The applicant was not aware of the other party’s allegations to respond them in hers child custody case law. Violation equality of arms.
Andersena v. Latvia of 19.09.2019 (no. 79441/17)
Adversarial proceedings, equality of arms and the right to family life.
The applicant moved from the family home with her daughter to another country. The father filed a lawsuit and won the child’s return to his place of residence. In the proceedings before the Court, the applicant was represented by a lawyer, but did not have access to the other party’s observations in the proceedings before the Court of Appeal.
The Court finds that the failure to inform the applicant of the defendant’s allegations and its inability to respond to those allegations did not allow it to take part in the proceedings before the Riga Regional Court in accordance with the principle of equality of arms and the right to disputed procedures. Consequently, there has been a violation of Article 6 of the Convention. It also held that the national courts, within their discretion, have struck a fair balance between the competing interests at stake, taking into account in particular the best interests of the child which must be a primary consideration, so there was no violation of Article 8.
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. They dismissed the applicant’s allegations about physical and psychological violence in the family as unestablished and rejected her claim that the daughter’s return to Norway would expose her to harm.
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 DECISION OF THE COURT…
With respect to the present case, the Court observes that the first hearing that was held before the first-instance court was adjourned at the applicant’s request so that she could obtain legal representation. While the applicant herself was absent from the second hearing, she was represented by an advocate. Like the domestic courts, the Court dismisses the applicant’s contention that she had only intended to authorise A.R. to act for her, as the written authorisation was clearly issued with respect to I.M. as well. Furthermore, I.M. submitted an order formally certifying her capacity to act as an advocate at that stage of the proceedings, and proceeded to represent the applicant. She did not, however, would need to be heard in person. Accordingly, the Court considers that the grounds on which the first instance court proceeded to hear the case in the applicant’s absence .
The Court also notes that the applicant was not denied the opportunity to request an oral hearing with respect to her ancillary‑complaint proceedings, although it was for the Riga Regional Court to decide whether a hearing was necessary .
Overall, while the Court finds it regrettable that the applicant was not heard in person by the domestic courts, in the particular circumstances of the case, it is unable to conclude that she made full use of the opportunities afforded to her by the domestic law to present her case effectively.
the Court has also held that the special characteristics of an adjudication do not justify disregarding such fundamental principles of a fair trial as the right to adversarial proceedings and equality of arms
Accordingly, the Court finds that the failure to inform the applicant of S.I.E.A.’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.
With respect to the ancillary-complaint proceedings, the Court notes that the majority of the evidence put forward by the applicant was in fact analysed by the appeal court. However, the expert report concerning the recording of 2 July 2017 was only mentioned when the applicant’s arguments were summarised by the court. While the Court finds the appeal court’s failure to directly address that particular piece of evidence regrettable, it does not regard that omission alone as capable of leading to a finding of a violation of the applicant’s right to family life. The Riga Regional Court did state that the finding on the lack of a risk of physical or psychological harm was based on the evidence in its entirety . Furthermore, the courts’ conclusion on the lack of violence was, inter alia, based on the analysis of psychiatric reports and other evidence attesting to the supposed consequences of the alleged incident, including the information provided by the Latvian custodial authority . Thus, having viewed the expert report in its broader context, the Court does not consider that it was capable of affecting the conclusions reached by the domestic courts.
Lastly, despite its findings with respect to Article 6, the Court does 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.