Information Note on the Court’s case-law 194

March 2016

K.J. v. Poland - 30813/14

Judgment 1.3.2016 [Section IV]

Article 8

Positive obligations

Article 8-1

Respect for family life

Refusal to order child’s return pursuant to Hague Convention in view of abducting mother’s unwillingness to return with child: violation

Facts – The applicant and his wife, Polish nationals living in the United Kingdom, had a daughter. When the child was two years old, the applicant’s wife took her to Poland on holiday. Subsequently, she informed the applicant that they would not be coming back and initiated divorce proceedings. The applicant’s request for the return of his daughter under the Hague Convention on the Civil aspects of International Child Abduction (“the Hague Convention”) was dismissed by the Polish courts on the ground that the child’s return to the UK with or without her mother would put her in an intolerable situation within the meaning of Article 13 (b) of the Hague Convention. Under that provision, a State is not bound to order the return of a child if it is established that there is a grave risk that the child would be exposed to psychological harm or otherwise placed in an intolerable situation.

Law – Article 8: While Article 13 (b) of the Hague Convention was not restrictive as to the exact nature of the “grave risk”, it could not be read, in the light of Article 8 of the European Convention, as including all of the inconveniences necessarily linked to the experience of return: the exception provided for concerned only situations which went beyond what a child might reasonably be expected to bear.

It was for the applicant’s estranged wife, who opposed the child’s return, to substantiate any potential allegation of specific risks under that provision. Although both of her arguments – the break-up of the marriage and her fear that the child would not be allowed to leave the United Kingdom – fell short of the requirements thereof, the domestic courts had nevertheless p