Communicated on 23 November 2017
FIFTH SECTION
Application no 79441/17
Andersena
against Latvia
lodged on 20 November 2017
STATEMENT OF FACTS
1. The applicant, Ms Kerija Andersena, is a Latvian national who was born in 1970 and lives in Riga.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background information
3. The applicant is married to a Norwegian citizen S.A. They have a daughter K.S.A. who was born on 3 December 2013 in Latvia and is a citizen of both Latvia and Norway. Sometime in 2014 the family moved to Norway, though they maintained close ties with Latvia. The applicant continued receiving child support benefit and unemployment benefit from Latvia. While in Norway she did not work and was supported by her husband.
4. In spring 2017 the applicant’s relationship with her husband deteriorated. S.A. became physically violent against her, which was documented by the applicant’s family doctor in Norway. The applicant approached the Office for the Children, Youth and Family Affairs in Norway (Bufetat), the Norwegian Child Welfare Services (Barnevernet), the Crisis Center Secretariat in Oslo and the local crisis center in Romerike, as well as a women’s consultation office in Norway. The applicant submits that those institutions had been unable to offer her any help as she was not a tax-payer in Norway. The case file also indicates that S.A. had attended some meetings at a family support centre in Romerike concerning potential mediation.
5. It appears that S.A. had moved out of the family home he owned. According to the applicant, he would, nonetheless, appear without a prior warning and harass the applicant and their daughter. Following an incident that took place on 2 July 2017 and allegedly involved S.A. hitting K.S.A., the applicant together with their daughter returned to Latvia. Shortly after K.S.A. started attending a kindergarten in Latvia and the applicant found a job there.
6. The applicant also describes an incident that took place on 9 October 2017 when S.A. appeared at her and her daughter’s place of residence in Latvia, forced himself into their apartment and went through the applicant’s belongings. He left when the applicant called the police.
2. Proceedings under the Hague Convention
7. On 11 August 2017 S.A. filed an application under the Hague Convention requesting K.S.A. to be returned to Norway. The applicant objected, inter alia, on the grounds that returning to Norway would be harmful to K.S.A. She submitted to the court transcripts from her visits to a family doctor in Norway, recording the violence against her, as well as several extra-judicial psychiatric and psychotherapeutic examinations of her daughter in Latvia, all indicating that K.S.A. had been traumatised by her experiences in Norway. Some of them also stated that the mother and daughter should not be separated and that it was important for K.S.A. to stay in a safe and calm environment.
8. On 8 September 2017 the Riga City Zemgale District Court granted S.A.’s request. It dismissed the possibility of invoking Article 13 § 1(b) of the Hague Convention on the grounds that the applicant had not contacted the law enforcement authorities in Norway.
9. The applicant lodged an ancillary complaint. She also filed an official complaint with the Norwegian police, a copy of which she submitted to the appeal court. The applicant also submitted a transcript of an audio recording from 2 July 2017 of her distressed daughter reiterating that the father had hit her, accompanied by a Latvian forensic expert’s conclusion that the audio file had not been tampered with.
10. On 23 October 2017 the Riga Regional Court upheld the decision to return K.S.A. to Norway, giving the applicant 30 days to voluntarily execute the decision. The appeal court agreed with the reasoning of the first-instance court and added that the evidence was not sufficient not to return K.S.A. to her country of residence. It also noted that there were legal means in Norway by which to prevent a risk of abuse, if it would arise, and that K.S.A. and the applicant would be able to receive protection and support in Norway.
3. Other proceedings
11. It appears that following the applicant’s return to Latvia S.A. instituted divorce and custody proceedings in Norway. No further information is available.
12. It also appears that the Norwegian police have opened an investigation in relation to the applicant’s complaint about S.A.’s actions she lodged following the decision of the Riga City Zemgale District Court. No further information is available.
13. In separate civil proceedings, prior to lodging a claim, the applicant requested the Riga City Vidzeme District Court to issue a restraining order against S.A. On 31 October 2017 the court granted the request and issued a restraining order prohibiting S.A. from approaching the applicant’s place of residence closer than 100 meters and from communicating with the applicant via any means. The applicant was given a deadline until 31 January 2018 for lodging her claim.
COMPLAINTS
1. The applicant complains under Article 8 that returning her daughter K.S.A. to Norway would expose the child to physical and psychological harm and that Latvian courts have not considered the best interests of child.
2. Under Article 6 the applicant complains about the fairness of the proceedings. In particular, she complains about her absence from and the lack of her representation at the first-instance hearing, the lack of an oral hearing in appeal proceedings, the failure of the appeal court to forward her S.A.’s observations on her appeal complaint, the failure to send her the final decision of the appeal court, as well as the courts’ failure to give reasons for favouring for certain evidence and its failure to obtain further evidence.
QUESTIONS
1. Has there been a violation of the applicant’s right to respect for her family life, contrary to Article 8 of the Convention?
In particular, did the domestic courts sufficiently take into account the applicant’s objection that K.S.A.’s return to Norway would fall within the scope of Article 13 of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction and did they provide sufficient reasoning in that regard (see X v. Latvia [GC], no. 27853/09, §§ 106-107, ECHR 2013)?
Did the domestic courts satisfy themselves that adequate safeguards and tangible protection measures were convincingly provided in Norway (see X v. Latvia [GC], no. 27853/09, § 108, ECHR 2013)?
2. Did the applicant have a fair hearing in the determination of K.S.A. return to Norway, in accordance with Article 6 § 1 of the Convention, in particular, with regard to her right to adversarial proceedings in light of the fact that S.A.’s observations on her appeal were not transmitted to her?
Full & Egal Universal Law Academy