FIRST SECTION
CASE OF MOGA v. POLAND
(Application no. 80606/17)
JUDGMENT
STRASBOURG
17 March 2022
This judgment is final but it may be subject to editorial revision.
In the case of Moga v. Poland,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Erik Wennerström, President,
Krzysztof Wojtyczek,
Ioannis Ktistakis, judges,
and Liv Tigerstedt, Deputy Section Registrar,
Having regard to:
the application (no. 80606/17) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Mr Gyorgy Moga (“the applicant”), on 16 November 2017;
the decision to give notice to the Polish Government (“the Government”) of the application;
the decision of the Hungarian Government not to make use of their right to intervene in the proceedings (Article 36 § 1 of the Convention);
the parties’ observations;
Having deliberated in private on 22 February 2022,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the alleged lack of swift examination by the domestic court of “wrongful child abduction” proceedings under the Hague Convention.
THE FACTS
2. The applicant was born in 1978 and lives in Brighton. He was represented by Mr D.A. Karsai, a lawyer practising in Budapest.
3. The Government were represented by their Agents, Ms J. Chrzanowska and, subsequently, Mr J. Sobczak, of the Ministry of Foreign Affairs.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
Background5. In 2012 the applicant married K.Z., a Polish national with whom he had a son, born in April 2012, and a daughter, born in November 2013. The children have dual Polish and Hungarian nationality.
6. Both children were born in Poland. They have a registered residence in Poland at the home of their maternal grandparents. In the United Kingdom, the couple owned a house and a car. Prior to 2016, the children travelled frequently between Poland, Hungary and the United Kingdom. They lived, on and off, in Poland and in the United Kingdom, together with their mother and/or with both parents. They attended nursery school in the United Kingdom. Both parents consented to such a lifestyle and they exercised jointly their parental responsibility.
7. The applicant works as a physician in Brighton. K.Z. is a psychologist who has worked, at intervals, in the United Kingdom and in Poland.
8. In July 2014 the Polish Public Prosecution Service discontinued an investigation into allegations that the applicant had committed acts of domestic violence, as K.Z. had withdrawn the complaint that she had lodged.
9. Also in July 2014 the Łódź District Court (Sąd Rejonowy) discontinued proceedings for restricting the applicant’s parental rights.
10. In 2015 and 2016 K.Z. sought assistance from a psychologist in Poland and from a British association working with victims of domestic violence.
11. In June 2016 K.Z. and the children went to live in Poland. The applicant submitted that he had never consented to them settling there. He stated that K.Z. had bought return tickets for herself and the children and that the children’s places at their nursery in the United Kingdom had been booked and paid for. The applicant submitted documents confirming that information.
12. Several days after their arrival in Poland, the applicant, without K.Z.’s consent, removed the children from Poland and took them first to Hungary and then to the United Kingdom. The applicant explained that he had only taken the children to Poland to have them attend the proceedings that had ultimately led to the ruling described in paragraph 21 below.
13. On 6 July 2016 the applicant was stopped in the United Kingdom by the police, and the children were examined by a social worker. An extract from a social services log dated 6 July 2016 contains handwritten entries such as “enhanced care” or “good growth and interactions with father”. The children and their father remained in Brighton.
14. On 29 July 2016 K.Z. retrieved the children from the applicant and returned with them to Poland.
15. Since that time, the children have been living with their mother in their maternal grandparents’ house in Łódź. The applicant’s son attends a kindergarten and is monitored by a psychologist because he initially manifested signs of fear and anxiety. He speaks Polish and Hungarian. The applicant’s daughter speaks Polish only.
Proceedings concerning the children’s residenceProceedings in Poland16. On 14 July 2016 the Łódź District Court, sitting as a single judge (K.R.), declined jurisdiction to examine K.Z.’s application to be allowed to establish the children’s sole residence with her in Poland. The court considered that the centre of the family’s life was in the United Kingdom and that the children’s stay in Poland had only been temporary.
17. An interlocutory appeal against that decision was lodged (apparently by K.Z.).
18. On 5 August 2016 the Łódź District Court, sitting as a single judge (K.R.), referring to Article 395 § 2 of the Code of Civil Procedure, quashed its earlier decision on jurisdiction and issued an interim measure, ruling that the children’s sole residence was with their mother. The court deemed that, at the date on which the initial application concerning the children’s residence had been lodged by K.Z. (2 June 2016), the children’s habitual residence had been in Poland. Moreover, they had been born and had spent a part of their childhood in Poland, had their maternal grandparents there and received medical care in that country. In view of their young age, the children had a stronger bond with their mother. Lastly, in view of the fact that the applicant had taken the children out of Poland without K.Z.’s consent, the court considered that an interim order was necessary.
19. On 6 October 2017 the Łódź District Court, with K.R. as presiding judge, stayed those proceedings until the completion of the couple’s divorce proceedings.
20. The applicant submitted that he had not been summoned to these proceedings or served with some of the above-mentioned decisions.
Proceedings in the United Kingdom21. On 18 July 2016 the Family Court in Brighton issued an interim order, ruling that neither parent should remove the children from the jurisdiction of England and Wales without the prior written consent of the other parent or a court order, save in the event that it was necessary for the children to travel with one or both parents to Poland for a court hearing in Poland concerning the children.
22. On 14 November 2017 the Family Court in London gave a judgment declaring that: on 2 June 2014 and 4 July 2016, the children had had their habitual residence in England and that the Family Court of England and Wales had had exclusive jurisdiction to deliver a judgment in respect of the welfare proceedings in relation to the children. The court also ordered that K.Z. return the children to England and Wales by no later than 15 December 2017 and that, following their return, the children should live at their family home in Brighton.
23. On 30 January 2018 the Family Court in London upheld its own decision of 14 November 2017 and ruled that K.Z. was to return the children by 27 February 2018 on pain of being held in contempt of court, imprisonment, a fine or the seizure of her assets.
24. On 12 July 2018 the Royal Courts of Justice in London set aside the above order, holding that – given the fact that the children had been in Poland for eighteen months by the time that the Family Court had delivered its decision of 30 January 2018 – the English courts had lost jurisdiction over the case.
Proceedings under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”)25. On 4 October 2016 an application lodged with the United Kingdom authorities by the applicant for a return order for the children under the Hague Convention was registered with the Łódź District Court, sitting as a single judge (K.R.).
26. In response to the applicant’s application, K.Z. submitted that Poland was the centre of the family’s life and that taking the children back to Poland on 29 July 2016 had thus not constituted “wrongful abduction”, within the meaning of the Hague Convention.
27. On 5 December 2016 the District Court held a hearing. The applicant attended the hearing with an interpreter and his lawyer. A prosecutor from the State Prosecutor’s Office was also present at the hearing.
28. On 7 December 2016 the District Court, sitting as a single judge (K.R.) dismissed the applicant’s Hague Convention application to have the children returned.
29. The court reached its findings of fact, inter alia, on the basis of: the submissions of the parties; a report regarding the maternal grandparents’ and the family’s home environment in Poland, prepared by a guardian (kurator) (presumably appointed by the court in the course of the divorce or childcare proceedings); a report prepared by the headmistress of the children’s Polish kindergarten; incident reports drawn up by the Brighton police; a report by the British social worker who had conducted the examination of the children on 6 July 2016 (see paragraph 13 above); copies of emails sent by the parties to each other regarding their plans for a divorce and their quarrels; certificates from centres helping victims of domestic violence in Poland and in the United Kingdom; and material relating to the case for restricting the applicant’s parental rights and to the criminal inquiry carried out in Poland into K.Z.’s allegations of domestic violence.
30. As regards the law, the court held firstly that the applicant’s children had not been wrongfully removed or retained within the meaning of Article 3 of the Hague Convention, given that Poland was their habitual residence. To that end the court relied on the principle that a child’s habitual place of residence was to be determined in accordance with an objective element – namely the child’s long-term and steady residence in a place in which all of the child’s needs were satisfied, irrespective of whether or not there was any intention on the part of the child’s guardians to take up permanent residence there (Supreme Court decision no. I CKN 776/00 of 26 September 2000). The first-instance court accordingly observed that, in June 2016, the applicant had agreed to the family moving to Poland and that frequent travelling between that country and the United Kingdom was their well-established practice. The applicant’s children had been born and had spent most of their lives in Poland, together with their mother, who exercised custody. The children had Polish health insurance and their registered residence in Poland. They received medical care in Poland and, most importantly, they spoke Polish and not English. In the United Kingdom, the children had no circle of friends (partly as a result of the language barrier) and none of their relatives lived there. Various elements of the family’s life in the United Kingdom, which had been raised by the applicant in the course of the proceedings – such as the fact that K.Z.’s car was registered in the UK, the couple had taken out a mortgage with a British bank, the family received UK child benefits, and the children were entitled to medical care in the UK, and the fact that K.Z. had been employed by her husband’s company for one year and paid taxes in the United Kingdom – did not undermine, in the court’s view, the fact that Poland was the children’s and K.Z’s habitual place of residence, particularly in view of the fact that K.Z. had kept her job in Poland and had retained her ownership of an apartment there.
31. Secondly, the District Court attached importance to the fact that the applicant had taken the children from Poland to Hungary without the mother’s knowledge or consent and to the uncontested fact that while there the children had not had any contact with their mother for ten days. It also took note of the fact that the proceedings that were pending before the Family Court in Brighton had been stayed until the Polish court confirmed that it had jurisdiction over the case.
32. Thirdly, the District Court observed that, irrespective of the above findings, the basis for its refusal to have the children returned to the applicant was Article 13 (b) of the Hague Convention (that is to say there existed a grave risk that the children’s return to the United Kingdom would expose them to psychological harm or to an intolerable situation). The court acknowledged that the burden of proving the existence of specific circumstances that could fall under that provision rested on K.Z. In the court’s view, the children would be at grave risk of suffering psychological harm or of being placed in an intolerable situation, as they were likely to continue witnessing their father’s violence and abuse of their mother. To this end, the court found that sufficient evidence had been presented to confirm that, from 2014 (or possibly earlier), the children had witnessed such violence. Moreover, the court condemned the applicant’s parenting methods (such as leaving his crying daughter in a room) and the physical violence used by the paternal grandfather towards his grandson. The court also excluded the option (sought by the applicant) of separating the siblings, in view of their strong emotional bond. Lastly, the court ruled that if the children were to return to the United Kingdom and were to live with the applicant, they would be at risk of mental and physical suffering because of: the applicant’s practice of feeding them food collected from street rubbish bins; the lack of a safe home environment (given that a part of the applicant’s house served as a hostel, with rooms being rented out to strangers); the risk that the children would be neglected, in view of the real fear that the applicant would frequently travel to Hungary, leaving the children with a nanny; the fact that the applicant’s daughter spoke only Polish and would thus not be able to communicate her needs to her father; and the fact that the applicant favoured his son and had only a weak bond with his daughter.
33. On 26 January 2017 the Łódź Regional Court dismissed a complaint under the Law of 17 June 2004 regarding a breach of the right to an investigation conducted or supervised by a prosecutor and to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki), which had been lodged by the applicant on 29 November 2016, when the first-instance proceedings had been ongoing. The court held that the impugned proceedings had not been marked by delays. The first hearing in the case had been scheduled for 18 November 2016 – that is to say the earliest possible date, given that the presiding judge had been examining other cases and had then left for a planned holiday. Later, the case was adjourned to 5 December 2016 owing to the hospitalisation of the parties’ daughter.
34. On 13 June 2017 the Łódź Regional Court (sitting in a bench of three judges, J.R.-G., G.L. an B.U.) dismissed an appeal lodged by the applicant against the first-instance decision on the merits of his Hague Convention application. The appellate court upheld the findings of fact and law of the first-instance court. In particular, it found convincing the conclusion that the children’s habitual residence was in Poland, as it had been based on various elements that, taken together, confirmed the children’s link with that country. The appellate court also attached importance to the strong bond between the two siblings and the doubts as to the applicant’s ability to take care of his young daughter, given that she did not speak Hungarian.
Proceedings concerning the applicant’s contact with the children35. On 20 December 2016 the applicant lodged an application with the Łódź District Court for an interim contact order granting him access to the children on 28, 29 and 30 December 2016 at their place of residence.
36. On 28 December 2016 the Łódź District Court dismissed that application on the grounds that the applicant had failed to apply to be granted contact rights under Article 21 of the Hague Convention and had thus failed to justify that application. The court found that K.Z. had not been hindering the applicant’s contact with the children. In fact, the applicant had had seen his children each time that he had been in Poland during the period between September and December 2016 and he had talked with his children over Skype.
37. On 17 January 2017 the applicant lodged an application to have his contact rights secured ad interim – namely, to be granted access to the children from 27 until 30 January and from 24 until 27 February 2017 and on 24 March 2017.
38. On 9 February 2017 the Łódź District Court dismissed the application, holding that the applicant had failed to apply for contact under Article 21 of the Hague Convention.
39. On 13 June 2017 the Łódź Regional Court dismissed the applicant’s interlocutory appeal against the latter decision on the interim measure of 9 February 2017.
40. On 13 July 2016 K.Z. petitioned for divorce before the Łódź Regional Court.
41. On 3 March 2017 the applicant lodged with the family court that was examining his divorce case, an application for an interim measure in respect of his contact with the children.
42. On 9 May 2017 the Łódź Regional Court decided to grant the applicant the right to contact his children by Skype or telephone on selected days three times per week and to visit them two weekends per month.
43. Following an appeal by both parties, on 25 October 2017 the Łódź Court of Appeal slightly amended the visitation schedule as ordered in the first-instance decision.
RELEVANT LEGAL FRAMEWORK AND PRACTICE
44. The relevant domestic law and practice, and international and comparative law, are set out in the judgment in the case of K.J. v. Poland (no. 30813/14, §§ 33-42, 1 March 2016) and in the judgment in the case of M.V. v. Poland (no. 16202/14, §§ 45-55, 1 April 2021).
THE LAW
ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION Relating to THE HAGUE CONVENTION45. The applicant essentially complained, citing Articles 8 and 14 of the Convention and Article 5 of Protocol No. 7 to the Convention, that the Polish court (i) had not ordered the return of his children; and (ii) had sanctioned the children’s alienation from him by not deciding the Hague Convention application in a speedy manner.
46. The Court, being the master of characterisation to be given in law to the facts of the case, considers that the complaint falls to be examined under Article 8 of the Convention only (see, mutatis mutandis, Piekarska and 32 other applications v. Poland (dec.), no.8585/13, § 95, 17 May 2016). This provision reads as follows:
“1. Everyone has the right to respect for his private and family life, ...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Admissibility47. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.
MeritsParties’ submissions(a) The applicant
48. The applicant argued that the Polish courts had committed a manifest error of interpretation of the Hague Convention, both in respect of the notion of the wrongful abduction and in respect of Article 13. As a result, the Polish courts had ruled against the best interests of the applicant’s children. The courts’ rulings in respect of his Hague Convention application had also been one-sided, as all his evidence had been completely ignored.
49. The applicant stressed that no court had ever concluded that the allegations of domestic violence had been true. He also pointed out that the court’s line of reasoning in respect of the risk that the children would witness domestic violence was illogical, given that he and K.Z. had separated.
50. He moreover argued that the children’s language skills should not have been given any consideration in view of the very young age of his daughter and the fact that his son’s English skills had deteriorated because of his forced departure from the United Kingdom. In any event, the applicant argued that his daughter could communicate in Hungarian, which, according to him, he had proved to the Polish court by means of video recordings of the girl speaking that language.
51. Lastly, the applicant argued that the decision-making process leading to the adoption of the impugned decision under the Hague Convention was contrary to the procedural requirements of Article 8. In this context, the applicant argued that the proceedings had not been expeditious. He also pointed out that the first-instance court’s decision concerning his Hague Convention request had been issued by the same single judge who had previously ruled in the proceedings concerning the children’s residence of which he had not been notified.
(b) The Government
52. The Government argued that the interference that had occurred in the present case had been lawful and justified, within the meaning of paragraph 2 of Article 8 of the Convention, and therefore revealed no violation of that provision.
53. In particular, the domestic courts had assessed, on the basis of reliable and comprehensive evidence, what would be in the children’s best interests. The domestic courts had given relevant and sufficient reasons for holding that the children, if returned to the United Kingdom, would be at grave risk of suffering psychological harm or of at any rate being placed in an intolerable situation. Such harm would result, firstly, from the applicant’s lifestyle, and secondly, from his harsh parenting methods. The courts had also relied on the fear that the applicant’s daughter, who only spoke Polish, would not be able to communicate her needs to the applicant.
54. The Government further stressed that the impugned proceedings had been completely adversary in nature and that the applicant had therefore been able to participate effectively.
55. Lastly, the Government submitted that the proceedings had been carried out diligently and swiftly, considering their complexity and the fact that the applicant had filed numerous procedural motions. Overall, courts of two jurisdictions had taken only eight months to examine the case. Hearings had been scheduled frequently and no periods of inactivity or delays had arisen. The length of the proceedings had not affected the applicant’s bond with the children, as his contact had at all times been effectively ensured.
The Court’s assessment(a) General principles
56. The general principles regarding the relationship between the Convention and the Hague Convention, the scope of the Court’s examination of international child abduction applications, the best interests of children and the procedural obligations of the States are laid down in the Court’s Grand Chamber judgment in the case of X v. Latvia ([GC], no. 27853/09, §§ 93‑108, 107 ECHR 2013), as well as in a number of other judgments concerning proceedings for the return of children under the Hague Convention (see Maumousseau and Washington v. France, no. 39388/05, § 68, 6 December 2007; Ignaccolo-Zenide v. Romania, no. 31679/96, § 102, ECHR 2000‑I; Iosub Caras v. Romania, no. 7198/04, § 38, 27 July 2006; Shaw v. Hungary, no. 6457/09, § 70, 26 July 2011; Adžić v. Croatia, no. 22643/14, §§ 93-95, 12 March 2015; and R.S. v. Poland, no. 63777/09, 54 and 55, 21 July 2015).
(b) Application of the general principles to the present case
57. In the instant case, the primary interference with the applicant’s right to respect for his family life may not be attributed to an action or omission on the part of the respondent State, but rather to the action of K.Z. – a private individual, who took their son and daughter to Poland. That action nevertheless placed the respondent State under a positive obligation to secure for the applicant his right to respect for his family life, which included examining his application under the Hague Convention with a view to ensuring his prompt reunification with his children (see G.N. v. Poland, no. 2171/14, §§ 47 and 48, 19 July 2016).
58. In the present case, the domestic courts took eight months to examine the applicant’s application for the return of his daughter and son, and to ultimately dismiss it on the grounds that (i) the abduction of the children from the United Kingdom had not been wrongful, within the meaning of Article 3 of the Hague Convention (see paragraph 30 above); and (ii) in any event, the return of the children would be in breach of Article 13 of the Hague Convention (see paragraph 32 above).
59. The Court finds that the events under consideration, in so far as they give rise to the responsibility of the respondent State, amounted to an interference with the applicant’s right to respect for his family life (see G.N. v. Poland, cited above, § 50, with further references).
60. Turning to the impugned proceedings concerning the children’s abduction, the domestic courts cited, as the legal basis of their decisions, the Hague Convention, which entered into force in Poland in 1992 and which forms part of its domestic law. Moreover, the domestic courts acted in what they considered to be the pursuit of the legitimate aim of protecting the rights of the children (see G.N. v. Poland, cited above, § 51, with further references).
61. The Court must therefore examine the reasoning of the impugned judicial decisions and determine whether the interference in question was “necessary in a democratic society” within the meaning of Article 8 § 2 of the Convention, interpreted in the light of the relevant international instruments, and whether, when striking a balance between the competing interests at stake, appropriate weight was given to the children’s best interests, within the margin of appreciation afforded to the State in such matters (see G.N. v. Poland, cited above, § 52).
62. In the present case, the grounds for the refusal to grant the applicant’s Hague Convention proceedings were as follows. Firstly, the applicant’s children had not been wrongfully removed or retained, within the meaning of Article 3 of the Hague Convention, given that Poland was their habitual residence (see paragraph 30 above). As a result, the exception permitted under Article 13 (b) of the Hague Convention applied in the present case (see paragraph 32 above).
63. As to the latter, the domestic court of first instance acknowledged that the burden of proving the existence of specific circumstances that could fall under Article 13 (b) of the Hague Convention rested on K.Z. In the court’s view, she had sufficiently proved that, if returned to live with the applicant, the children would continue to witness their father’s violence towards and abuse of their mother and they would also be at risk of mental and physical suffering (see paragraph 32 above).
64. The Court reiterates that its task is not to take the place of the relevant authorities in determining where the children’s habitual residence was or whether a grave risk exists that the children would be exposed to psychological harm if they returned to the United Kingdom. However, the Court is in a position to ascertain whether the domestic courts, in applying and interpreting the provisions of the Hague Convention, secured the guarantees set forth in Article 8 of the Convention, taking into particular account the child’s best interests (see K.J. v. Poland, no. 30813/14, § 63, 1 March 2016).
65. The Court observes that it was K.Z. who opposed the children’s return. It was therefore for her to make and to substantiate any potential allegation of specific risks under Article 13 (b) of the Hague Convention. The Court reiterates that this provision is not restrictive as to the exact nature of any “grave risk”; such a risk might entail not only “physical or psychological harm” but also “an intolerable situation” (see K.J. v. Poland, cited above, § 64)
66. All things considered, the Court finds that the reasoning of the domestic courts did not fall short of the relevant requirements of Article 13 (b) of the Hague Convention in the sense that K.Z. had indeed presented the domestic courts with a series of objective arguments concerning the well-being of the children and not any of her own inconveniences or obstacles (contrast K.J. v. Poland, cited above, §§ 65 and 66).
67. The Court acknowledges that, as the applicant pointed out, the argument that the children would witness the applicant’s alleged abuse of K.Z., seems to be misplaced as they had separated (see paragraph 49 above). The Court, however, cannot consider that the domestic courts’ consideration of other alleged risks was manifestly misguided. The Court is led to a similar conclusion in respect of the domestic courts’ finding that the actual habitual residence of the children was Poland.
68. Moving on to its analysis of the decision-making process, the Court observes that despite the recognised urgent nature of the Hague Convention proceedings, a period of eight months elapsed between the date on which the applicant’s application for the return of the children was registered with the Łódź District Court and the date of the final decision (see paragraphs 25 and 34 above). Consequently, even though the six-week time-limit set forth in Article 11 of the Hague Convention and Article 11 of the EU Regulation on Recognition of Judgments (which applies to both first-instance and appellate proceedings) was non-obligatory, exceeding it by approximately twenty-six weeks (in the absence of any circumstances capable of exempting the domestic courts from the duty to strictly observe it) did not meet the urgency required in that situation and was not in compliance with the positive obligation to act expeditiously in proceedings for the return of children (compare, R.S. v. Poland no. 63777/09, § 70, 21 July 2015).
69. The delays in the procedure alone may enable the Court to conclude that the authorities did not comply with their positive obligations under the Convention, given the requirement of expedition, which lies at the core of the Hague Convention procedure (see Shaw, cited above, § 71, in respect of which the proceedings lasted for over eight months).
70. In the present case, the Government essentially argued that the nature of the proceedings had required the domestic courts to act with diligence and to duly examine the applications lodged by the applicant – which the courts had indeed done. The Government also implied that the length of the impugned proceedings had not had major repercussions on the applicant, given the fact that his right to contact with his children had been secured, pursuant to court orders and the mother’s willingness to facilitate such contact.
71. The Court reiterates that, because the lapse of time risks compromising the position of a non‑resident parent irretrievably, the specific nature of the Hague Convention proceedings requires domestic courts to rely on the presumption that an immediate return of the child to his or her habitual residence is in the child’s best interest (see, mutatis mutandis, McIlwrath v. Russia, no. 60393/13, § 126, 18 July 2017, with further references). Such a presumption is rebuttable, and the courts thus must indeed examine the circumstances of each case so as to ensure that the elements required for the application of, inter alia, Articles 3 and 13 of the Hague Convention are in place. Still, they must act expeditiously.
72. In the present case, the first court hearing was held six weeks after the registration of the applicant’s Hague Convention application (see paragraphs 25 and 33 above). The domestic authorities were satisfied that the hearing had been scheduled for the earliest possible date, considering that the presiding judge had been examining other cases and had then left for a planned holiday (see paragraph 33 above). The Court takes issue with such an approach to such proceedings, which require, under international law and because of their nature, swiftness.
73. Later, the case was adjourned to 5 December 2016 in view of an objective obstacle – namely the hospitalisation of the parties’ daughter (see paragraphs 27 and 33 in fine above). The first-instance court completed its examination several days later (see paragraph 28 above). The Court considers that this part of the proceedings was not marked by any avoidable delays.
74. As regards the appellate proceedings, the Court notes that the Łódź Regional Court issued its ruling only on 13 June 2017 (see paragraph 34 above), that is over six months after the first-instance decision. Such a delay undermines the expeditious nature of the Hague Convention proceedings.
75. Moreover, the Court observes that, unlike in many other child abduction cases, the domestic courts did not have to wait for any expert report to be drawn up. Such a report was never ordered in the present case. The courts relied, instead, on the material that had already been produced for the purposes of all the other proceedings described above (see paragraph 31 above).
76. Lastly, the material in the case file shows that the courts were not faced with a particularly burdensome procedural activity on the part of either the applicant or the other party.
77. In the light of the above considerations, the Court does not discern any circumstances capable of exempting the domestic courts from the duty to observe the Hague Convention time-limit and finds that the overall length of the proceedings was not justified. The State therefore failed to deal with the case in the most expeditious manner, as required by the Convention in respect of this type of dispute.
78. The last point that must be addressed in the present case is the appointment as a single judge of K.R., who examined the applicant’s Hague Convention application in the first-instance court (see paragraph 25 above). This judge had already been involved in the family’s case, as she had ruled in respect of the children’s residence (see paragraphs 16, 18 and 19 above). In particular, on 5 August 2016 the judge in question held that the children’s habitual residence was in Poland (see paragraph 18 above).
79. While this is part of the examination of the procedural aspect of Article 8, the Court reiterates that Article 6 § 1 of the Convention requires a tribunal falling within its scope to be impartial (see Denisov v. Ukraine [GC], no. 76639/11, §§ 60-65, 25 September 2018). Impartiality normally denotes the absence of prejudice or bias and its existence or otherwise can be tested in various ways. According to the Court’s constant case-law, the existence of impartiality for the purposes of Article 6 § 1 must be determined according to a subjective test where regard must be had to the personal conviction and behaviour of a particular judge, that is, whether the judge held any personal prejudice or bias in a given case; and also according to an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality (see Micallef v. Malta [GC], no. 17056/06, § 93, ECHR 2009). Lastly in this context, according to the Court’s case-law, even where an adjudicatory body determining disputes over “civil rights and obligations” does not comply with Article 6 § 1 in some respect, no violation of the Convention can be found if the proceedings before that body are “subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article 6 § 1” (see Denisov, cited above, § 65).
80. The Court notes that in the present case, the determination of the children’s habitual residence was not the sole reason for which the applicant’s Hague Convention request was dismissed (see paragraph 32 above). Moreover, the Court cannot see that K.R.’s appointment rendered the applicant’s Hague Convention proceedings, as a whole, unfair, especially given the fact that a different bench of judges sitting as the appellate court upheld the findings of fact and law of the first-instance court (see paragraph 34 above). The Court also notes that it does not appear that the applicant has raised the issue of the alleged lack of impartiality of the judge in the domestic proceedings.
81. In conclusion, given the circumstances of the case seen as a whole, and notwithstanding the respondent States’ margin of appreciation in the matter, the Court considers that the State failed to comply with its positive obligations under Article 8 of the Convention, namely, its duty to ensure particularly expeditious proceedings.
82. There has accordingly been a violation of Article 8 of the Convention.
83. Lastly, the Court observes that, as the children have lived for many years with their mother in Poland, the present judgment should not be interpreted as suggesting that the respondent State should take steps to order their return to the United Kingdom (see, mutatis mutandis, G.N. v. Poland, cited above, § 72; K.J. v. Poland, cited above, § 76; and M.V. v. Poland, cited above, § 82).
ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION regarding THE APPLICANT’S CONTACT RIGHTs84. The applicant may also be understood as making a separate complaint that the domestic courts had failed to secure the effective exercise of his right of contact during the Hague Convention proceedings. That, in the applicant’s view, had led to his alienation from the children, in breach of Article 21 of the Hague Convention and Article 8 of the Convention. Another result of the prolonged absence of contact was that his children no longer spoke Hungarian or English.
85. The Government did not comment.
86. The general principles regarding a right for a parent to have measures taken with a view to having his or her contact with the child secured and regarding the corresponding obligation of the national authorities to take measures to facilitate contact by a non-custodial parent with children during childcare proceedings, are set out in paragraph 75 of the Court’s judgment in the case of G.N. v. Poland (cited above).
87. The Court notes that, in the circumstances of the present case, while the Hague Convention proceedings were pending, the applicant made three applications for contact arrangements (see paragraphs 35, 37 and 41 above). The first two applications (the first one, lodged in December 2016) failed on procedural grounds because the applicant did not file them, as he should have, in the main return proceedings under Article 21 of the Hague Convention. Instead he petitioned a family court under the general provisions of the Code of Civil Procedure (see paragraphs 36 and 38 above). It follows that the lack of contact arrangements in place in the period of seven months, during the Hague Convention proceedings, was not attributable to the authorities but to the applicant’s own procedural mistake.
88. The Court also notes that the applicant’s third application in respect of the temporary contact arrangements was lodged in July 2016, in the framework of his divorce proceedings that had in the meantime unfolded (see paragraphs 40 and 41 above). The divorce court ruled within two months, granting the applicant the right to contact his children (see paragraph 42 above). The court set out a detailed schedule of visits and communications. It also obliged K.Z. to facilitate the contact and not to disrupt the visits. The issue of contact arrangements was subsequently the subject of an appellate ruling, issued without any delay and in due respect to the applicant’s procedural rights (see paragraph 43 above). In view of the above, the Court is satisfied that, from the moment when the applicant correctly filed his legal action concerning his right to contact his children, this right was secured by the Polish court without delay and without any other shortcomings.
89. Accordingly, in view of all of the above, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
APPLICATION OF ARTICLE 41 OF THE CONVENTION90. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
Damage91. The applicant, acting through his professional lawyer, claimed 20,000 euros (EUR) in respect of non-pecuniary damage, as it was phrased, “for the violation of Article 1 Protocol No. 1 of the Convention and of Article 13 of the Convention”.
92. The Government contested the applicant’s claim, firstly, as not linked to the violation of Article 8 of the Convention, and secondly, as excessive.
93. The Court finds that the reference to Convention provisions that have nothing to do with the present case must have been a typing error on the part of the applicant’s lawyer. The Court accepts that the applicant must have suffered distress and emotional hardship as a result of the Polish courts’ failure to ensure expeditious proceedings regarding his Hague Convention request, which is not sufficiently compensated for by the finding of a violation of the Convention. Having regard to the sums awarded in comparable cases, and making an assessment on an equitable basis, the Court awards the applicant EUR 9,000 in respect of non-pecuniary damage.
Costs and expenses94. The applicant also claimed EUR 49,434 in respect of costs and expenses incurred in relation to both the domestic proceedings and the proceedings before this Court. To this end he submitted invoices issued on various dates in 2017 and 2018 by British family law solicitors and Polish lawyers who had represented the applicant in various proceedings related to the children having been taken from the United Kingdom. The applicant also submitted a receipt for the payment of court fees in 2016 and translation fees. He further explained that the fee for his legal representation in Strasbourg amounted to EUR 2,354, plus 20% of any award in respect of non-pecuniary damage. The applicant calculated the latter sum at EUR 4,000. He attached a contract that he had concluded with his lawyer.
95. The Government argued that only costs actually incurred in the preparation and defence of the applicant’s case before the Court should be taken into consideration.
96. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the Court must have regard to the fact that it has found a violation of Article 8 only in respect of the excessive duration of the Hague Convention proceedings. The Court would also note that most of the above-mentioned domestic proceedings are not relevant for the case at hand. In the light of these considerations, the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 5,000 covering costs under all heads.
97. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Declares the complaint under Article 8 of the Convention relating to the Hague Convention proceedings admissible and the remainder of the application inadmissible;Holds that there has been a violation of Article 8 of the Convention as concerns the Hague Convention proceedings;Holds(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 9,000 (nine thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 5,000 (five thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;
Dismisses the remainder of the applicant’s claim for just satisfaction.Done in English, and notified in writing on 17 March 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Liv Tigerstedt Erik Wennerström
Deputy Registrar President