ECHR Grand Chamber – Article 8-1
Respect for family life
Failure to conduct detailed examination of all relevant points when deciding whether to return a child pursuant to Hague Convention: violation
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 her native Latvia. T. then filed a claim with the Australian courts seeking to establish his parental rights in respect of the child, alleging that the applicant had taken the child without his consent when leaving Australia, contrary to the Hague Convention on the Civil Aspects of International Child Abduction. The Australian courts 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. When the competent Latvian authorities received notification from the Australian authorities, they heard representations from the applicant, who contested the applicability of the Hague Convention on the ground that she had been the child’s sole guardian. The Latvian courts granted T.’s request, concluding that it was not for 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. 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 the supervision of social services and was not allowed to speak to her in Latvian.
In a judgment of 13 December 2011 (see Information Note 147), a Chamber of the Court concluded, by five votes to two, that there had been a violation of Article 8 of the Convention, considering that the failure to conduct an in-depth examination of all relevant factors when the Latvian courts decided that the applicant was to return her daughter in application of the Hague Convention had rendered that interference disproportionate.
Law – Article 8: The Court was called on to examine whether the interference with the applicant’s rights under Article 8, resulting from the decisions of the national courts, had been ‘necessary in a democratic society’. To that end, the Court reiterated that, in determining whether the decisions of the national courts had struck the fair balance that must exist between the competing interests at stake – those of the child, of the two parents, and of public order – within the margin of appreciation afforded to States in such matters, the best interests of the child had to be of primary consideration. In that connection, in order to achieve a harmonious interpretation of the European Convention and the Hague Convention, the factors capable of constituting an exception to the child’s immediate return in application of Articles 12, 13 and 20 of the said Convention had, first of all, genuinely to be taken into account by the requested court, which had to issue a decision that was sufficiently reasoned on this point, and then to be evaluated in the light of Article 8 of the European Convention. It followed that Article 8 of the Convention imposed on the domestic authorities a procedural obligation, requiring that, when assessing an application for a child’s return, the courts had to consider arguable allegations of a ‘grave risk’ for the child in the event of return and make a ruling giving specific reasons. As to the exact nature of the ‘grave risk’, the exception provided for in Article 13 (b) of the Hague Convention concerned only the situations which go beyond what a child could reasonably bear.
In the present case, the Court noted that, before the Latvian courts, the applicant had adduced several factors to establish that the child’s return to Australia would entail a ‘grave risk’ for her child; she had also submitted that T. had criminal convictions and referred to instances of ill-treatment by him. In particular, in her appeal pleadings, the applicant had submitted a psychologist’s certificate concluding that there existed a risk of trauma for the child in the event of immediate separation from her mother. Although it was for the national courts to verify the existence of a ‘grave risk’ for the child, and the psychological report was directly linked to the best interests of the child, the regional court had refused to examine the conclusions of that report in the light of the provisions of Article 13 (b) of the Hague Convention. At the same time, the national courts had also failed to deal with the issue of whether it was possible for the mother to follow her daughter to Australia and to maintain contact with her. As the national courts had failed to carry out an effective examination of the applicant’s allegations, the decision-making process under domestic law did not satisfy the procedural requirements inherent in Article 8 of the Convention, and the applicant had therefore suffered a disproportionate interference with her right to respect for her family life.
Conclusion: violation (nine votes to eight).
Article 41: no claim for damages submitted.
(See also Maumousseau and Washington v. France, 39388/05, 6 December 2007, Information Note 103, and Neulinger and Shuruk v. Switzerland [GC], 41615/07, 6 July 2010, Information Note 132)
27853/09 – Grand Chamber Judgment, [2013] ECHR 1172, 27853/09 – Legal Summary, [2013] ECHR 152
Bailii, Bailii
European Convention on Human Rights 8-1
Human Rights
Citing:
Cited – In Re B (A Minor)(Child Abduction: Consent) CA 9-May-1994
A six year old boy, had lived in Western Australia all his life. Shortly prior to his removal from Australia, the mother had left Australia to live in Wales. The maternal grandmother asked the father for permission to take the child to Wales to . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Children
Updated: 26 November 2021; Ref: scu.518451