JOINT DISSENTING OPINION OF JUDGES MYJER              AND LÓPEZ GUERRA

We do not agree with the judgment rendered by the majority of the Section. In our opinion, the application of the general principles in this matter, derived from the Convention mandates and the case-law of this Court, should have led to a finding of no violation of the rights of the applicant recognised in Article 8 of the Convention.

As the Court has pointed out on previous occasions in relation to this type of claim, the task of assessing the best interests of a child belongs to the domestic authorities, which often have the benefit of direct contact with the persons concerned (see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 138, 6 July 2010). It is not the job of this Court to take the place of the competent authorities in determining whether a decision concerning a child’s residence would expose him to psychological harm (ibid., § 141). Our Court’s function in such matters is merely to verify whether the national authorities followed adequate procedures and conducted a balanced and reasonable assessment of the respective interests of each person (ibid., § 139).

In the present case there is no indication that the Latvian courts disregarded the required procedures or arrived at unreasonable or arbitrary conclusions. As is clear from the case file, the national courts took into account all the relevant principles and, on the basis of the evidence examined, concluded that there was no reasonably-founded concern that the child’s return to Australia would subject her to a risk of any kind.

The majority’s reasoning criticises the Latvian courts’ judgments for not having taken into account several factors (such as the financial difficulties of the presumed father) and having taken insufficient account of others (such as the psychological assessment conducted at the applicant’s request or the material well-being of the child if returned to Australia). In the words of this Court (see paragraph 78), the Latvian courts’ approach “lacked in ‑ depth examination of the entire family situation and of a whole series of factors”. As a result, according to the majority, the Latvian courts did not sufficiently assess the best interests of the child (see paragraphs 71-73). Thus, on the basis of the elements presented, the majority defines the relevant factors which it believes the national courts should have considered, as well as the importance that they should have had in those courts’ final conclusions.

By doing so the majority has substituted its assessment concerning the best interests of the child for the assessment of the national courts in their reasoned and non-arbitrary judgments, but without having had (as did the national courts) the benefit of direct contact with the parties concerned or with the evidence examined in the proceedings. In our opinion, the majority has assumed a function going beyond the competence of this Court. In this case, the Latvian courts duly assessed the behaviour – including the (lack of) cooperation with both the Australian and Latvian authorities by the applicant herself – and the personal circumstances of the parties, the relevant provisions of national and Australian law and the foreseeable consequences that returning to Australia would have on the child, as well as the position of the applicant if she likewise decided to return to Australia, with regard to her freedom of movement, employment and social benefits. We believe that the reasoning of the Latvian courts, based on a direct examination of the facts of the case, cannot be considered insufficient or unsatisfactory merely because the majority has a different opinion as to what should have been the relative weight and importance of the different factors comprising the Latvian courts’ conclusions.

Our dissent is not affected by the considerations of the majority (paragraph 77) concerning the subsequent decisions of the Australian courts in these custody proceedings. Although it is surprising that the Australian courts should have prohibited the mother from speaking Latvian to her child, the Latvian courts cannot be blamed for a decision issued by an Australian court long after the child had returned to Australia.