The European Court of Human Rights will be delivering a Grand Chamber judgment in the case of X v. Latvia on November 26, 2013.
This case involves the return and custody of a now eight-year-old girl. In 2004, X, an Australian national, began having a relationship with T, also an Australian national. They moved in together and in 2005, X had a daughter. T’s name was not on the birth certificate and no paternity tests were performed. Once the relationship between X and T deteriorated, X, with her daughter, age three, moved to Latvia.
T applied to the Australian Family Court, which recognized his parental rights and held that he had joint responsibility since the child’s birth. Subsequently, Australia contacted Latvian authorities for the child’s return under the Hague Convention. As a result, the Latvian first-instance court found the removal to be wrongful.
X appealed. She contended that the child had ties to Latvia, she criticized T’s conduct and the lack of information about her daughter’s situation in the event of return, and, while alleging her own inability to return to live in Australia again, submitted a psychological report, drawn up at her request, which concluded that there was a risk of psychological trauma for her child in the event of immediate separation from her. In January 2009, the Riga Regional Court upheld the first-instance judgment and held that X’s allegations were unfounded and, in particular, it held that it was not called upon to rule on the issue raised by the psychological report, since it concerned custody, which was not part of the procedure for the child’s return as foreseen by the Hague Convention.
Since the applicant took no steps to comply with that judgment, T took advantage of a chance encounter to recuperate his daughter and return with her to Australia. T currently exercises parental rights alone, but the applicant, who is once again living in Australia and working for a public institution, has regular contact with her daughter. This begs the question, in my opinion, about whether this removal of the child from her mother, from Latvia to Australia, was not itself unlawful? After all, paternity was never investigated or proved! It seems to me like T’s paternity is an assumption that lacks any legal basis.
Relying in particular on Article 8 (right to respect for private and family life) of the European Convention on Human Rights, the applicant alleges that she has been the victim of an infringement of her right to respect for her family life within the meaning of Article 8.
The application was lodged with the European Court of Human Rights on May 8, 2009. In its chamber judgment of November 15, 2011, the Court concluded, by a majority, that there had been a violation of Article 8. On June 4, 2012, the case was referred to the Grand Chamber at the Government’s request. A hearing took place in public before the Grand Chamber on October 10, 2012.
Do you believe that it is appropriate to recognize T’s, or any other person’s, paternal rights if a.) His name is not on the birth certificate, and b.) Paternity was never proved? Do you believe that after 3 years of a child’s life that a person becomes the “father” just by being in the child’s life? Do you think T’s removal of the child was unlawful? Is this legalized kidnapping? Do you believe this was a violation of Article 8 of the European Convention on Human Rights? How do you think the Grand Chamber will rule on this case? Is this case not moot because the daughter and X are now back in Australia?
Source: European Court of Human Rights
Picture: Google Images
I believe it is morally and legally inappropriate to recognize T’s rights. T is claiming rights without any legal cognizable basis, which if enforced and given effect will allow more people than we are willing to admit have rights over children they only have a slight connection to. This is limiting the rights of the mother and the woman who has given up life and limb for her child. If T wanted to exercise parental rights over the child he should have either legally adopted the child or proven that he was the father. The moral aspect is just as troubling because you are removing a child from her biological and legal mother and giving the child to someone who is practically a stranger. What trauma will the child undergo because of this situation? Only time will tell.
While after a certain amount of time a person may develop paternal like qualities, but in no way does that mean that that person can exert rights over that person and claim them as their child. This type of thinking can lead to a lot of abuse and inhibit the rights of the true parent. Instead of T’s quasi-legal kidnapping and attempts to skirt the law, he should have requested a DNA test to prove his parental rights over the child.
Unfortunately I have previously heard of this type of “legal kidnapping” occurring between parents, of a child, who live in two different countries. The stories that I have heard occurred between divorced parents who are nationals of different countries. I had no idea that the courts would go as far as to take a child away from the only parent she has ever known, move her to another country with a man who she has never met and who has not been genetically proven her biological father. This would be a terrifying experience for a child of any age.
Celebrity Kelly Rutherford fought a similar battle over residential custody of her children. According to Rutherford, her children were visiting her ex-husband in France for the summer. When the commencement of the trip came her ex-husband refused to return the children to America and a judge ruled that the children would live with her ex-husband in his native home. While they have joint legal custody, Kelly can only see her children in France. International custody battles are heart wrenching and more common than most of us realize.
This is quite a bizarre case. I agree with Isaias and have to say that it is morally and legally inappropriate to recognize T’s rights. T has not shown any evidence to prove that he has any right to the child here. There is only circumstantial evidence, which should not be considered enough for T to claim any right over the child. I believe T should’ve at least had to prove his parental rights over the child through a DNA test. It is absurd to give him parental rights over the child without any legal basis. Essentially, he was able to claim parental rights simply because he said he has parental rights over the child. This cannot stand because it would open the flood gates. It would allow people to simply claim parental rights over children without any legal basis. Furthermore, people like the mother in this case would be at the mercy of strangers claiming that a child is theirs. There would undoubtedly be some form of trauma to both the losing parent and the child.