Yes, this Convention came into force on 1 April 2003 in Latvia.

1.1 Which law applies to questions of custody and legal representation of a minor? What criteria are used to determine the applicable law?

Latvia has signed Agreements on Legal Cooperation with a number of countries (the Russian Federation, the Ukrainian People’s Republic, the Republic of Belarus, the Republic of Uzbekistan, the Kyrgyz Republic, the Republic of Moldova), with these countries, the applicable law is determined by the abovementioned agreements. For example, according to the 30th articles of the Agreement on Legal Cooperation and Legal Relations in Civil, Family and Criminal matters between the Republic of Latvia and the Russian Federation, the applicable law, determining the rights and responsibilities of parents and children, is established according to the law of the state (a contracting party) of their common habitual residence. If the habitual residence of children or one of the parents is in the territory of another state (a contracting party), then the law of the state of which the child is a citizen is applied. The Agreements also establish the conflict provisions regarding adoption and custody questions, in the majority of these cases the principle of citizenship prevails.

Please note that the provisions of all the agreements on legal cooperation are more or less identical. 

In addition to the above, the Hague Convention (hereinafter the Convention) of 19 October 1996 on jurisdiction, applicable law, its recognition and enforcement, parental responsibilities and the protection of children is binding for Latvia. The list of the contracting parties for whom the Convention is binding can be found here:    http://www.hcch.net/index_en.php?act=conventions.status&cid=70 .

According to Article 52 of the Convention, the Convention does not affect the Agreements on Legal Cooperation, signed by the states, but at the same time it provides for a possibility of declaring the opposite. Latvia has submitted such a declaration with regard to the Agreements of Legal Cooperation with Poland, Lithuania and Estonia.  The Convention basically is applied with regard to the other EU member states. Inter alia, the Convention is applied to rights of guardianship and trusteeship, including rights relating to the care of the person of the child, in particular, the rights to determine the child’s place of residence, as well as rights of access including the right to take a child for a limited period of time to a place other than the child’s habitual residence; guardianship, curatorship and analogous institutions; the designation and functions of any person or body having charge of the child’s person or property, representing or assisting the child. The applicable law is determined by Articles 15 to 22 of the Convention. According to the basic principle, the applicable law is the law of a country of the habitual residence of the Child.    

In all other cases the applicable law is determined according to the provisions of the Introduction of the Civil Law providing for some conflict provisions in cases of trusteeship (Article 9), as well as legal relations between parents and children (Article 15). The basic principle is the law of the habitual residence of the child.  

In cases where there are no international or national conflict provisions, the applicable law is the national law, namely, the 2nd and 4th chapter of the Family Law, which is part one of the Civil Law. 

1.2 Which authority has international and territorial jurisdiction concerning questions of custody?

The EU Member States have jurisdiction in matters of parental responsibility according to Regulation (EC) No2201/2003 as from 27 November 2003, concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No1347/2000  (hereinafter Brussels IIa). Brussels IIa is applicable to questions concerning guardianship and trusteeship, curatorship or analogous institutions; the designation and functions of any person or body having charge of the child’s person or property, or representing the child.  The legal basis of Brussels IIa is comparatively more casuistic, for details see Articles 8 to 15. The basic principle – the law is attached to the habitual residence of the child.  

Latvia has signed Agreements on Legal Cooperation with a number of countries (the Russian Federation, the Ukrainian People’s Republic, the Republic of Belarus, the Republic of Uzbekistan, the Kyrgyz Republic, the Republic of Moldova); with these countries, the applicable law is determined by the abovementioned agreements. Regarding the rights and responsibilities of parents and children, the jurisdiction is subordinate to the applicable law. The jurisdiction falls to the contracting party, applying the law.  Different rules apply to the questions of adoption and custody. In these cases the jurisdiction is determined according to the prevailing criterion of citizenship. For more details see for example Articles 33 to 37 of the Agreement on Legal Cooperation and Legal Relations in Civil, Family and Criminal Matters between the Republic of Latvia and the Russian Federation.

Legal provisions are included also in the Hague Convention. At the same time we have to take into account that the Parties of the Convention that are EU Member States apply the Convention only to the extent to which the question is not already regulated by Brussels IIa.

The basis for jurisdiction is covered by Articles 5 to 14 of the Hague Convention. The basic principle of Brussels IIa for determining the jurisdiction is the habitual residence of the child.  

The provisions of the Civil Procedure Law (hereinafter CPL) apply to national cases. According to chapter 29.1 of the CPL, cases deriving from the custody rights and rights to access are brought before a court of general jurisdiction, according to the place of residence of the child.   For more details see Article 244.3 of the CPL. Individual questions regarding legal protection and representation of the legal interests of a child are the competence of a custody court. For more details see chapter IV of the Law On Orphan’s Courts. Cases fall under the jurisdiction of a certain Orphan’s court according to chapter IV of this law.  

1.3 Which authority has international and territorial jurisdiction concerning questions of representation?

No distinction is made in international private law between custody and right of representation, therefore the above applies.

A child is a person who has not attained 18 years of age, excepting such persons who have been declared to be of legal age in accordance with the law or have entered into marriage before attaining 18 years of age (Articles 219-221 of the Civil law).

A person who, pursuant to the procedures established by law, has married before attaining the age of eighteen, shall be deemed to be of age of majority.

2.1 Is it possible for the legal capacity of a minor to be extended in some cases (e.g. right to get married, right to make last will)?

Yes.

2.1.1 Is a decision required to extend the legal capacity? If so, who is competent to decide on the extension of the legal capacity?

Minors, if they have reached the age of 16, may make a will autonomously with respect to their independent property (Section 420 of the Civil law).

By way of exception, a person who has attained sixteen years of age may marry with the consent of his or her parents or guardians if he or she marries a person of age of majority.

If the parents or guardians, without good cause, refuse to give permission, then permission may be given by an Orphan’s court for the place where the parents or appointed guardians reside.

In exceptional circumstances and for especially good cause, when the guardians and closest kin of a minor attest that the behaviour of the minor is irreproachable, and he or she is able to independently protect and defend his or her rights and perform his or her duties, the minor may be declared as being of age of majority even before he or she has attained the age of eighteen, but not earlier than before he or she fully attains the age of sixteen.

The granting of majority before term shall be by the appropriate Orphan’s court, and its decision is subject to confirmation by a court.

Except in the cases set out in Sections 221 (The granting of majority before term) and 260 (Minors shall administer their unrestricted property independently), minors do not have capacity to act and therefore they shall be represented by a guardian in all legal transactions (Section 261 of the Civil law).

2.1.2 List the transactions that the minor may enter into alone (e.g. the right to make a last will) with reference whether approval of some other person or authority is necessary for such transactions.

Minors, if they have reached the age of 16, may make a will with respect to their independent property (Section 420 of the Civil law).
For further explanation, see above.

Until reaching the age of majority, a child is under the custody of his or her parents (Article 177 of the Civil law).
Parents living together shall exercise custody jointly. If any differences of opinion arise between the parents, such differences shall be resolved by an Orphan’s court unless otherwise provided for by law. If the parents are living separately, the joint custody of the parents continues. Daily custody shall be implemented by the parent with whom the child is living. The joint custody of the parents shall terminate upon the establishment on the basis of an agreement between the parents or a court adjudication of the separate custody of one parent.
The parent with whom the child is located in separate custody has all the rights and duties, which arise from custody. The other parent has access rights.
A father and mother already are, on the basis of custody rights, the natural guardians of their minor children.

3.1 What is the scope of the right of custody?

Custody is the rights and duties of parents to care for the child and his or her property and to represent the child in his or her personal and property relations (Article 177 of the Civil law).

Care for a child means his or her care, supervision and the right to determine his or her place of residence.

Care of the child shall mean his or her maintenance, i.e., ensuring food, clothes, dwelling and health care, tending to the child and his or her education and upbringing (ensuring mental and physical development, as far as possible taking into account his or her individuality, abilities and interests and preparing the child for socially useful work).

Supervision of the child means care for the safety of the child and the prevention of endangerment from third persons.

By the right to determine the place of residence of the child is understood the choice of the geographic place of residence and choice of dwelling.

Care for the property of the child means care for the maintenance and utilisation of the property of the child by preserving and increasing it.

The property of minor children shall be under parental administration (Article 190 of the Civil law).

3.2 Who will appoint the custodian(s), if either one or both parents/custodians are not able to act anymore (e.g. in case of death or loss of legal capacity)?

3.2.1 On who’s proposal and when the decision on appointment of custody is made?

3.2.2 Is the competent authority free in its choice of a new custodian?

3.2.3 Can the right of custody belong to several persons? Is it possible to have different custodians for different areas (care of property/care of the child itself)?

Guardians shall be appointed for children left without parental custody (Guardianship is established over minors.) (Article 222 of the Civil law). Matters of guardianship are under the purview of the Orphan’s courts. An Orphan’s court has the duty to appoint a guardian for a minor without delay and without waiting for a petition from kin or other relatives. (Section 330 of the Civil law).

In the first instance guardianship over minors devolves to their nearest kin, but for this the confirmation of an Orphan’s court is necessary. The nearest kin of minors shall be regarded as those who, upon the death of such minors, would be their heirs by intestacy.

Guardians shall be appointed by a decision of an Orphan’s court (Article 239 of the Civil law).

In particularly difficult and complicated cases of guardianship an Orphan’s court may appoint several guardians, but not more than three. (Article 26 of the Law On Orphan’s Courts).

3.3 How and by whom will the right of cutody be determined if the parents are arguing about it? Is there a difference between married and unmarried couples?

Parents living together shall exercise custody jointly. If the parents are living separately, the joint custody of the parents continues. If any differences of opinion arise between the parents, such differences shall be resolved by an Orphan’s court (Section 178 of the Civil law). Disputes between parents regarding custody rights shall be decided taking into account the interests of the child and ascertaining the views of the child if only he or she is able to formulate such.

3.4 May the right of custody be transferred to another person by means of a power of attorney?

No.

Parental custody includes the legal power of representation.

Guardians shall assume the place of parents for their wards (Section 252 of the Civil law).

4.1 Who will appoint the legal representatives, if either one or all parents/other persons) are not able to act anymore (e.g. in case of death or loss of legal capacity)?

4.1.1 On who’s proposal and when the decision on appointment of a legal representative is made?

4.1.2 Is the competent authority free in its choice of a new legal representative

4.1.3 Can the right of legal representation belong to several persons? Is it possible to have different representatives for different areas?

Guardians shall be appointed for children left without parental custody (Guardianship is established over minors.) (Article 222 of the Civil law). Matters of guardianship are under the purview of the Orphan’s courts. An Orphan’s court has the duty to appoint a guardian for a minor without delay and without waiting for a petition from kin or other relatives. (Section 330 of the Civil law).

Guardians shall be appointed by a decision of an Orphan’s court (Article 239 of the Civil law).

In particularly difficult and complicated cases of guardianship an Orphan’s court may appoint several guardians, but not more than three. (Article 26 of the Law On Orphan’s Courts).

4.2 Are there any restrictions / extensions for the legal representative(s)?

Yes.

4.2.1 Are there some areas in which the legal representative is not competent to act (e.g. drafting of a last will, entering into marriage)?

Except in the cases set out in Sections 221 (The granting of majority before term) and 260 (Minors shall administer their unrestricted property independently), minors do not have capacity to act and therefore they shall be represented by a guardian in all legal transactions (Section 261 of the Civil law).

Minors shall administer their unrestricted property independently (Section 195). They may conclude transactions in respect of this property within the limits of normal administration and they shall be liable for such to the extent of their unrestricted property.

If a minor, in accordance with the law enters into employment relations or is independently working in some trade, in a craft, in sales, etc., he or she may conclude transactions which are necessary in connection with his or her independent work, and he or she shall be liable for such transactions to the extent of all his or her property.

In such cases, a minor also may not independently enter into transactions which are necessary in connection with his or her independent work as the guardian may not independently enter into any transactions without the permission of an Orphan’s court (point 4.2.4.2).

4.2.2 Is there a connection between the right of custody and the representation rights (e.g. power of representation exists only in the areas of custody)? Would it be possible for both parents to have custody but for only one to have the right of representation in transactions with some property of a minor?

Parental custody includes the legal power of representation.
Parents living together shall exercise custody jointly. If the parents are living separately, the joint custody of the parents continues.
The joint custody of the parents shall terminate upon the establishment on the basis of an agreement between the parents or a court adjudication of the separate custody of one parent. The parent with whom the child is located in separate custody has all the rights and duties, which arise from custody.

4.2.3 Is it required that all legal representatives conclude transactions on behalf of the minor jointly (e.g. both parents) or may the transaction be concluded by one legal representative of the minor alone (e.g. one parent)?

4.2.3.1 Name the legal transactions (e.g. waiver of succession) the legal representative may perform on behalf of the minor if he/she is acting alone (e.g. one parent).
4.2.3.2 Name the legal transactions (e.g. waiver of succession) into which the legal representatives may enter on behalf of the minor only jointly (e.g. both parents).
4.2.3.3 Would there be any difference on the requirement of joint representation in case the parents have never been married?

Parents jointly shall represent a child in his or her personal and property relations (joint representation). If the parents are living separately, joint representation is possible only if both parents have agreed regarding joint custody or it is presumed that joint custody of the parents exists (Section 186 of the Civil law).

• One of the parents solely shall represent a child in his or her personal and property relations if:the other parent has not reached age of majority, except in the case when he or she has entered into marriage;
• the other parent has died;
• with an agreement or a court judgment custody rights have been granted to one parent, except in the case where in accordance with law the personal relations of the child are represented by both parents.

Each of the parents has the right to perform legal activities, which are in the interests of the child if there exists a default risk. In respect of the activities performed, he or she has a duty to notify the other parent without delay, except in the case where such activities have been performed by the parent who has the right to solely represent the child.

4.2.4 Other restrictions for legal representatives:

4.2.4.1 Is it necessary that the transaction to be approved also by some other person or authority (e.g. parent, court or local government)? What are the formal requirements on the form of the approval?

The property of minor children shall be under parental administration.
In the administration of the property of children, parents have the same rights and duties as guardians (Section 190-191 of the Civil law).

Contracts and other legal transactions may be entered into only with the consent of an Orphan’s court.

4.2.4.2 Name the transactions that persons legally representing the minor may enter into only with the consent of a court or some other authority or person appointed by law.

An Orphan’s court shall defend the property interests and rights of a child –in both cases: custody exercised by parents and by a custodian-; (Section 17 of the Law On Orphan’s Courts).

In protecting the property interests of a child in the cases provided for in the Civil Law an Orphan’s court shall  (Section 21 of the Law On Orphan’s Courts):

• take a decision regarding the permission to accept or reject the inheritance accruing to a child on his or her behalf;
• take a decision regarding the sale of the property belonging to a child for the market value or at auction;
• take a decision regarding the division of the inheritance, alienating, pledging or encumbrance of the property of a child (if the value thereof does not exceed EUR 14 000) with other property rights;
• take a decision regarding the usefulness of the alienating, pledging or encumbrance of the immovable property belonging to a child (if the value thereof exceeds EUR 14 000) with other property rights;
• take a decision regarding the acquisition of property for a child;
• appoint a guardian for entering into legal transactions between a child and parents;
• take a decision regarding the removal of the rights of administration and use of an inheritance if the surviving spouse administers or uses the inheritance accruing to the child negligently;
• take a decision regarding depriving a parent of the administration of the child’s property if the parent’s administration of the property of the child does not correspond to the interests of the child; and
• perform other measures for the protection of the property rights of a child.

4.2.4.3 In case of a mandatory approval of the transaction by another person (e.g. the other parent) or authority (e.g. court) is there any difference whether the approval is given before or after the transaction? What are the legal consequences for the transaction if the approval required by law is denied?

For each such transaction, the guardian shall, in advance, request permission from the Orphan’s court.

Legal transactions that a guardian has entered with the Orphan’s court’s consent, shall be binding and may not be contested later (Section 263 of the Civil law).

A minor also may not independently enter into such transactions as a guardian may not enter into without the permission of an Orphan’s court.

4.2.4.4 Are there certain cases in which the legal representatives shall not act (e.g. contract on behalf of the minor concluded with parent or family member)?

Contracts and other legal transactions between the minor and his or her guardian may be entered into only with the consent of an Orphan’s court. If the minor has only one guardian, then in such case another one shall be appointed for him or her (Section 268 of the Civil law).

In protecting the property interests of a child in the cases provided for in the Civil Law an Orphan’s court shall (Section 21 of the Law On Orphan’s Courts) appoint a guardian for entering into legal transactions between a child and parents.

4.3 Are there any other restrictions related to the rights of a minor (e.g. the right of succession) for the persons who have the right of custody or the right of legal representation of a minor in addition to the restrictions specified above?

No.

4.4 May the right of representation be transferred to another person by means of a power of attorney?

Yes.

4.4.1 Is the consent of all legal representatives to the transfer mandatory?

4.4.2 Are there any restrictions to this type of power of attorney (e.g. the right of representation may not be transferred in its entirety or is cannot be transferred in regard to certain transactions)?

4.4.3 What are the formal requirements for this type of power of attorney?

The legal representative may authorise other persons (e.g. they can issue power of attorney in the form of a notarial authentic document) to represent the minor (for example in the case of parents that place the child into the care of another person for a period of time exceeding three months, if prior to placement the Orphan’s court of the place of residence of the parents has recognised that such placement conforms to the interests of the child and the person will be able to provide appropriate care for the child.).

5.1 Does the law provide some kind of document, that gives evidence of the right of custody and/or representation?

Yes.
There is no such document for the legal representatives (parents).
An Orphan’s court shall issue the certificate for the receipt of social guarantees – Certificate of a Guardian- to an orphan or a child left without parental care.

5.2 Is there any other kind of document, that proves the right of custody and/or representation?

Yes.
The birth certificate can provide evidence of who the child’s parents are.
The entries in registers of civil status documents in the unified register of civil status documents and in printed form and the documents certifying registration issued on the basis thereof shall prove the registration of the fact of birth in registers of civil status documents (Article 46 of the Law On Registration of Civil Status Documents).

6.1 What are the requirements for the formal validity of such a consent/permission/autorisation?

A child may cross the State border accompanied by both parents or one of them, or a guardian, or a person authorised by them. A child who has attained the compulsory schooling age (7 years) may cross the State border independently with the consent of both or one of their parents or of their guardian (Article 76 of the Protection of the Rights of the Child Law).

If a child, who is a national of Latvia, departs from the State accompanied by a parent, he or she shall present the following documents:

• a travel document of the parent with an entry regarding the relationship of the child to the parent accompanying the child; ou
• the child’s birth certificate or a notarially certified copy thereof, if in the travel document of the parent accompanying the child there is no entry regarding relationship with the child (Article 7 of the Procedures by which Children Cross the State Border).

If a child, who is a national of Latvia, departs from the State independently, he or she shall present a notarially certified consent of at least one parent (a citizen of Latvia, non-citizen of Latvia, a citizen of the European Union Member State, European Economic Area State or Swiss Confederation or a stateless person to whom the status of the stateless person has been granted in the Republic of Latvia, European Union Member State, European Economic Area State or Swiss Confederation) or a guardian for the independent departure of a child from the State.

If a child, who is a national of Latvia, departs from the State accompanied by an authorised person, he or she shall present a notarially certified authorisation by at least one parent (a citizen of Latvia, non-citizen of Latvia, a citizen of the European Union Member State, European Economic Area State or Swiss Confederation or a stateless person to whom the status of the stateless person has been granted in the Republic of Latvia, European Union Member State, European Economic Area State or Swiss Confederation) or a guardian for the departure of a child from the State accompanied by this authorised person.

An orphan or a child left without parental care who is a national of Latvia and who has been placed in a childcare institution or given to a foster family, may depart from the State independently presenting a decision regarding permission for the child to independently depart the State or accompanied by an authorised person, presenting a decision regarding permission for the child to departure the State accompanied by this authorised person. The decision regarding permission for a child to independently leave the State or accompanied by the authorised person shall be issued by the Orphan’s court by the decision of which the child was placed in childcare or given to a foster family.

Part 1: Protective measures for adults with diminished capacity

In cases where a person has health disorders of a mental or other nature and cannot understand the meaning of his or her actions or cannot control his or her actions, a court may establish temporary trusteeship without restriction of the capacity to act in accordance with the procedures laid down in the Civil Procedure Law, if 1) it is urgently necessary in the interests of a person, 2) disorders are temporary, 3) a person cannot cause damage to himself or herself by his or her active actions. A court shall establish temporary trusteeship that does not exceed two years (Article 364.2 of Civil Law).

In other cases, if a person has health disorders of a mental or other nature, his or her capacity to act may be restricted, if it is necessary in the interests of this person and it is the only way to protect his/her. In such cases, trusteeship shall be established for the person (Article 357 of Civil Law).

The capacity to act for a person with health disorders of a mental or other nature may be restricted to the extent that he or she cannot understand the meaning of his or her actions or cannot control his or her actions. A court, when assessing the abilities of a person, at first shall determine whether and to what extent a trustee with a person under trusteeship act together and – only after that – whether and to what extent the trustee acts independently (Article 358.1 of Civil Law).

In determining the extent of restriction of the capacity to act, the court shall take such circumstances into consideration, regarding which evidence has been submitted. In determining the extent of restriction of the capacity to act, upon a request of a participant in a case, the court may consider restricting the capacity to act in such areas as 1) making and receiving payments, 2) entering into transactions, 3) action involving property and management thereof, particularly alienation, pledging and encumbering of immovable property with property rights, 4) conducting of commercial activity and economic activity (Article 268 of Civil Procedure Law).

The restriction of the capacity to act determined by the court shall be reviewed in accordance with the procedures laid down in the Civil Procedure Law. A court judgment regarding the restriction of the capacity to act shall be in effect until the time when another court adjudication is taken on the issue. The court judgment regarding the restriction of the capacity to act may be reviewed at any time but not less than once in seven years from the day of coming into effect thereof (Article 364.1 of Civil Law)

Part 2: The possibilities of anticipating a future loss of capacity

Latvian law provides the preventive acts to ensure that the will of the person who loses his or her capacity is respected. The aim is to anticipate solutions for the following situations:

A. Living wills/ lasting powers of attorney (“nakotnes pilnvarojums”) offer the possibility of appointing a trusted person before a notary as a representative in the event that a person may lose his or her ability to act, as a result of an accident, illness or advanced age. This allows decisions on the person and his/her property, without a judicial decision declaring the incapacity to take place.

B. Any person with sufficient capacity to act may appear before a notary to propose for the future the person whom he or she wishes to have appointed by the judge as his/her legal representative when he or she is in a situation of incapacity and trusteeship, and to establish the measures or criteria to be taken into account with regard to his/her person or property (“aizgadnis”).

C. Advance decisions on medical treatment (“nakotnes pilnvarojums”) are used to provide instructions or to appoint the trusted person to give them at the appropriate time in the event that a person is no longer able to express his or her willingness to accept or refuse medical treatment, for example as a result of an accident or illness. The measures provided for in the advance decision cover only the doctor-patient relationship relating to the respect of the patient’s will with regard to the application of palliative pain treatments, the use of disproportionate and extraordinary treatments or the abusive and irrational extension of the patient’s life.