TrustHLT/LaCour huggingface dataset:
GR2 (Government): And such actions, by definition, may not be in the best interests of the child.
GR2 (Government): In such situations, the states are called to resolve by legal means interpersonal conflicts between the parents that go far beyond the child's wrongful removal, conflicts that parents could not resolve, sometimes for protracted periods of time.
GR2 (Government): It is clear that in such situations, it is difficult, if not impossible, to fully comply with the best interests of all the parties to the proceedings.
GR2 (Government): First and foremost, because definitions provided by each party of what constitutes their best interests will most likely differ, if not be contradictory and mutually exclusive.
GR2 (Government): Therefore, in plain terms, the states, when considering what solution would be in the best interests of the child, are, in fact, seeking solutions that would do the least damage to the interests of the child.
GR2 (Government): Needless to say, that is a very difficult task, that in one way or another is meant to fail, as at least one party to the case will always be on the losing side.
GR2 (Government): In any events, emotions and associated sympathies related to the situation of the parents and the child, although unavoidable, should not take precedence over legally correct application of relevant domestic and international law.
GR2 (Government): Based on what I have just said, the government does not contest that decisions by a Latvian court, whereby the applicant was ordered to return the child to Australia, did amount to interference with her right to family life, as provided for by Article 8 of the European Convention.
GR2 (Government): It is beyond doubt, and the chamber of this court did not contest that, that this interference was in accordance with the law, as it was based on the provisions of the Hague Convention, and pursued legitimate aim of protecting the rights and freedoms of the child and her father.
GR2 (Government): Where the views of the parties to the present case and the chamber differ, is whether this interference with the applicant's family rights to family life was necessary in a democratic society.
GR2 (Government): The government remains firmly convinced of the necessity and proportionality of the interference.
GR2 (Government): It is very important to bear in mind that there must be a clear distinction drawn between the return proceedings and custody proceedings.
GR2 (Government): Aspects or evidence that could be important for custody proceedings may not have the same importance always in return proceedings, and vice versa.
GR2 (Government): The starting point in examining the case of international child abduction is replied to the following question.
GR2 (Government): Did the abducting parent have a good prima facie reason to leave the country of the child's habitual residence?
GR2 (Government): In the present case, for example, what prima facie reason did the applicant have that forced her to leave Australia, which is not only the state of her and her child's habitual residence, but also the state of her nationality, a state where she and her child enjoyed full social and legal protection?
GR2 (Government): Leaving aside the general impossibility to hold multiple nationalities under the Latvian law, as it was enforced at the material time, what type of protection and benefits Latvia could offer to the applicant that Australia could not?
GR2 (Government): The chamber concluded that the Latvian courts did not conduct an in-depth review of the entire family situation and did not take into account the conclusions provided in the report of the psychologist.
GR2 (Government): The government believes that this is a very simplified reading of the facts of the present case.
GR2 (Government): The government remains convinced that an obligation to conduct in-depth family situation assessment during return proceedings, as opposed to custody proceedings, is not absolute and should be considered only when there are prima facie concerns that return of the child may cause grave harm to the child's fundamental interests within the meaning of Article 13, Paragraph 1B of the Hague Convention.
GR2 (Government): I would like to particularly emphasize that Latvia's position on this matter is fully consistent with the state practice under the Hague Convention.
GR2 (Government): Also, the fact that the national court examining the case disagreed with the report submitted by the psychologist does not mean that the national court failed to consider this report.
GR2 (Government): Instead, it means that the national court found reasons that outweighed its argumentation provided by the psychologist in his or her report.
GR2 (Government): I would like to recall once again that, unlike the psychologist and the Strasbourg court, the competent national court, when examining the present case, had direct contact with both parents and therefore had a better overview of the situation.
GR2 (Government): The government of Latvia remains firm in its belief that it is an inherent power of the court to perform its own assessment of the facts and the applicable law in the case before it.
GR2 (Government): In the present case, Latvian courts were not convinced of the relevance of the findings contained in the psychologist's report because this report did not identify any risks to the vital interests of the child upon return to Australia, but rather addressed the relationship between the applicants and the child.
GR2 (Government): The Strasbourg court itself has recognized the need to distinguish the close relationship that exists between the parent and the child and the risk related to the weakening or breaking this relationship from the situation of a well-founded risk to the child's fundamental interests covered by Article 13, paragraph 1b of the Hague Convention.
GR2 (Government): Also, one should not lose sight of the need to conduct return proceedings expeditiously.
GR2 (Government): The time constraint may also leave impact on the length of the national court's judgments, which may be more succinct.
GR2 (Government): In the light of the above, it cannot be said that Latvian courts automatically or mechanically ordered the return of the applicant's daughter to Australia.
GR2 (Government): The national courts took the decision after carefully reviewing the facts of the case and hearing both parties.
GR2 (Government): Line of assessment followed by the Latvian courts in the present case complied with the general practice followed by national courts in the international child abduction proceedings.
GR2 (Government): The government would like to recall the wide margin of appreciation enjoyed by states in performing their obligations deriving from Article 8 of the European Convention.
GR2 (Government): We recognize the fundamental role played by the Strasbourg courts in assessing the extent of states' compliance with the conventional obligations.
GR2 (Government): At the same time, we are of the view that the role of the Strasbourg courts is to assess the case as a whole.
GR2 (Government): The crucial nuance of this approach, especially in the cases like the present one, is that the court, the Strasbourg court, should evaluate whether the outcome of the national proceedings led to the situation compatible with the Convention.
GR2 (Government): In our view, it is beyond doubt the national courts came to the right conclusion.
GR2 (Government): Should the court, however, decide to criticize any aspects of the reasoning of the Latvian courts, the governments would then invite the court to assess whether the shortcomings permitted by national courts were of such a nature as to allow a child's return in a situation where it should not have been permitted.
GR2 (Government): Should the courts believe that the child's return was rightful, which indeed it was, then criticism of some aspects of the national court's reasoning would be superfluous.
GR2 (Government): In this context, I would like to note that when applying Article 8 of the European Convention, the national authorities are faced with inconsistencies of the court's case law on the subject of international child abduction.
GR2 (Government): Thus, what's in the present case has been considered a violation of Article 8 of the European Convention.
GR2 (Government): In other cases, such as MR and ELR versus Estonia, or Tarkhanova versus Ukraine, has been considered a manifestly ill-founded application.
GR2 (Government): Finally, the chamber of the courts, in finding a violation of Article 8 of the European Convention by Latvia in the present case, took particular note of the decision by Australian court, which was taken more than six months after the proceedings before Latvian courts were concluded.
GR2 (Government): The question is whether and how far Latvian courts or any other national authority could have or should have predicted that such a decision would be taken by Australian court.
GR2 (Government): The government does not contest that in some cases, the Strasbourg court should be able to take into account subsequent developments in a case.
GR2 (Government): However, such considerations should be limited to developments in cases that are under control of the respondent state authorities.
GR2 (Government): Otherwise, the respondent state will be called to answer for actions of third states.
GR2 (Government): It should be further noted that the chamber overlooked the fact that the decision of Australian court was taken in response to the extreme behavior by the applicants, who falsely accused the father of various crimes, including against the child of the applicants.
GR2 (Government): And this decision of Australian courts were taken in view of the well-grounded reasons that the applicant would flee again.
GR2 (Government): It should be further emphasized that, similarly to the proceedings before Latvian courts, the applicant again attempted to mislead the national authorities, this time in Australia, by providing false information on the factual and legal circumstances of the case.
GR2 (Government): Moreover, the Australian authorities established that the applicants attempted to manipulate the child's opinion about the father.
GR2 (Government): Should, however, the grand chamber decide to follow the chamber and examine developments in the present case that have taken place after the end of the proceedings before the Latvian courts, then the government of Latvia draws the court's attention that both the applicant and her daughter are currently residing in Australia.
GR2 (Government): They maintain regular contact.
GR2 (Government): And the applicant is gainfully employed and has housing.
GR2 (Government): Finally, the government notes the criticism that met the chamber judgment, given the far-reaching conclusions contained in this judgment that significantly limit the application of the principles contained in the Hague Convention, thus rendering the latter instrument almost irrelevant.
GR2 (Government): We hope the grand chamber will use the opportunity to clarify the court's approach towards the interaction between the Hague Convention and the European Convention, and will eliminate inconsistency and lack of clarity in the Strasbourg court's case law.
GR2 (Government): The government invites the court to conclude that the applicant did not suffer from disproportionate interference by the Latvian authorities with her rights with respect for family life, guaranteed by Article 8 of the Convention.
GR2 (Government): And therefore, the present application should be dismissed as manifestly ill-founded, pursuant to Article 35, paragraphs 3 and 4 of the Convention.
GR2 (Government): In the alternative, for the same reasons, the government invites the court to conclude that there has been no violation of Article 8 of the Convention in the present case.
Nicolas Bratza (JudgeP): Thank you very much, Ms. Līce.
Nicolas Bratza (JudgeP): We've come then to the end of the first round of submissions.
Nicolas Bratza (JudgeP): I'd like to ask at this stage whether any of the judges would like to put any questions to either of the parties.
Nicolas Bratza (JudgeP): That...
Nicolas Bratza (JudgeP): Please, Judge Hirvelä.
Päivi Hirvelä (Judge): I would like to ask the applicant the confirmation of the information we heard from the government.
Päivi Hirvelä (Judge): The representative of the government said about the current situation of the applicant that she is now in Australia, she has regular contact to the child and she has also worked there. What's the situation and has the mother lodged any request to review the custody and
Päivi Hirvelä (Judge): meeting rights in Australia and furthermore, has the mother the right to lodge such a reviewing case in Australia according to the law in Australia? Thank you.
Nicolas Bratza (JudgeP): Thank you very much, Judge Kalaydjieva.
Zdravka Kalaydjieva (Judge): Thank you, Mr. President.
Zdravka Kalaydjieva (Judge): I would like to pose a question to the respondent government's representatives.
Zdravka Kalaydjieva (Judge): In your view, the interference with the applicant's rights was performed in accordance with the law.
Zdravka Kalaydjieva (Judge): When you say this, do you refer to the decisions of the courts, or do you actually involve the de facto return of the child to Australia?
Zdravka Kalaydjieva (Judge): If you refer also to the de facto return of the child, what was the legal ground?
Zdravka Kalaydjieva (Judge): And what do you mean by in accordance with the law in these circumstances?
Nicolas Bratza (JudgeP): Thank you very much. Judge Ziemele.
Ineta Ziemele (Judge): I have a very short question, in fact, to both parties.
Ineta Ziemele (Judge): Maybe you could clarify, because if I understand correctly, the decision in Australia after the applicant and the child had left, the Australian courts attributed parental responsibility as from the moment of birth of the child.
Ineta Ziemele (Judge): Could you provide an information to the court is parental responsibility, in a sense of the decisions in Australia, the same as in the Hague Convention Article 3, the custody rights of the parents?
Nicolas Bratza (JudgeP): I'm going to let Judge Spielmann please.
Dean Spielmann (Judge): Yes, I have a question to both parties.
Dean Spielmann (Judge): I would like the parties to comment on Article 20 of the Hague Convention, which provides as follows.
Dean Spielmann (Judge): I quote, I read it out.
Dean Spielmann (Judge): The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested state relating to the protection of human rights and fundamental freedoms.
Dean Spielmann (Judge): Would this be relevant in this case?
Dean Spielmann (Judge): And it's a question which I address to both parties.
Nicolas Bratza (JudgeP): That doesn't seem to be the case.
Nicolas Bratza (JudgeP): Having regard to the number of questions put, I propose to adjourn for 15 minutes.
Nicolas Bratza (JudgeP): Adjourn the hearing for 15 minutes.
Nicolas Bratza (JudgeP): The hearing is resumed and I give the floor to Mr. Strauss. Mr. Strauss, please.
AP1 (Applicant): I will start with the first question about the current situation right now in Australia in this particular case.
AP1 (Applicant): I spoke with applicant and she said nothing have changed since September 4, 2009.
AP1 (Applicant): There is same restrictions as before except she's allowed to meet a child in inspection center without supervision and she's able to call her daughter twice a week.
AP1 (Applicant): That's it.
AP1 (Applicant): I understood the question correctly.
AP1 (Applicant): Just ask about the current situation and nothing have changed.
AP1 (Applicant): The question two, was a decision Australia court wanted to prove that T has parental rights since birth of the child and T was competent to submit application for prompt child return to Australia.
AP1 (Applicant): Court approved T parental rights but as I said in my speech before removal, he refused to prove his parental rights.
AP1 (Applicant): The third question, during the procedure under the Hague Convention, it is impossible to predict whether other country will ensure all the fundamental rights.
AP1 (Applicant): It is not anymore up to us to change the situation and it's clearly we can see that Australia with its decisions clearly while it's fundamental rights of mother and child.
Nicolas Bratza (JudgeP): Thank you very much. Mr. Strauss, I don't know whether you wish to respond at all to the observations of the government.
Nicolas Bratza (JudgeP): You don't. Thank you very much.
Nicolas Bratza (JudgeP): Then I call Ms. Līce. Oh, I call Ms. Reine.
GR1 (Government): Good morning, distinguished judges.
GR1 (Government): I must admit we find ourselves in a bit different, a bit difficult situation.
GR1 (Government): I have to reveal that to the court since we have an update on the applicant situation, but unfortunately we did not have the permission from both parties under the Australian law to reveal some aspects of the present case.
GR1 (Government): But given that we see that the applicant again is manifestly misleading the court, I'm afraid I'm contempt to reveal some of the current facts of the case to give you an insight of the situation.
GR1 (Government): I will start with the update on the current situation of the applicant since this is obviously of interest to the judges, and since obviously the applicant is again attempting to mislead this court.
GR1 (Government): The applicant has the right under the Australian law to request a revision of her parental arrangements with the child.
GR1 (Government): She has already done so.
GR1 (Government): There will be a hearing before the Australian court in two days, the day after tomorrow.
GR1 (Government): The applicant's representative has referred in his statement to the affidavit provided before the Australian court just in September this year, which in itself confirms in the applicant's own word that the proceedings are currently pending.
GR1 (Government): Unfortunately, we do not have the affidavits of the other party.
GR1 (Government): We have some references on the current situation of the applicant, which seems to be of regular context with the child, the housing, the job.
GR1 (Government): The only, I'm afraid, way I can refer to the current proceedings is to refer to the already existent precedent and very detailed address in the Australian court's judgment of September 2009, which in very detail rebuts the applicant allegation about the father, the false allegation of committing crimes.
GR1 (Government): It contains references to the psychologist's reports demonstrating that the mother is trying to manipulate the opinion of her daughter about the father, that she is inventing unsubstantiated claims of sexual abuse, that she is providing false information concerning the legal circumstances of the case in Latvia, including that in 2009, she attempted to convince the Australian court that there were no proceedings taking place in Latvia, that the decisions of the Latvian courts were forgery.
GR1 (Government): In these circumstances, again, as I have said, given that we are prevented from revealing the current affidavits of the parties to the Australian courts, I can only call on the judges to look at the factual information as found in the judgment of 2009, and I may only apologize for this unfortunate situation.
GR1 (Government): I would then like to reply to the court's question concerning the interference and compliance with the law of the decisions, and again, we refer to the decisions by the Latvian courts that were adopted in compliance with both national and international law.
GR1 (Government): This case has not referred, and this was not part of this case from day one, the factual removal of the child from the territory of Latvia, which indeed has happened in quite traumatic and unfortunate circumstances, but again, I must draw your attention that this situation has been provoked by extremely uncooperative and hostile attitude taken by the mother, preventing any context, including supervised context, between the father and the child.
GR1 (Government): In no way we're justifying the behavior of the father, but we are reviewing the legality and proportionality of the decisions of Latvian courts, and not the behavior of the father, since this is not subject to this case.
GR1 (Government): Referring to the question posed concerning the compliance of the Australian law with Article Three of the Hague Convention, the only thing I may say today, but if the court is willing, we will provide this reply also in writing, that the Latvian authorities relied on the presumption not rebutted, I must admit, not rebutted by the applicant herself, contained in the request of the Australian authorities that the father had parental responsibility and had the right to take important decisions concerning life of the child.
GR1 (Government): And I must quote the paragraph from the judgment, which I think very well describes the situation, the chamber's judgment in the present case.
GR1 (Government): The applicant had failed to appeal against the decision of the Australian Family Court and substantiate her allegation that he was not the biological father of the child.
GR1 (Government): And this is the presumption relied upon by the Latvian courts that the father of the child effectively exercised parental authority over the child within the meaning of Article Three of the Hague Convention.
GR1 (Government): When referring to the question by distinguished Judge Spielman concerning the fundamental guarantees provided by the national law against the removal, yes, there are a number of fundamental guarantees in the present case.
GR1 (Government): And this court has already seen other cases that indeed the Latvian courts do check normally whether there are substantive, whether there are any arguable claim, and I must make an emphasis on the word arguable claim of any threats to fundamental interests of the child.
GR1 (Government): But in case there is no arguability, an obvious prima facie arguability of such claim, it would be irrelevant to make a detailed assessment of the fundamental interests that may be endangered since apparently as in the present case there are no such interests.
GR1 (Government): But again, as the examples of the national case law that we have provided to this court demonstrate that the national courts do examine whether there are any arguable threats to the best interests of the child in the return proceedings.
GR1 (Government): Yes, I think I will stop here and I will pass the floor if the court allows me to, Ms. Glita, thank you.
Nicolas Bratza (JudgeP): Please, Ms. Līce.
GR2 (Government): Thank you. I will very briefly respond to the statement by the representative
GR2 (Government): of the applicants. And two points I'd like to make. First of all, the applicant's
GR2 (Government): representative referred to the facts that are outside the scope of the present case as examined by the Strasbourg court. In our submission, we presented the legal aspects
GR2 (Government): of the case and comparing the information contained in the applicant's statement. As
GR2 (Government): I said, we believe that those facts in their statement go far beyond the scope of the present case. The second point I'd like to make is that a person cannot abuse the rights provided
GR2 (Government): in the Hague Convention and the European Convention. As we have mentioned in our statements on
GR2 (Government): the Hague Convention, during all proceedings before national courts, both in Latvia and in Australia, and also during the proceedings before this Court, the applicant has attempted to provide false information, has attempted to mislead the Court, and has also attempted to provide evidently false information against the father of the child. As I said, we strongly believe that such behavior is not acceptable, and neither
GR2 (Government): the Hague Convention nor the European Convention on Human Rights can be abused in such a way, and a person should not be able to claim rights derived from such an abuse of international instruments.