T. In the hearing the applicant contested the applicability of the Hague Convention alleging that she did not know who the father of her daughter was. She assumed that T. had initiated the proceedings so that they would serve as a mitigating element in criminal proceedings allegedly pending against him in Australia. 15. A representative of the Orphans’ Court (Bāriņtiesa) argued that the claim should be dismissed because at the time of the child’s removal from Australia the applicant had been a single mother, and that the child had developed ties with Latvia. 16. The lower court granted T.’s request, stating that pursuant to Articles 1 and 14 of the Hague Convention the decision by which the Australian Central Authorities had established T.’s parental responsibility for the child was not subject to review by the Latvian courts, as they could decide only whether there had been a wrongful removal and whether the child should be returned. When applying Article 13 of the Hague Convention the court relied on photos and transcripts of e-mails between the applicant and T.’s relatives. It concluded that even if the applicant and T. had communication and financial problems, the latter had taken care of the child prior to her removal to Latvia. The court dismissed as ill-founded the applicant’s arguments that the return of the child to Australia might lead to her psychological detriment, stating that these were only assumptions. 17. As a result, the applicant was ordered to return the child to Australia immediately and in any event not later than six weeks from adoption of the decision. The decision also stated that if the applicant failed to respect the time-limit set by the court, then T. was authorised to return the child himself. 18. The applicant submitted an ancillary complaint in which she argued that she had been the sole guardian in law and in practice of the child at the time they had left Australia. 19. She also indicated that returning the child would expose her to psychological harm. She relied on the conclusions of a psychologist who examined the child on 16 December 2008: “[...] Although the results of the examination show that the child has developed an adequate level of knowledge and language, the girl cannot, due to her minor age, define her opinion about her place of residence [...]. Having regard to the child’s age and close emotional ties with her mother, which is normal at this age, the emotional well-being of the child primarily depends on and is closely linked with the psychological balance of [the applicant]. [...] the child needs the daily presence of the mother and a permanent place of residence with [the applicant]. Having regard to the age of the child – three years and ten months – immediate termination of contact between the mother and the child should be ruled out, otherwise psychological trauma might be caused to the child in that the child’s sense of security and personal confidence could be impaired”. 20. The applicant also brought the appellate court’s attention to the fact that Latvian was the native language of the child; that she attended pre-school activities in Latvia and that T. had ill-treated the applicant and the child. In addition, the applicant complained that the lower court had refused to request from the Australian authorities information of T.’s previous convictions and the criminal charges of corruption brought against him. She also contended that in Australia she would be unemployed and would not have resources to ensure the legal protection of herself and the child, and that the lower court had not assessed the child’s social guarantees and safety if returned to Australia. 21. On 26 January 2009 the Rīga Regional Court (Rīgas Apgabaltiesa) upheld the decision of the lower court. It also dismissed the argument of possible psychological harm to the child: “[The court] dismisses ... the allegation that [T.] ill-treated [the applicant] and the child, as well as [the allegation] that he was facing a prison sentence concerning [criminal charges brought against him] as no evidence has been submitted which could, at least by implication, support the allegations. Neither can the conclusion of the [psychological assessment] of 16 December 2008 serve as evidence against the return of the child to the requesting state. Although the conclusion stated that the child was in need of her mother and that immediate termination of contact between the mother and the child should be ruled out, the issue raised before this court does not concern custody rights... . Pursuant to Article 19 of the Hague Convention, a decision under this convention concerning the return of a child shall not be taken to be a determination on the merits of any custody issue. [The court] considers that...[the child]...has not reached an age or level of maturity which would allow her to formulate an opinion concerning a return to Australia. 22. During the hearing the representative of the Orphans’ Court, inter alia, noted that there was no information as to the child’s situation if she was returned to Australia. The appellate court noted in this respect: [The court] considers that there are no grounds to undermine the social protection and security of the child in Australia as, according to the [affidavit], Australian legislation provides, inter alia, for the security of children and [their] protection against ill-treatment within the family”. 23. On 5 February 2009 a bailiff requested the applicant to comply with the return order by 19 February 2009, which she failed to do. 24. On 24 February 2009, in response to a request by the applicant, the prosecutor’s office refused to reverse the decision adopted by the Rīga Regional Court. 25. On an unspecified date a bailiff lodged an application with the Rīga City Zemgale District Court for enforcement of the order to return the child. At the same time the applicant filed an application asking for suspension of the return order for a period of six to twelve months. The court scheduled a hearing of both applications on 16 April 2009. 26. On 6 March 2009 at T.’s request the Central Authority asked the Orphans’ Court to verify the child’s living conditions and inform the applicant of T.’s request to see the child. 27. On 14 March 2009 T. met the applicant and the child by chance near a shopping centre, from where T. took the child and drove to Tallinn, Estonia, in order to commence a trip back to Australia. Following a request from the Central Authority of Estonia concerning T.’s right to return the child to Australia, on 16 March 2009 the Central Authority of Latvia supplied the requested information. 28. On 15 March 2009, at the applicant’s request, the State Police instituted criminal proceedings for abduction of the child, without bringing charges against any particular suspect. The Central Authority was informed thereof. 29. On 6 April 2009, referring to the problems of execution of the court order in the applicant’s case, the Ministry of Justice set up a working group with the aim of proposing the necessary amendments to the laws concerning execution of court orders in similar cases. 30. In this connection the Ombudsman noted that in the absence of specific legal regulation concerning the execution of return orders, the execution should not take place in an arbitrary and violent manner, or in the absence of representatives of the Orphans’ Court. 31. On 20 April 2009 Rīga City Zemgale District Court dismissed the applications of the bailiff and the applicant concerning the delay in the execution of the return order. 32. On 30 April 2009 following a request submitted by the applicant’s representative, the Prime Minister of the Republic of Latvia ordered a disciplinary investigation into the legality of the actions of the Central Authority of Latvia. 33. On 27 May 2009 the investigation reached the conclusion that the Central Authority of Latvia had acted within its competence. However, it noted that in Latvia there was not sufficient regulation in order to be able to avoid the violent and traumatic execution of court orders in similar cases. The investigation therefore proposed that a number of related issues be examined by the Ministry of Justice. 34. In September 2009 the Family Court of Australia discharged all prior orders relating to the parents’ rights and, inter alia, ruled that T. was the person with sole parental responsibility for the child, and that the applicant was restrained from discussing publicly any information referring to the child or T. It also ruled that the applicant could visit the child under supervision of a social worker, and that until the child reached the age of eleven the applicant was restrained from attending or communicating by any means with any child-care facility, pre-school or school attended by the child or with a parent of any other child attending the same institution. She was also prohibited from speaking to the child in Latvian. 35. Section 644.19 regulates matters regarding the unlawful movement of children across borders to Latvia. It provides the following procedural safeguards for abduction proceedings. 36. A court shall adjudicate an application in a court hearing in which the parties shall participate. The court shall invite a representative of the Orphans’ Court, as well as ascertain the point of view of the child if he or she can formulate it. 37. In adjudicating the application, the court shall request evidence of its own motion. The court shall use the most appropriate procedural means, as well as the quickest ways of acquiring evidence, in order for a decision to be taken within a period of six weeks after the submission of the application. 38. If the court determines that the child has been unlawfully moved to Latvia or detained in Latvia, it shall take a decision regarding the return of the child to the State which is his or her place of residence, if one of the following cases applies: 41. By virtue of section 17, the Orphans’ Court defends the personal and property interests and rights of children and other persons lacking capacity to act. 42. The Hague Convention on the Civil Aspects of International Child Abduction: The removal or the retention of a child is to be considered wrongful where - a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State. The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years. Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child. Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that - a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence. In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognised or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable. The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination. A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue. 43. Section 61B defines parental responsibility as “all the duties, power, responsibilities and authority which, by law, parents have in relation to children”. 44. Section 61C provides that each of the parents of a child who is not 18 has parental responsibility for the child. It has effect subject to court orders. 45. Section 111B incorporates the provision of the Hague Convention and provides that for the purposes of the Convention: (a) each of the parents of a child should be regarded as having rights of custody in respect of the child unless the parent has no parental responsibility for the child because of any order of a court for the time being in force; and (b) subject to any order of a court for the time being in force, a person: (i) with whom a child is to live under a parenting order; or (ii) who has parental responsibility for a child under a parenting order; should be regarded as having rights of custody in respect of the child; and (c) subject to any order of a court for the time being in force, a person who has parental responsibility for a child because of the operation of this Act or another Australian law and is responsible for the day-to-day or long-term care, welfare and development of the child should be regarded as having rights of custody in respect of the child; and (d) subject to any order of a court for the time being in force, a person: (i) with whom a child is to spend time under a parenting order; or (ii) with whom a child is to communicate under a parenting order; should be regarded as giving a right of access to the child.