If a child is abducted by one of his or her parents into another country that has signed the Hague Convention on the Civil Aspects of International Child Abduction, then the other parent can apply for the child to be returned. The application is dealt with by the family court of the country into which the child was abducted.
In considering the application, the court has to tread a fine line. On the one hand, it should not look too deeply into the case as any final decision on arrangements for the child is up to the courts of the country from which the child was abducted, assuming, that is, a return is ordered in the first place. On the other hand, those initial courts do need to look deep enough into a case to determine whether or not the child should be returned to the other country.
This was the issue in the recent European Court of Human Rights case X v Latvia.
The case involved a woman (‘Ms X’) of Latvian origin who moved to Australia and acquired Australian nationality in 2007.Earlier, in 2005, she had given birth to a child while she was living with a man (‘T’) in Australia, although T was not registered as the child’s father on her birth certificate.
The relationship between Ms X and T broke down and in July 2008 she left Australia and returned to Latvia, taking the child with her.
T then obtained an order in the Australian Family Court recognising that he was the child’s father and holding that he and Ms X had had joint parental responsibility for the child since her birth. A request for the child’s return to Australia under the Hague Convention was then sent to the Latvian authorities.
The Latvian court granted the request and ordered that the child be returned to Australia immediately. Ms X appealed, but the decision was upheld. Eventually, the child was returned to Australia.
Ms X made an application to the European Court of Human Rights, claiming that the decision of the Latvian courts had breached her right to respect for private and family life, under Article 8 of the Convention for the Protection of Human Rights. Her application was upheld by the lower Chamber of the European Court, and the Latvian Government then requested that the case be referred to the Grand Chamber – in other words they appealed.
The Grand Chamber held that Ms X’s right to family life had been violated, because the Latvian court had failed to properly consider Ms X’s claim that there was a grave risk that the child would suffer harm if she was returned to Australia.
Within its judgment the Grand Chamber gave guidance on how deep a court’s investigation should be when considering whether or not to order the child’s return. Essentially, it should only be deep enough to cover the requirements of the Hague Convention (for example, considering the “grave risk” allegation) and to ensure compliance with the Human Rights Convention.
Why is this decision important? Because it is essential that children who have been abducted are returned to their ‘home’ country as soon as possible, and many have feared that lengthy proceedings in the court of the country to which they are abducted will lead to serious delays. Such delays can thwart the whole purpose of the Hague Convention.
The UK is, of course, a participant in to the Hague Convention (you can find a current list of countries that are signed up to the Convention here), so the principles of this case apply just as much in this country. It should hopefully mean that, whether you are seeking the return from another contracted country or opposing a return order in our courts, the matter is dealt with as quickly as possible, whilst still ensuring that return orders are only made where appropriate.
If you read the travaux preparatoirs to the Convention you find that the paradigm case they had in mind was the wicked father grabbing the children outside school. But from the beginning there have been more cases involving mothers who want to go home and just take the children with them, probably without thinking that there is any reason why they should not. Most fathers accept the fait accompli and it is the ones who don’t who provide most of the litigation under the Convention. I hope this decision does not thwart them.