Published on 30 September 2024
FIRST SECTION
Application no. 23032/22
B. N.
against Poland
lodged on 29 April 2022
communicated on 9 September 2024
SUBJECT MATTER OF THE CASE
In June 2018 the applicant’s then-husband, X., filed for divorce requesting that their daughter (born in 2013) live with her mother (the applicant) and that both parents retain parental rights. The applicant agreed to the divorce. In October 2018 during the first hearing before the Gdańsk Regional Court, composed of judge D.C. and two lay judges, the applicant was repeatedly questioned about her sexual orientation. Judge D.C. suggested to X. that he should request custody of the child and that the daughter should not live with the applicant because of her sexual orientation. Judge D.C. ordered an expert opinion from the Family Consultation Centre (“RODK”) and asked the experts whether the mother’s sexual orientation could put the child’s wellbeing at risk. The opinion of Gdańsk RODK of 18 March 2019 stated that both parents had good parenting skills and ended with the statement: “we believe that the mother’s sexual preference does not jeopardise the wellbeing of the child.” In the course of the subsequent hearings, the applicant’s sexual orientation was constantly at the centre of judge D.C.’s interest.
In January 2019 X. changed his claim and requested that their daughter live with him. He submitted that the applicant lived with a woman by which she “had shown to the child that a relationship between two women was something natural and not wrong”.
On 8 November 2019 the Gdańsk Regional Court, sitting in a single-judge formation, judge D.C., gave an interim order granting the custody of the child to the father. The applicant’s appeal against the ruling was dismissed. The applicant was granted visiting rights, which were not respected over time as X. refused to hand over the child to the applicant.
On 18 November 2019 the applicant challenged the impartiality of judge D.C. She claimed that the judge had been biased against her because of her sexual orientation. In December 2019 the Gdańsk Regional Court dismissed her application on the grounds that there was no objective reason to doubt the impartiality of judge D.C. On 7 July 2020 the same court dismissed the applicant’s appeal.
On 31 July 2020 the Gdańsk Regional Court granted the divorce. It decided that the daughter should live with her father, granted the applicant visiting rights and limited her parental rights. In the written reasoning, the court referred to the applicant’s relations with other women. On 5 November 2021 the Gdańsk Court of Appeal dismissed the applicant’s appeal. This judgment was notified to the applicant’s lawyer on 4 January 2022.
The applicant complains under Articles 6 and 8 of the Convention, and Article 14 taken together with Article 8, that she lost custody and full parental rights over her child because judge D.C. was biased against her due to her sexual orientation. She also complains that X. has not respected contact rights and that the courts have not attempted to enforce them effectively.
QUESTIONS TO THE PARTIES
1. Regard being had to the applicant’s allegation that the courts decided on the custody of her child and limited her parental rights on the basis of her sexual orientation, has the applicant suffered discrimination in the enjoyment of her Convention rights, contrary to Article 14 of the Convention read in conjunction with Article 8 (see X v. Poland, no. 20741/10, 16 September 2021)?
2. Regard being had to the applicant’s second allegation that judge D.C. was biased against her and the fact that the domestic courts dismissed her challenge against the judge, did the applicant have a fair hearing in the divorce proceedings, in accordance with Article 6 § 1 of the Convention?
3. Regard being had to all the allegations indicated in questions 1 and 2 above, and that the applicant’s contact rights had not been respected, has there been a violation of the applicant’s right to respect for her private and family life, contrary to Article 8 of the Convention?
4. As concerns the enforcement of the applicant’s contact rights, did she exhaust available domestic remedies in this respect?