FOURTH SECTION
DECISION
Application no. 14179/15
Gaël COSTE
against Poland
The European Court of Human Rights (Fourth Section), sitting on 13 October 2015 as a Chamber composed of:
Guido Raimondi, President,
Päivi Hirvelä,
Ledi Bianku,
Nona Tsotsoria,
Paul Mahoney,
Krzysztof Wojtyczek,
Faris Vehabović, judges,
and Françoise Elens-Passos, Section Registrar,
Having regard to the above application lodged on 16 March 2015,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Gaël Coste, is a French national who was born in 1973 and lives in Marseille, France. He is represented before the Court by Ms A. Lończyk-Colin, a lawyer practising in Ruda Śląska.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
A. Background
3. In October 2009 the applicant’s daughter, A.S.C., was born out of his informal relationship with A.S., a Polish national. The family lived together in Paris.
4. In 2011 the couple split up and A.S. and A.S.C. moved to Poland with the applicant’s consent.
5. Since then, the applicant has maintained his contact with his daughter through frequent phone calls, regular meetings in Poland and several meetings in France. During these visits, the child was always accompanied by her mother, who would not allow the child to make unaccompanied visits to Poland or to travel to France without her.
6. The child does not speak French. Her mother occasionally teaches her French and reads to her in this language. The applicant communicates with his child in basic Polish or through the child’s mother. He pays child support and tuition for the child’s private school.
B. Contact proceedings
7. On 13 March 2013 the applicant applied for contact with his daughter. He did not ask for an interim order to be issued to secure his contact rights during the proceedings. He wished to take his daughter to France every year in the month of July, for the All Saints’ holiday, and for the Christmas or Easter holidays in alternate years.
8. On 11 June 2013 the Płock District Court ordered a report from the Family Consultation Centre (Rodzinny Ośrodek Diagnostyczno-Konsultacyjny, “the RODK”) to establish what kind of bond existed between the applicant and his child, the quality of the direct communication between the applicant and the child, and whether the child’s travel to France without the mother and contact between the applicant and the child without the presence of the mother or an interpreter would be contrary to the child’s best interests.
9. On 31 July 2013 ‒ following interviews with both parents and the child, which took place in the presence of a French interpreter ‒ the RODK produced an expert report. It was found that the child had a strong bond with both parents and that both of them were considerate, emotionally balanced and loving. It was also concluded that the quality of the linguistic communication between the applicant and his daughter was good and sufficient for the applicant to understand the needs of his child and for their mutual communication and that it was in the child’s best interests that contact arrangements be made. It was also recommended that before the applicant travelled with his daughter to France, they should have several unaccompanied meetings in Poland and that the child’s mother should accompany the child on a trip abroad.
10. On 26 March 2014 the Płock District Court (Sąd Rejonowy) dismissed the applicant’s application. The domestic court heard both parents and a witness. The domestic court also relied on the RODK report which was considered to be full and thorough, although it led the domestic court to draw partly different conclusions. In particular, it was held that the quality of the independent communication between the applicant and his child was not sufficient for carrying out long-term unaccompanied visits to France. Even though the lack of adequate linguistic exchange might not have significantly impeded the applicant’s play-time with his child as tested by the RODK, the lack of a common language between a father and a four‑year-old constitutes a serious obstacle to their contact in the longer term. In particular, the child would not be able to inform the applicant about her feelings or possible health disorders, and she would therefore not feel secure in the new environment. In this respect, the domestic court considered the RODK report to be inconsistent because, on the one hand, the experts had found that the quality of the communication between the father and the daughter was sufficient whilst, on the other, they recommended a transitional period during which the child would be accompanied by her mother on trips to France and the father could meet her without any linguistic assistance in Poland. In view of these considerations and the child’s young age, the domestic court held that ensuring her feeling of security ‒ which would in turn guarantee her adequate development and the proper course of the meetings ‒ was more important than her independent contact with her father. The domestic court had no doubt that the applicant had a right to unaccompanied contact with his daughter and that he had adequate parenting skills for such contact. But the language barrier between him and his child was an obstacle. The district court upheld the recommendation of the RODK experts that the child should be prepared for future independent contact by means of unaccompanied meetings in Poland and visits to France in her mother’s company. Eliminating such a transitional period would deprive the child of the possibility of a gradual adaptation to such a new and important event as unaccompanied travel with her father to France. The domestic court decided not to rule on any contact arrangements during the transitional period because the applicant had not requested it in his application.
11. The applicant appealed on the merits, including the grounds that a family court was duty-bound to rule on contact arrangements when the parties were in disagreement. The applicant also applied for an interim order for the duration of the appellate proceedings by virtue of which he would be authorised to have his daughter’s passport and to spend the month of August 2014 and the first weekend of every month with the child without the mother’s presence.
12. On 17 July 2014 the Płock Regional Court (Sąd Okręgowy) issued an interim order authorising the applicant to visit his daughter between 1 and 7 August and 23 and 30 August 2014 in her home in Poland from 10 a.m. to 6 p.m. without the presence of any third parties, and to take his daughter out for no longer than three hours (with the mother having a right to one phone call during this time). A copy of this decision has not been submitted. It appears that the applicant did not lodge an interlocutory appeal.
13. The applicant met his daughter in compliance with the above interim decision. He spoke with her mainly in French.
14. The applicant later modified his application for contact, wishing to spend his time with the child in Poland, the first weekend of every month ‒ from 5 p.m. on Friday until 7 p.m on Sunday ‒ in the period up until June 2015, and from 10 p.m. on 23 December until 7 p.m on 2 January, with the right to take her to his home. In the later phase, he wished to have extended contact rights as set out in his 2013 application.
15. On 24 September 2014 the Płock Regional Court amended the first-instance decision by authorising the applicant to visit his child the first weekend of every month, on Friday between 5 p.m. and 7 p.m., on Saturday from 10 a.m. to 7 p.m. and on Sunday from 10 a.m. to 6 p.m., and every day from 9 a.m. to 7 p.m in the period from 1 to 21 July. The meetings were to take place at the child’s home without the presence of the mother or any third parties. The applicant was also authorised to take the child out for a maximum of four hours, with the mother being entitled to one phone call. Additionally in July, the applicant was authorised to take the child out for a maximum of six hours and, every third day, to take the child to his place of residence in Poland and to travel alone with the child within a radius of 50 km for a maximum of eight hours, with the mother being entitled to two phone calls.
In the domestic court’s view, such a schedule would deepen the bond between the father and the child and would help them improve their communication without the risk of the child feeling insecure. It was observed that the schedule was a temporary solution of indeterminate duration until the child reached a certain level of maturity and learned to speak French, which would be necessary in order for her to make unaccompanied visits to France.
C. Recent developments
16. The applicant regularly travels to Poland to exercise his contact right in line with the above schedule.
17. He has recently submitted to the Court, however, that since 3 October 2014 A.S. had been interfering with the course of his visits by remaining present in the room designated for the applicant’s visits and not letting him take the child out. Out of sixteen recent visits, the applicant had been allowed to take his daughter out only eight times, including twice after police intervention. The time out had often been shorter than four hours and A.S. had telephoned her daughter more frequently than was authorised by the family court.
18. On 16 June 2015 the applicant applied for A.S.’s custody to be restricted on the grounds that she had been hindering his contact with the child.
19. In the course of these proceedings, A.S. made the following submissions to the family court.
The applicant is not being impeded from having contact with his daughter in line with the court’s decision of 24 September 2014. In particular, a room with toys is at his disposal in A.S.’s house and his visits are undisturbed by the child’s mother. The applicant is in principle allowed to take his child out for four hours, with the mother telephoning only once. Out of twenty-seven recent meetings between the applicant and his daughter, the child did not go out with the applicant on only ten occasions. On these occasions, either the child was ill or the weather was bad or the child did not want to go out. To substantiate this, A.S. presented a medical certificate confirming that the child had bronchitis in April 2015. She also submitted that on 6 June 2015 she had called the police after the applicant had used physical force to carry his crying and struggling daughter outside. That day the police had told the applicant to leave.
A.S. also informed the family court that the applicant provoked disputes and threatened her with child abduction. Moreover, the applicant filmed A.S. during each visit, following her inside the house. The applicant’s visits were becoming more and more unpleasant for the child because he never brought books or toys to play with and was unable to entertain the child due to the language barrier. He sometimes gets angry with his daughter and makes her cry. He has also used firm grips to stop her from leaving the room. On one occasion he had left bruises on the girl’s arms. If the child does not want to go out with the applicant, the latter calls the police. On one occasion, he did so when the child was in bed with fever. The child associates his visits with violence and police intervention.
20. On 13 July 2015 the Płock District Court issued an interim decision ordering the visits to the child to be supervised by a court bailiff who was to report to the family court once a month. The aim behind this decision was to verify A.S.’s parenting attitude and to enable the applicant to exercise his contact right. It was emphasised that the decision had a temporary character and was susceptible to change in the event of new circumstances and if the best interests of the child so required.
COMPLAINT
21. The applicant complained, relying on Articles 6, 8 and 14 of the Convention and Articles 1 of Protocol no. 12 and 5 of Protocol no. 7 to the Convention, about the outcome of the contact proceedings which ended with the decision of 24 September 2014. In particular, he submitted that the domestic court’s refusal to grant him unaccompanied contact with his daughter in France and the limitation on his visits to Poland to the child’s home and the area in and around her home town constituted a disproportionate infringement of his right to respect for his private and family life. He also complained that that infringement was discriminatory because the impugned domestic court’s decision was based solely on the grounds that applicant could not speak Polish.
THE LAW
22. The applicant complained that the domestic court’s refusal to grant him unaccompanied contact with his daughter in France and the limitation on his visits to Poland to the child’s home and the area in and around her home town had infringed his right to respect for his private and family life and had been discriminatory.
23. In view of the nature of the allegations made, the Court considers it appropriate to examine the present application under Article 8 taken in conjunction with Article 14 and under Article 8 alone.
24. The relevant provisions read, insofar as relevant:
“Article 8
1. Everyone has the right to respect for his ... 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.”
“Article 14
The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as ... language .., association with a national minority, property, birth or other status.”
A. Violation of Article 8 of the Convention in conjunction with Artcle 14 of the Convention
25. Article 14 of the Convention complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see, among many other authorities, Van Raalte v. the Netherlands, judgment of 21 February 1997, Reports of Judgments and Decisions 1997-I, p. 184, § 33, and Camp and Bourimi v. the Netherlands, no. 28369/95, § 34, ECHR 2000-X).
26. The notion of “family life” under Article 8 of the Convention is not confined to marriage-based relationships and may encompass other de facto “family” ties where the parties are living together out of wedlock. A child born out of such a relationship is ipso jure part of that “family” unit from the moment, and by the very fact, of the birth (see Keegan v. Ireland, 26 May 1994, § 44, Series A no. 290; L. v. the Netherlands, no. 45582/99, § 35, ECHR 2004‑IV; and Znamenskaya v. Russia, no. 77785/01, § 26, 2 June 2005).
27. In the instant case, the applicant’s child was born when the applicant and his partner were living together as a couple in Paris. They continued living as a family for another two years or so before it was agreed that the mother and the daughter would move to Poland (see paragraphs 3 and 4 above). Accordingly, the Court considers that the domestic court’s decision on the applicant’s contact rights constitutes interference with his right to respect for his family life. The case therefore falls within the ambit of Article 8 of the Convention.
28. For the purposes of Article 14, different treatment is discriminatory if it “has no objective and reasonable justification”, that is to say, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised”. Moreover, the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see Karlheinz Schmidt v. Germany, judgment of 18 July 1994, Series A no. 291-B, pp. 32‑33, § 24; Camp and Bourimi, cited above, § 37; Hoffmann v. Austria, 23 June 1993, § 30, Series A no. 255 C; and Palau-Martinez v. France, no. 64927/01, § 31, ECHR 2003‑XII).
29. The Court must therefore first examine whether the applicant can claim to have received different treatment than if he were a non-custodial parent who had a common language with his child.
30. In the circumstances of the case, the impugned contact proceedings focused on assessing the extent to which the applicant could communicate with his daughter in view of his inability to speak Polish (other than a few basic words) and the child’s inability to speak French and on the practical consequences of such a linguistic impediment.
Firstly, the domestic court ordered the RODK experts to assess, among other things, the quality of the direct communication between the applicant and the child (see paragraphs 8 and 9 above). Secondly, the first-instance court was very much concerned with the linguistic contact between the applicant and his child and concluded that the quality of the independent communication between them was not sufficient for the purpose of carrying out long-term unaccompanied visits to France (see paragraph 10 above). And thirdly, the same court explicitly observed that the applicant’s strong bond with the child and the adequacy of his parenting skills would have convinced it to allow the contact sought had it not been for the language barrier between him and his child (see paragraph 10 above).
31. It follows that there has undeniably been a difference in treatment and that that difference was on the grounds of language.
32. What must now be determined is whether that different treatment was justified by a “legitimate aim” pursued and whether it was proportionate (see, among other authorities, Hoffmann, cited above, § 33).
33. The Court is of the opinion that the aim pursued in the instant case, namely protection of the child’s interests, is a legitimate one.
34. It remains to be determined whether or not there was a reasonably proportionate relationship between the means employed and the legitimate aim sought, the former being the refusal to authorise the child’s unaccompanied visits to France and instead, putting in place a schedule of semi-independent monthly and summer visits to Poland.
35. To this end, the following principles established by the Court in similar Article 8 cases must be reiterated. Consideration of what lies in the best interests of the child concerned must be a primary consideration in every case of this kind (see Yousef v. the Netherlands, no. 33711/96, § 73, ECHR 2002‑VIII and Krisztián Barnabás Tóth v. Hungary, no. 48494/06, § 32, 12 February 2013;); depending on their nature and seriousness, the child’s best interests may override those of the parents (see Sommerfeld v. Germany [GC], no. 31871/96, § 66, ECHR 2003‑VIII (extracts) and Görgülü v. Germany, no. 74969/01, § 43, 26 February 2004). The national authorities have the benefit of direct contact with all the persons concerned. Consequently, the Court’s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding contact issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their power of appreciation (see, inter alia, Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299‑A; Görgülü, cited above, § 41; and Sommerfeld, cited above, § 62). However, restrictions placed by the domestic authorities on parental rights of access call for a strict scrutiny as they entail the danger that the family relations between a young child and a parent would be effectively curtailed (see, inter alia, Elsholz v. Germany [GC], no. 25735/94, §§ 48 and 49, ECHR 2000‑VIII; Sommerfeld, cited above, §§ 62-63; and Görgülü, cited above, §§ 41‑42).
36. In the present case, the applicant seeks to have his daughter visit him in France without her mother three times per year (see paragraphs 7 and 14 above). He made a formal application to this effect in March 2013 when the child was three and a half years old (see paragraph 7 above). An expert report was obtained by the family court four and a half months later, in July 2013 (see paragraph 9 above). The applicant’s contact rights were determined, initially, by an interim order of 17 July 2014 (see paragraph 11 above) and ultimately by the decision of 24 September 2014 (see paragraph 15 above).
37. By virtue of the impugned decision of 24 September 2014, the applicant can exercise his contact right only in Poland. He can visit his daughter the first weekend of every month and during the first three weeks of July. These visits must take place at the child’s home with the exception of those lasting four, six or eight hours, when the applicant is authorised to take his daughter out, or take her to his place of residence in Poland or travel with her within a radius of 50 km. The domestic court explicitly banned the presence of the child’s mother or other people in the room in which the applicant’s visit was taking place and authorised the mother to make one or two phone calls during the child’s time away from home (see paragraph 15 above).
38. The applicant exercises his contact right in line with this schedule. Nothing in the case file indicates that such contact is hampered in terms of any objective obstacle on the applicant’s part, for instance related to his travel between France and Poland. The question of whether the child’s mother interferes with the visits, as has been recently claimed by the applicant, is currently under examination by the domestic court and is not the subject of this application. Since July 2015, execution of the applicant’s contact has been additionally ensured by a court-appointed bailiff.
39. The Court is therefore compelled to observe that the mutual enjoyment by the applicant and his daughter of each other’s company which constitutes a fundamental element of family life has in fact been secured by a judicial decision and is not curtailed in practice. Moreover, the applicant is not complaining that the contact granted is insufficient in terms of the frequency or duration of the visits scheduled by the domestic court. Instead, he is asking to be granted unaccompanied contact in France. In this connection, the Court notes that the right of a non-residential parent to have contact of a particular type and in a particular place or country is not, as such, guaranteed under Article 8 of the Convention. Lastly, it should not be forgotten that the applicant agreed to his young child’s leaving France and settling with her mother in a foreign country.
40. The Court finds that the reasoning of the impugned decision, whether read alone or alongside the previous domestic court decisions on contact, unequivocally confirms two points. Firstly, that the domestic court did not grant contact as sought by the applicant due to the concern that the child might lose her sense of security if she were to be made to spend time immediately with her father in France without the company of her mother. And secondly, that the schedule of progressively longer and more independent visits to Poland, which was put in place instead, was aimed at creating a transitional phase during which the child and the father could improve their linguistic communication and which would allow the child to get used to being on her own with her father.
It was stated that the schedule in question offered a temporary solution (see paragraph 15 above) and that the ultimate goal was to have the applicant exercise his right to unaccompanied contact with his daughter in France (see paragraphs 10 and 15 above).
41. The notion of a transitional phase which was employed by the domestic court was derived directly from the conclusions of the RODK expert report. The psychologists recommended that before the applicant took his daughter to France, the two of them should have a series of unaccompanied meetings in Poland and visits to France in the company of the child’s mother (see paragraph 9 above). That recommendation was made even though the experts considered that the quality of the linguistic exchange between the applicant and his daughter was sufficient for the applicant to understand his child’s needs and for their mutual communication.
42. The quality of linguistic communication between the applicant and his daughter was in fact the only element on which the opinion of the RODK experts and the domestic judges diverged. It is certainly not this Court’s role to resolve this issue.
43. The Court sympathises with the applicant, who is eager to enjoy family life with his six-year old daughter in his home country. The applicant’s right however, cannot override the best interests of his child. Consequently, the Court finds that, for the same reasons as relied on by the domestic court (see paragraphs 15 and 36 above), the ruling of 24 September 2014 was justified.
44. In those circumstances, the Court concludes that the relationship between the means employed and the legitimate aim pursued was reasonably proportionate. Accordingly, the complaint that there has been a violation of Article 8 of the Convention taken in conjunction with Article 14 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
B. Violation of Article 8 of the Convention taken alone
45. In view of the conclusion reached in the preceding paragraph, the Court does not consider it necessary to rule on the allegation of a violation of Article 8 taken alone, the arguments advanced in this respect having already been examined in respect of Article 8 taken in conjunction with Article 14.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 5 November 2015.
Françoise Elens-PassosGuido Raimondi
RegistrarPresident
Full & Egal Universal Law Academy