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Recourse has been had to expert evidence to assist in ascertaining the potential consequences of the child being separated from the taking leh Maumousseau and Washington v. In the context of a primary-carer taking parent refusing to return to the child’s State of habitual residence see: On 22 September a return petition was filed with the Latvian Central Authority.


The mother lley genuinely in a state of fear and could not be expected to return to Israel. Director General, Department of Families v. Furthermore, that they had disregarded her evidence concerning the best interests of the child and the fact that she was the child’s sole guardian at the time of the removal from Australia.

It was for the Court to review, in the light of the Convention, the decision taken by the national authorities in the exercise of their power of appreciation including, inter alia, the observance of the procedural requirements implicitly enshrined by Article 8 of the ECHR.

The Latvian courts had disregarded the psychologist’s report, the father’s financial difficulties and the child’s wellbeing in Australia. The Court held that in particular it had to assess whether the decision-making process leading to the interference was fair so as to safeguard the interests protected under Article 8 of the ECHR.

The mother was taken to Israel on false pretences, sold to the Russian Mafia and re-sold to the father who forced her into prostitution. She argued that the courts had erred in interpreting and applying the Hague Convention. She argued that in law and in practice she had been the child’s sole guardian prior to their departure from Australia and alleged that the father had mistreated them.

There was no evidence to suggest that returning to Australia would threaten the child’s safety as Australian legislation provided for the security of children and their protection against mistreatment within the family. Two judges dissented, holding that the application of the general principles in this matter, derived from the Convention mandates and the Court’s case-law, “should have led to a finding of no violation of the rights of the applicant recognised in Article 8 of the Convention”.


Author of the summary: The Court further stated that the Latvian courts had to decide whether the removal was wrongful, and so whether it had been carried out in breach of the rights of custody attributed to a person under Australian law, the State in which the child was habitually resident immediately before her removal.

INCADAT | X. v. Latvia (Application No /09)

The Court found that the Latvian courts had failed to take into account a range of factors raised by the mother in arguing that returning to Australia was not in the child’s best interests. It held that the Australian decision on the father’s parental responsibility was not subject to review by the Latvian courts and dismissed the mother’s claim that returning to Australia would expose the child to psychological harm.

The mother was permitted to visit the child under the supervision of a social worker. Case Law Search New search. Switzerland ha habido ejemplos en los que se ha adoptado un enfoque menos estricto.

Commonwealth Central Authority ; J. The lower court had also not enquired into the measures which would guarantee the child’s safety on being returned to Australia. Peter McEleavy, avril The situation with regard to infants was however more complicated.

Case Law Search

He executed the return order himself. They added that “it is not the job of this Court to take the place of the competent authorities in determining whether a decision concerning a child’s residence would expose him to psychological harm ibid. The ECrtHR stated that whilst very young age was a criterion to be taken into account to determine the child’s interest in an abduction case, it could not be considered by itself a sufficient ground, in relation to the requirements of the Hague Convention, to justify dismissal of a return application.

It would be wholly inappropriate to send the child back without his mother to a father who had been buying and selling women and running a prostitution business. United Kingdom – England and Wales C. However, the Court prohibited her from speaking to the child in Latvian and, until the child’s eleventh birthday, from communicating with any childcare facility, school or parent of a child attending the same institution. Peter McEleavy, abril de The mother continued to live in the father’s apartment as a tenant.

France In French case law, a permissive approach to Article 13 1 b has been replaced with a much more restrictive interpretation. The Court held that the special bond between mother and baby only made their separation possible in exceptional cases, and this was so even if there were no objective obstacles to the mother’s return to the State of habitual residence.

There had been a genuine threat to the mother, which had put her quite obviously and rightfully in fear for her safety if she returned to Israel.


In Australia, the mother would be unemployed and would not be able to support herself and the child. Furthermore, the mother pointed out that the child attended pre-school activities in Latvia and spoke Latvian as her native language. Primary Carer Abductions The issue of how to respond when a taking parent who is a primary carer threatens not to accompany a child back to the State of habitual residence if a return order is made, is a controversial one.

For examples of the initial approach, see: She also claimed that the father had previous convictions and had been charged with corruption, allegations which had not been investigated by the lower court. Commonwealth Central Authority; J. Maumousseau and Washington v. Our Court’s function in such matters is merely to verify whether the national authorities followed adequate procedures and conducted a balanced and reasonable assessment of the respective interests of each person ibid.

The Court was unconvinced by the Latvian courts’ conclusion that the psychological report could only be considered as part of a custody dispute and not in relation to return proceedings under the Hague Child Abduction Convention. The Latvian courts should at least have considered whether the mother could have accompanied the child to Australia and maintained contact.

For these reasons, the Court concluded that it could not be assumed that ordering the return of the child would place her in an intolerable situation. By a majority of five to two, the European Court of Human Rights held that Latvia had violated Article 8 of the ECHR in failing to take account of various relevant factors in assessing the best interests of the child.

Australia In Australia, early Convention case law exhibited a very strict approach adopted with regard to non-return arguments, see: Switzerlandthere are examples of a less strict approach being followed.

France, AB, 12 E. Furthermore, the mother had not appealed the Australian decision or challenged the evidence concerning the paternity of the child. The Court held that where the mother of an infant refused to return, whatever the reason, then the return order should be refused on the basis of Article 13 1 b.

On appeal, the mother relied on a psychologist’s report which stated that the child could suffer psychological trauma as a result of being separated from her mother. In Septemberthe Family Court of Australia awarded the father sole parental responsibility. See the decision of the Grand Chamber in this case dated 26 November HC article s Relied Upon.