EHRM, 26-11-2013, nr. 27853/09

The Chamber held that the provisions of the domestic law and the Hague Convention indicated in a sufficiently clear manner that, in ascertaining whether the removal was wrongful within the meaning of Article 3 of the Hague Convention, the Latvian courts had had to decide whether it had been carried out in breach of the custody rights as attributed under Australian law, Australia being the State in which the child was habitually resident immediately prior to her removal. While noting that the Australian authorities had ruled on T.'s parental responsibility after the child's removal, it observed that it had merely been confirmed, and not established, that the applicant and T. had enjoyed joint parental responsibility from her birth by virtue of the Australian Family Law Act. The Chamber further noted that the applicant had not been prevented from participating in the proceedings in Australia leading to the above-mentioned ruling or from submitting an appeal and, in addition, that she had not challenged before the national courts the evidence adduced to demonstrate that T. was the child's father. The Chamber assumed that the Latvian court's decision of 19 November 2008 ordering the child's return to Australia, which had become enforceable on 26 January 2009, had been in accordance with the law within the meaning of Article 8 of the Convention.

According to the court's settled case-law, the expression ‘in accordance with the law’ not only requires that the impugned measure should have some basis in domestic law, but also refers to the quality of the law in question, requiring that it should be accessible to the person concerned and foreseeable as to its effects (see, among many other authorities, Amann v. Switzerland [GC], no. 27798/95, § 50, ECHR 2000-II; Slivenko v. Latvia [GC], no. 48321/99, § 100, ECHR 2003-X; and Kurić and Others v. Slovenia [GC], no. 26828/06, § 341, ECHR 2012-…).

The Court observes that the decision to return the child to Australia was taken by the Riga Regional Court on the basis of the Hague Convention of 1980, a text signed and ratified by Latvia in 1982. Furthermore, the Latvian Civil Procedure Act, section 644 of which governs matters regarding the unlawful removal of children across borders into Latvia, makes its application conditional on express compliance with the Hague Convention, Brussels II bis Regulation and the European Convention on Human Rights.

The applicant alleged that at the time of her departure from Australia she had been alone in exercising parental responsibility for her daughter.

The Court notes, however, that that issue was expressly examined by the Latvian courts dealing with the application for the child's return. Those courts, while stating that they could neither interpret nor alter it, applied the Australian Family court's decision of 6 November 2008, which confirmed T.'s paternity and the existence of joint parental responsibility for the child from her birth. In consequence, both the District Court and the Riga Regional Court found that T.'s application complied with the Hague Convention in this respect.

Moreover, the Court considers that it is not for it to decide whether the international removal of a child was or was not ‘unlawful’ within the meaning of Article 3 of the Hague Convention. Indeed, it is not the court's function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I): it is for the domestic courts to resolve problems of interpretation and application of domestic legislation, and of rules of general international law and international treaties (see Maumousseau and Washington v. France, no. 39388/05, § 79, 6 December 2007, and Neulinger and Shuruk, cited above, § 100). In the instant case, the applicant, in addition to failing to exercise the available remedies to challenge the Australian decision confirming T.'s paternity and the existence of joint parental responsibility for the child at the time of her departure from Australia, which was a direct precondition for application of the Hague Convention, has not shown either that it was impossible for her to challenge the Australian decision or how the domestic courts had erred in that respect.

In conclusion, the Court considers that the impugned interference was in accordance with the law within the meaning of Article 8 of the Convention.

The Chamber considered that the interference was intended to protect the rights of T. and of the child, which was a legitimate aim for the purposes of Article 8 § 2 of the Convention.

The Grand Chamber shares the Chamber's opinion that the decision to order the child's return had the legitimate aim of protecting the rights and freedoms of T. and of E., which, moreover, has not been challenged by the parties in these proceedings.

The applicant considered the Chamber judgment as an exemplary text for assisting domestic authorities in ascertaining the best interests of the child. She noted that, while the Government had expressed regret in their request for referral to the Grand Chamber that the Chamber had not had available to it all the documents in the case file as examined by the domestic courts, it had been their responsibility to submit those documents. She argued that the best interests of the child had not been the goal of the domestic authorities, and considered that psychological reports were the only method of determining the child's best interests; in this case, however, the domestic courts had refused to examine the psychological report submitted by her, thus violating Article 12 of the International Convention on the Rights of the Child (hearing of the child, either directly or through a representative or appropriate body). She emphasised that in determining the ‘best interests’, consideration was generally given to a number of factors related to the child's circumstances and to the circumstances and capacity of the child's potential carers, with the child's safety and well-being as the paramount concern.

The applicant added that, in applying to the Court, her main goal was to challenge the domestic courts' position in various cases relating to the 1980 Hague Convention and to demonstrate the necessity of ensuring the best interests of the child.

The Government noted that the Court imposed a number of obligations on the domestic authorities, and in particular: ensuring that the parents were involved in the decision-making process to a degree sufficient to provide them with protection of their interests (Iosub Caras, cited above, § 41), preventing further harm to the child or prejudice to the interested parties, as stipulated by Article 7 of the Hague Convention (ibid., § 34, and Ignaccolo-Zenide v. Romania, no. 31679/96, § 99, 25 January 2000), ensuring urgent handling of proceedings relating to the return of an abducted child, including enforcement of the decisions taken (Carlson v. Switzerland, no. 49492/06, § 69, 6 November 2008), and providing redress to the requesting parent in the event of failure to comply with the six-week deadline provided for in Article 11 of the Hague Convention (ibid., § 55).

They considered that these principles should be applied in a manner that would ensure to the maximum extent a balance between the rights of each parent and of the child. Nonetheless, they noted the difficulty of the domestic authorities' task when faced with the international abduction of a child, which did not always allow for protection of the best interests of all parties, and especially those of the child, each party having a different, if not contradictory, definition from that of the others. They further insisted on the clear distinction to be drawn between return proceedings and custody proceedings.

The Government considered that the domestic authorities enjoyed a margin of appreciation in applying those principles to the circumstances of each case. The court's task was not to analyse every detail of the domestic proceedings, but to review whether the decision-making process, seen as a whole, had provided the individuals concerned with the requisite protection of his or her interests (Diamante and Pelliccioni v. San Marino, no. 32250/08, § 187, 27 September 2011), since the Court was not a court of fourth instance. Consequently, it could only be otherwise if the shortcomings observed had been decisive for the outcome of the case (Broka v. Latvia, no. 70926/01, §§ 25–26, 28 June 2007).

In the instant case, they were of the opinion that the domestic authorities had complied with the above principles and had conducted an ‘in-depth examination of the entire family situation and of a whole series of factors’ (Neulinger and Shuruk, cited above, § 139), but that the examination of the overall family situation had to differ depending on the case, depending on the existence or not of prima facie concerns or at least of reasonable doubts. Moreover, the risk provided for in Article 13 (b) had to be ‘grave’, in addition to the fact that the child's best interests also required expeditious proceedings.

The Government stated that the request submitted by the Australian authorities to the Latvian authorities on 15 September 2008 certified that T. had joint parental authority for the child and that, contrary to the applicant's submissions, the decision of 6 November 2008 did not confer this right on him, but confirmed its existence at the time of his daughter's departure from Australia. Both the Australian and Latvian courts had established that T. effectively exercised his parental responsibilities, that there were sufficient grounds to presume that T. was the child's biological father and that the applicant, for her part, had made false statements to the authorities in order to obtain advantages.

They pointed out that the psychological report had been drawn up on a private basis at the applicant's request, and that the Bāriņtiesa was not a judicial institution. Notwithstanding the dismissal of the psychologist's report and the observations from the Bāriņtiesa, the courts had examined the family situation in the light of the evidence available to them, which was an inherent part of their jurisdiction, there being nothing in the court's case-law to call into question that power. The Latvian courts had found that the applicant's departure from Australia with her daughter had been motivated solely by her personal disagreements with T. and that there was no apparent risk of harm to the child in the event of return; it followed that the Latvian authorities had not applied the Hague Convention automatically or mechanically, in disregard of the principles established by Article 8 of the Convention.

The Government emphasised that ‘the understanding and cooperation of all concerned are always important ingredients’ in evaluating the individual circumstances of a case (Maumousseau and Washington v. France, cited above, § 83, and Neulinger and Shuruk, cited above, § 140). They considered, however, that the applicant had demonstrated a lack of cooperation with the Australian and Latvian authorities by ignoring the invitation to take part in the proceedings before the Australian court, by preventing the representatives of the Bāriņtiesa from assessing her living conditions with her daughter in Latvia, by hindering contacts between T. and his daughter and by her extremely aggressive conduct towards T. during the proceedings.

They also considered that the courts had been correct in dismissing the question of the child's integration into her new environment, given that she had spent only a few months in Latvia.

They noted that the courts had not ordered the child's return to her father, but to Australia, thus drawing a clear distinction between the return of the child and the issue of her custody, an approach that had been endorsed by the Court (M. R. and L. R. v. Estonia (dec.), no. 13420/12, §§ 47–48, 15 May 2012, and Tarkhova v. Ukraine (dec.), no. 8984/11, 6 September 2011). In any event, T.'s financial situation was not such as to prevent him from caring for his daughter.

The Government emphasised the need to distinguish the issue of the applicant's relationship with the child, and the risk of this relationship being weakened in the event of return, from the question of a risk to the child's fundamental interests within the meaning of Article 13 (b) of the Hague Convention. As an Australian citizen, the applicant was not faced by insurmountable difficulties if she returned to Australia, since she enjoyed the full spectrum of fundamental rights, in contrast to the applicants in the case of Neulinger and Shuruk (cited above). In the present case, both the child and the mother had Australian citizenship; moreover, the mother had access to the labour market, given that she had found a job since her return, and could have access to social benefits. There was no history of family violence or abuse of authority on the part of T., whereas the applicant had demonstrated a lack of cooperation and an aggressive attitude. Lastly, the Government drew the court's attention to the fact that they could not be held responsible for the decisions taken by the Australian authorities (they referred to M. R. and L. R., cited above).

The Government noted that the 1980 Hague Convention was based on the best interests of the child and was aimed at protecting the child from the detrimental effects of the abduction, while laying down a number of grounds for refusing a return. They emphasised that Article 11 of the Brussels II bis Regulation, applicable within the European Union, narrowed down even further the exceptions to the child's return, and reflected the view of the EU Member States that the effectiveness of the Hague Convention served the best interests of children and families. They further referred to the United Nations Convention on the Rights of the Child.

With regard to the instant case, they considered, in particular, that the obligation on the domestic courts deciding on a child's return to conduct an ‘in-depth examination of the entire family situation’, as the Chamber required in its judgment, contradicted the Hague Convention, which provided that matters concerning custody or residence of the child came under the jurisdiction of the courts of the child's place of habitual residence.

Moreover, they considered that the domestic courts were best placed to assess the child's best interests: the Court ought not to take their place, but merely verify whether the requirements of Article 8 had been satisfied. Requiring such an in-depth examination would ultimately level out the differences between the procedure for return and custody proceedings, which would frustrate the meaning of the Hague Convention. They emphasised that the latter text provided for exceptions to the return of the child in Articles 12, 13 and 20.

With regard to the psychological report to which the domestic courts had not, according to the Chamber judgment, attached sufficient importance, the Government noted that it had been submitted by the mother to demonstrate the existence of a grave risk in the event of return within the meaning of Article 13 of the Hague Convention. In finding those allegations unfounded, the appeal court had dismissed them under Article 13 of the Hague Convention, within the margin of discretion permitted by and in line with the objective pursued by the Hague Convention. In the light of these arguments, and referring also to the dissenting opinion of judges Myjer and López Guerra annexed to the Chamber judgment, the Government of Finland was of the view that there had not been a violation of Article 8 of the Convention in this case.

The Government considered that the Grand Chamber's forthcoming decision would be of considerable importance not only for the respondent State and the Convention system, but also for the operation of the Hague Convention and for countries outside the European continent. They considered that the Hague Convention provided an appropriate procedure, given the serious consequences of abduction for both the child and the parent complaining of the abduction. In order to preclude the harmful effects of abduction, rapid proceedings and a prompt return were required, the Hague Convention being based on the assumption that the restoration of the status quo that existed prior to the unlawful removal was the best starting point to ensure protection of the rights in question. They also referred, in a similar vein, to the Brussels II bis Regulation, applicable within the European Union.

The Government further stated that the Hague Convention had explicitly left the issue of custody to the courts of the country of the child's habitual residence and that refusal of the child's return was provided for in cases of a grave risk to the child. The Government considered that the development of the court's case-law in this field, the main points of which they set out, undermined the principle of subsidiarity and ran contrary to the aim pursued by the Hague Convention. An ‘in-depth examination of the entire family situation’ amounted to examining the issue of custody itself, and thus slowing down the proceedings, even though the passage of time could play a significant role where the child was heard in the proceedings. In addition, basic fairness should mean that the abducting parent, who was required to prove in a short period of time the existence of a grave threat in the event of the child's return, was deprived of any procedural advantage rather than having access to the courts of the country of his or her choice to determine the merits of a custody dispute.

The Government of the Czech Republic noted, in particular, a conflict between the requirement of speed laid down in the Hague Convention and the high standard of proof set out in the court's recent case-law. Assessment of the best interests of the child differed significantly depending on whether it was carried out in the course of return proceedings before a court in the country to which the child had been taken or whether it took place in the context of custody proceedings by another court in the child's country of habitual residence. As those States who were Parties to both the Convention and the Hague Convention were required to comply with their obligations in respect of both of these texts, they required consistent interpretation and application which reconciled them, it being noted that the Brussels II bis Regulation was even stricter than the Hague Convention. The database created by the Permanent Bureau of the Hague Conference on Private International Law (INCADAT) showed that national courts tended to impose strict application of the Hague Convention, in compliance with its purpose. The Government of the Czech Republic, arguing for a return to the principle of subsidiarity, invited the Grand Chamber to overturn the Chamber judgment and to set limits on the examination of the family situation by the court deciding on an application for a child's return.

Reunite noted that the Hague Convention had been designed to facilitate the protection of children who had been subjected to a wrongful cross-border abduction, on the basis of the assumption that, with certain exceptions, the child's prompt return was in his or her best interests. Reunite entirely endorsed the court's summary of the aims and objectives of the Hague Convention in its judgment in the case of Maumousseau and Washington (cited above, § 69). It noted in particular that the Hague Convention, an enormously successful convention in combating international child abduction, aimed to protect not adults, but children. It provided for a limited number of exceptions to the child's prompt return, leaving the issues of the child's long-term welfare to the courts in the child's country of habitual residence. The latter thus had the task of conducting an in-depth examination of the situation, in the child's interests, unlike the courts in the State to which the child had been abducted, which, when examining an application for return, were required to make a decision following an examination limited to the framework laid down in the Hague Convention.

While observing that the Court, in its case-law, had identified a number of factors central to the proper functioning of the Hague Convention, Reunite noted that recent developments suggested that courts were being required to conduct a fuller examination when determining the exceptions to the child's return. It therefore invited the Grand Chamber to clarify the question of the requirement for an in-depth examination of the entire family situation in the context of the Hague Convention, and to make it clear that this concerned only the compatibility of a return with the Convention and did not call into question the exclusive jurisdiction of the courts in the country of habitual residence to rule on the merits.

The Court considers it appropriate to reiterate at the outset certain principles which must guide it in its examination of the case, and to which it drew attention in its recent judgment in Nada v. Switzerland ([GC], no. 10593/08, § 167, 12 September 2012, ECHR 2012-…), in the following terms:

As regards, more specifically, the question of the relationship between the Convention and the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980, the Court reiterates that in the area of international child abduction the obligations imposed by Article 8 on the Contracting States must be interpreted in the light of the requirements of the Hague Convention (see Ignaccolo-Zenide, cited above, § 95; Iglesias Gil and A.U.I. v. Spain, no. 56673/00, § 51, ECHR 2003-V; and Maumousseau and Washington, cited above, § 60) and those of the Convention on the Rights of the Child of 20 November 1989 (see Maire, cited above, § 72; Maumousseau and Washington, cited above; and Neulinger and Shuruk, cited above, § 132), and of the relevant rules and principles of international law applicable in relations between the Contracting Parties (see Demir and Baykara v. Turkey [GC), no. 34503/97, § 67, ECHR 2008-…).

This approach involves a combined and harmonious application of the international instruments, and in particular in the instant case of the Convention and the Hague Convention, regard being had to its purpose and its impact on the protection of the rights of children and parents. Such consideration of international provisions should not result in conflict or opposition between the different treaties, provided that the Court is able to perform its task in full, namely ‘to ensure the observance of the engagements undertaken by the High Contracting parties' to the Convention (see, among other authorities, Loizidou v. Turkey (Preliminary Objections), 23 March 1995, § 93, Series A no. 310), by interpreting and applying the Convention's provisions in a manner that renders its guarantees practical and effective (see, in particular, Artico v. Italy, 13 May 1980, § 33, Series A no. 37, and Nada, cited above, § 182).

The decisive issue is whether the fair balance that must exist between the competing interests at stake — those of the child, of the two parents, and of public order — has been struck, within the margin of appreciation afforded to States in such matters (see Maumousseau and Washington, cited above, § 62), taking into account, however, that the best interests of the child must be of primary consideration and that the objectives of prevention and immediate return correspond to a specific conception of ‘the best interests of the child’ (see paragraph 35 above).

The Court reiterates that there is a broad consensus — including in international law — in support of the idea that in all decisions concerning children, their best interests must be paramount (see paragraphs 37–39 above).

The same philosophy is inherent in the Hague Convention, which associates this interest with restoration of the status quo by means of a decision ordering the child's immediate return to his or her country of habitual residence in the event of unlawful abduction, while taking account of the fact that non-return may sometimes prove justified for objective reasons that correspond to the child's interests, thus explaining the existence of exceptions, specifically in the event of a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation (Article 13, first paragraph, (b)). The Court further notes that the European Union subscribes to the same philosophy, in the framework of a system involving only EU Member States and based on a principle of mutual trust. Brussels II bis Regulation, whose rules on child abduction supplement those already laid down in the Hague Convention, likewise refers in its Preamble to the best interests of the child (see paragraph 42 above), while Article 24 § 2 of the Charter of Fundamental Rights emphasises that in all actions relating to children the child's best interests must be a primary consideration (see paragraph 41 above).

Thus, it follows directly not only from Article 8 of the Convention, but also from the Hague Convention itself, given the exceptions expressly enshrined therein to the principle of the child's prompt return to his or her country of habitual residence, that such a return cannot be ordered automatically or mechanically (see Maumousseau and Washington, cited above, § 72, and Neulinger and Shuruk, cited above, § 138).

As the Court reiterated in its Neulinger and Shuruk judgment (cited above, § 140), the obligations incumbent on States in this connection were defined in the case of Maumousseau and Washington (cited above, § 83).

The child's best interests do not coincide with those of the father or the mother, except in so far as they necessarily have in common various assessment criteria related to the child's individual personality, background and specific situation. Nonetheless, they cannot be understood in an identical manner irrespective of whether the court is examining a request for a child's return in pursuance of the Hague Convention or ruling on the merits of an application for custody or parental authority, the latter proceedings being, in principle, unconnected to the purpose of the Hague Convention (Articles 16, 17 and 19; see also paragraph 35 above).

Thus, in the context of an application for return made under the Hague Convention, which is accordingly distinct from custody proceedings, the concept of the best interests of the child must be evaluated in the light of the exceptions provided for by the Hague Convention, which concern the passage of time (Article 12), the conditions of application of the Convention (Article 13 (a)) and the existence of a ‘grave risk’ (Article 13 (b)), and compliance with the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms (Article 20). This task falls in the first instance to the national authorities of the requested State, which have, inter alia, the benefit of direct contact with the interested parties. In fulfilling their task under Article 8, the domestic courts enjoy a margin of appreciation, which, however, remains subject to a European supervision whereby the Court reviews under the Convention the decisions that those authorities have taken in the exercise of that power (see, mutatis mutandis, Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299-A; and also Maumousseau and Washington, cited above, § 62, and Neulinger and Shuruk, cited above, § 141).

Specifically, in the context of this examination, the Court reiterates that it does not propose to substitute its own assessment for that of the domestic courts (see, for example, Hokkanen v. Finland, cited above, and K. and T. v. Finland [GC], no. 25702/94, § 154, ECHR 2001-VII). Nevertheless, it must satisfy itself that the decision-making process leading to the adoption of the impugned measures by the domestic courts was fair and allowed those concerned to present their case fully, and that the best interests of the child were defended (see Eskinazi and Chelouche v. Turkey (dec.), no. 14600/05, ECHR 2005-XIII (extracts); Maumousseau and Washington, cited above, and Neulinger and Shuruk, cited above, § 139).

In this connection, the Government considered, in particular, that the overall family situation had to be examined according to the circumstances of each case (see paragraph 75 above). For their part, the third-party interveners, either considered that the requirement of an ‘in-depth examination of the entire family situation’ (Neulinger and Shuruk, cited above) conflicted with the Hague Convention (see paragraphs 84 and 88 above), or asked the Court to clarify this question (see paragraph 91 above) and to set limits on the examination of the family situation by the court deciding on an application for a child's return (see paragraph 89 above).

On this point, the Court observes that the Grand Chamber judgment in the case of Neulinger and Shuruk (cited above, § 139) to which a number of subsequent judgments referred (see, inter alia, Raban v. Romania, no. 25437/08, § 28, 26 October 2010; Šneersone and Kampanella, cited above, § 85; and, more recently, the decision in M.R. and L.R., cited above, § 37) may and has indeed been read as suggesting that the domestic courts were required to conduct an in-depth examination of the entire family situation and of a whole series of factors. That wording had already been used by a Chamber in the case of Maumousseau and Washington (cited above, § 74), such an in-depth examination having, in fact, been carried out by the national courts.

Against this background the Court considers it opportune to clarify that its finding in paragraph 139 of the Neulinger and Shuruk judgment does not in itself set out any principle for the application of the Hague Convention by the domestic courts.

The Court considers that a harmonious interpretation of the European Convention and the Hague Convention (see paragraph 94 above) can be achieved provided that the following two conditions are observed. Firstly, 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, particularly where they are raised by one of the parties to the proceedings, must genuinely be taken into account by the requested court. That court must then make a decision that is sufficiently reasoned on this point, in order to enable the Court to verify that those questions have been effectively examined. Secondly, these factors must be evaluated in the light of Article 8 of the Convention (see Neulinger and Shuruk, cited above, § 133).

In consequence, the Court considers that Article 8 of the Convention imposes on the domestic authorities a particular procedural obligation in this respect: when assessing an application for a child's return, the courts must not only consider arguable allegations of a ‘grave risk’ for the child in the event of return, but must also make a ruling giving specific reasons in the light of the circumstances of the case. Both a refusal to take account of objections to the return capable of falling within the scope of Articles 12, 13 and 20 of the Hague Convention and insufficient reasoning in the ruling dismissing such objections would be contrary to the requirements of Article 8 of the Convention and also to the aim and purpose of the Hague Convention. Due consideration of such allegations, demonstrated by reasoning of the domestic courts that is not automatic and stereotyped, but sufficiently detailed in the light of the exceptions set out in the Hague Convention, which must be interpreted strictly (see Maumousseau and Washington, cited above, § 73), is necessary. This will also enable the Court, whose task is not to take the place of the national courts, to carry out the European supervision entrusted to it.

Furthermore, as the Preamble to the Hague Convention provides for children's return ‘to the State of their habitual residence’, the courts must satisfy themselves that adequate safeguards are convincingly provided in that country, and, in the event of a known risk, that tangible protection measures are put in place.

The Court, which must make its assessment in the light of the situation existing at the time of the impugned measure (see, mutatis mutandis, Maslov v. Austria [GC], no. 1638/03, § 91, ECHR 2008-…), notes firstly that, unlike in the case of Neulinger and Shuruk (cited above), the circumstances of which were in any event particularly unusual, especially on account of the very considerable passage of time involved, only a short period had elapsed in this case by the time the Latvian authorities received the application under the Hague Convention. The child had spent the first years of her life in Australia and arrived in Latvia aged three years and five months. The application for return was submitted to the central authority two months after the departure from Australia, and the judgments of the District Court and of the Riga Regional Court were delivered four and six months respectively after the applicant and her daughter had arrived in Latvia. Finally, T. encountered E. and began the return journey with her to Australia on 14 March 2009. It follows that not only the submission of the return application to the Latvian authorities, but also the domestic proceedings and the child's return took place within the period of less than one year referred to in the first paragraph of Article 12 of the Hague Convention, which provides for an immediate return in such cases.

Moreover, the Court notes that the domestic courts, at first instance and on appeal, were unanimous as to the response to be given to the application for return submitted by T. By a judgment of 19 November 2008, the District Court, which ruled after a hearing attended by both parents, held that the Hague Convention was applicable and granted T.'s application, ordering the child's immediate return to Australia. On 26 January 2009, after a hearing which was also held in the presence of both parents, the Riga Regional Court upheld that judgment.

With regard more specifically to the reasoning given by the Latvian courts, the Court notes that at first instance the court dismissed, in a reasoned manner, the applicant's objections to the child's return on the basis of Article 13 of the Hague Convention, notably after having examined the evidence submitted by the parties, including the photographs and copies of e-mails between the applicant and T.'s relatives, as well as witness statements submitted by the applicant. The court, having refused on the other hand to request information from the Australian authorities about T.'s previous convictions and the charges allegedly brought against him, ultimately dismissed the allegation of a risk of psychological danger to the child in the event of her return, finding that the applicant had failed to substantiate it (see paragraph 21 above).

The Court observes that the situation subsequently took another form before the Riga Regional Court, the applicant having submitted, in the context of her appeal, a certificate prepared at her request by a psychologist on 16 December 2008, that is, after the first-instance judgment. This document indicated that, while the child's young age prevented her from expressing a preference as to her place of residence, an immediate separation from her mother was to be ruled out on account of the likelihood of psychological trauma (see paragraph 22 above).

Yet, whilst the District Court, examining the request for a stay of execution of the return order, took account of that certificate in ordering, in the child's interests, a stay of execution of the return order pending the outcome of the appeal proceedings (see paragraph 24 above), the Regional Court refused to take it into consideration.

The Court notes that the appeal court considered that the findings of the psychological report concerned the merits of the custody issue and could not therefore serve as evidence in ruling on the question of the child's return that was before it. In so doing, and in view of this reasoning, the Riga Regional Court refused to examine the conclusions of the psychological report in the light of the provisions of Article 13 (b) of the Hague Convention, even though it was directly linked to the best interests of the child in that it drew attention to a risk of psychological trauma in the event of immediate separation from her mother (see, conversely, Maumousseau and Washington, cited above, § 63).

Article 8 of the Convention imposed a procedural obligation on the Latvian authorities, requiring that an arguable allegation of ‘grave risk’ to the child in the event of return, be effectively examined by the courts and their findings set out in a reasoned court decision (see paragraph 107 above).

Under Article 13 (b) of the Hague Convention, the courts examining the return request are not obliged to grant it ‘if the person, institution or other body which opposes its return establishes that … there is a grave risk’. It is the parent who opposes the return who must, in the first place, adduce sufficient evidence to this effect. In the instant case, it was therefore for the applicant to provide sufficient evidence to substantiate her allegations, which, moreover, had to concern the existence of a risk specifically described as ‘grave’ by Article 13 (b). Furthermore, the Court notes that while the latter provision is not restrictive as to the exact nature of the ‘grave risk’ — which could entail not only ‘physical or psychological harm’ but also ‘an intolerable situation’ —, it cannot be read, in the light of Article 8 of the Convention, as including all of the inconveniences necessarily linked to the experience of return: the exception provided for in Article 13 (b) concerns only the situations which go beyond what a child might reasonably bear. The applicant fulfilled her obligation by submitting a psychologist's certificate concluding that there existed a risk of trauma for the child in the event of immediate separation from her mother. Furthermore, she had also submitted that T. had criminal convictions and referred to instances of ill-treatment by him. It was therefore for the Latvian courts to carry out meaningful checks, enabling them to either confirm or exclude the existence of a ‘grave risk’ (see B. v. Belgium, no. 4320/11, §§ 70–72, 10 July 2012).

The Court accordingly considers that the refusal to take into account such an allegation, substantiated by the applicant in that it was based on a certificate issued by a professional, the conclusions of which could disclose the possible existence of a grave risk within the meaning of Article 13 (b) of the Hague Convention, was contrary to the requirements of Article 8 of the Convention. The non-adversarial nature of the psychological report did not suffice to absolve the courts from their obligation to examine it effectively, especially as the Regional court's judicial powers would have enabled it to submit the document for cross-examination by the parties, or even to order a second expert report of its own motion, as permitted by Latvian law (see paragraph 45 above). The issue of whether it was possible for the mother to follow her daughter to Australia and to maintain contact with her should also have been dealt with. The Court further emphasises that, in any event, since the rights safeguarded by Article 8 of the Convention, which is part of Latvian law and directly applicable, represent ‘fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms’ within the meaning of paragraph 20 of the Hague Convention, the Regional Court could not dispense with such a review in the circumstances of this case.

As to the need to comply with the short time-limits laid down by the Hague Convention and referred to by the Riga Regional Court in its reasoning (see paragraph 25 above), the Court reiterates that while Article 11 of the said Convention does indeed provide that the judicial authorities must act expeditiously, this does not exonerate them from the duty to undertake an effective examination of allegations made by a party on the basis of one of the exceptions expressly provided for, namely Article 13 (b) in this case.

In the light of the foregoing, the Court considers that the applicant suffered a disproportionate interference with her right to respect for her family life, in that the decision-making process under domestic law did not satisfy the procedural requirements inherent in Article 8 of the Convention, the Riga Regional Court having failed to carry out an effective examination of the applicant's allegations under Article 13 (b) of the Hague Convention.

It follows that there has been a violation of Article 8 of the Convention.