25 Sep Application of the Hague Convention on the Civil Aspects of International Child Abduction

In the case of Andersena v. Latvia (application no. 79441/17, 19/09/2019) the European Court of Human Rights found violation of Article 6 – with respect to the right to adversarial proceedings and equality of arms of the European Convention on Human Rights.

The applicant, Kerija Andersena, is a Latvian national who was born in 1970 and lives in Riga. The case concerned Latvian court orders in proceedings under the Hague Convention that the applicant’s daughter should be returned to Norway where her father lived. Ms Andersena married a Norwegian citizen in 2013 and the couple had a daughter the same year. They all lived in Norway, however, the relationship deteriorated and the husband moved out of the family home in 2017. The applicant returned to Latvia in July of that year, taking the child with her.

The husband began proceedings to have the child returned to Norway under the Hague Convention on the Civil Aspects of International Child Abduction and he won an order to that effect from the Latvian courts. They ruled that Norway had been the child’s habitual place of residence, that the parents had had joint custody and that the applicant had taken her to Latvia without the father’s consent

Relying on Article 6 § 1 (right to a fair hearing) and Article 8 (right to respect for family life) of the Convention, the applicant complained that the Latvian courts had not taken proper account of her objections to the child being returned to Norway and had failed to provide proper reasoning. She also complained that the proceedings had been flawed, in particular because she had not taken part in the hearings at first instance and had not been represented by an authorised representative; that her request for an oral hearing during her appeal (ancillary-complaint proceedings) had been refused; and because she was had not been informed of the other party’s observations in the appeal proceedings. 

The Court agreed with the domestic court’s assessment that the applicant failed to formulate any circumstances that would need to be assessed at an oral hearing and thereby failed to sufficiently substantiate her application. The Court is also mindful of the fact that the applicant did not provide convincing justification for her absence from the first-instance court’s hearing. Accordingly, the decision of the Riga Regional Court to dispense with an oral hearing cannot be regarded as unjustified.

Regarding he applicant’s complaint that she was not informed of the other party’s submissions, the Court found that the failure to inform the applicant of the father’s submissions and her inability to respond to those submissions meant that she could not participate in the proceedings before the Riga Regional Court in conformity with the principle of equality of arms and the right to adversarial proceedings. There has therefore been a violation of Article 6 of the Convention.

Despite its findings with respect to Article 6, the Court did not consider that this procedural deficiency in the proceedings before the Riga Regional Court resulted in a failure to take the legitimate interests of the applicant and her daughter into account. Before the first-instance court, the applicant was able to present her case through her authorised representative, and before the appeal court she submitted an ancillary complaint and made several additional submissions. All the arguments which she put forward were genuinely taken into account by the domestic courts, and their decisions were sufficiently reasoned. On the basis of the documents put before it, the Court is satisfied that the domestic courts, within their margin of appreciation, struck a fair balance between the competing interests at stake, particularly taking into account that the best interests of the child must be the primary consideration. There has accordingly been no violation of Article 8 of the Convention.

References from the European Court of Human Rights