Communicated on 17 September 2015
FOURTH SECTION
Application no. 13603/13
Jarosław JĄCZEK
against Poland
lodged on 31 January 2013
STATEMENT OF FACTS
The applicant, Mr Jarosław Jączek, is a Polish national, who was born in 1965 and lives in Szczecin.
He is represented before the Court by Mr D. Babski, a lawyer practising in Szczecin.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is a father of a girl E.J. born in 2007 of an informal relationship with R.G. which lasted from 2005 to January 2008 when the applicant left their common residence.
The applicant initially recognised the child as his own. After his separation with the mother he first tried to withdraw his paternity declaration and then, formally challenged his paternity before the courts. That application was dismissed on an unspecified date.
It appears that initially the applicant did not seek to see the child and did not contribute financially to her upbringing. On 23 October 2009 the Szczecin Regional Court ordered the applicant to pay child support.
The proceedings described below were subsequently instituted.
B. Custody proceedings instituted before the domestic courts
On 10 November 2010 the mother of the child filed an application to deprive the applicant of custody rights. On 14 March 2011 the applicant filed a motion to deprive the mother of custody rights or at least to limit her parental authority. The proceedings were joined. On 13 January 2012 the Szczecin District Court decided to grant full custody rights over the daughter to the mother by fixing the child’s residence with her and to limit the custody of the father to co-deciding on issues of importance.
On 25 October 2012 the Szczecin Regional Court dismissed the applicant’s appeal. The courts relied on the report of 1 August 2011 drafted by the Family Diagnostic Centre which concluded that the daughter’s bond with the mother was very strong as she had been taking permanent and good care of the child. The child did not have a bond with the applicant because of his limited involvement in her life and his focus on the conflict with the child’s mother. In view of the above, the young age and the sex of the child, it was held that the mother gave the best guarantee of providing good care and of acting in the child’s best interest. Granting both parents shared custody was considered practically impossible in view of the serious conflict between them.
C. Access arrangements
On 20 November 2009 the applicant applied to have access arrangements decided by the court. On 19 May 2010 the Szczecin District Court refused to issue an interim order to this effect. The applicant lodged an appeal.
On 2 August 2010 the Szczecin Regional Court issued an interim order, determining the planning of the applicant’s contacts with the child as follows: he was to see his daughter every second and fourth Saturday of each month from 12 to 3 p.m. in the presence of the mother. It was noted that the mother was under duty to facilitate the visits.
On 29 September 2010 the applicant made a new request to issue an interim order on contacts with his daughter, requesting an amendment of the previous decision. He requested in particular to have more visits without the mother’s presence. The Szczecin District Court dismissed the motion, finding that the applicant had a valid interim order issued in his favour and there was no need to change it. On 17 December 2010 the Szczecin Regional Court dismissed the applicant’s appeal.
On 11 March 2011 the Szczecin District Court decided to fix the planning of the applicant’s visits to every second and fourth Saturday of the month from 3 to 6 p.m. at the child’s home and in the presence of the mother and the court’s officer paid by the applicant. On 17 November 2011 the Szczecin Regional Court quashed that decision following the applicant’s appeal and sent the case for fresh examination by the district court.
On 5 March 2012 the authorities changed the 2010 planning of visits by allowing the applicant to see his daughter every second and fourth Sunday of the month from 12 to 4 p.m. outside of the child’s home and in the absence of third persons. R.G. was to prepare the daughter for the father’s visit and let her go with him at the given dates. The applicant was to drive E.J. back home after the end of the visit. The first two visits were to be held in the presence of the mother and the court’s officer; R.G. was to drive the daughter to the applicant’s house and facilitate the visits.
On 5 July 2013 the Szczecin-Prawobrzeże i Zachód District Court quashed the decision of 5 March 2012 and discontinued the proceedings initiated by appeals against this decision by both the applicant and R.G. The court appointed two psychiatric experts to evaluate E.J.’s anxieties and fears. Additionally a psychologist and a pedagogue were to be called to give their opinion to replace the report drafted by the Family Diagnostic Centre. On 5 September 2013 the Szczecin District Court rejected the applicant’s appeal, holding that he had no right to use this remedy since this was not a final decision in the proceedings.
Upon a motion lodged by R.G. aiming at a total ban of contacts between the applicant and his daughter, the court issued an interim order and decided to limit them to postal or internet communication.
When issuing this interim order the court relied on three private opinions, two issued by psychologists and one by a psychiatrist. Pursuant to one of them, of 26 October 2012 drafted by M.W., the contacts of E.J. with her biological father were destructive for her. She had developed neurotic reactions to him. The psychologist had examined E.J., observed her behaviour and made tests which had led her to find that E.J. was developing an obsessive-compulsive disorder as a result of her inability to deal with the stress related to her father. On the other hand, the psychiatrist recognised emotional disorder with anxieties. In March 2013 the second psychiatrist who had examined the applicant’s daughter had concluded that for her stable development and healthy growth no contact with her father was recommended.
The court had regard to the fact that the opinions were drafted for private purpose and underlined the need to verify their accuracy. The new psychological and psychiatric tests to be carried out by court appointed experts had been scheduled for September 2013.
However, there is no information available whether the tests took place and if so what the results were.
The court further noted that in November 2012 R.G. informed the applicant about her lack of consent for his seeing the daughter and since then the visits prescribed by the court’s order had not taken place.
The court established that until August 2013 the police intervened 38 times for the difficulties in enforcement of the visits.
On 13 December 2013 the Szczecin Regional Court partly dismissed and partly rejected the appeal lodged by the applicant against the impugned decision. The court noted his uncooperative attitude towards the courts and his absence for the scheduled psychiatric examination which was to be held on 8 November 2013.
The court emphasized the temporary character of this decision and the possibility to amend it in line with changing circumstances of the case.
On 5 September 2014 the Szczecin District Court dismissed the applicant’s request to change the interim order of 6 September 2013. On 26 November 2014 the Szczecin Regional Court dismissed the appeal.
On 13 May 2015 the Szczecin District Court issued a decision on the merits of the applicant’s request to have the access rights determined. The District Prosecutor as well as the Children’ Ombudsman were present at the hearing. The court decided to limit the access of the applicant to his daughter to traditional letters and emails. R.G. was obliged to read the letters to her daughter and inform the applicant about all the changes of address. The court relied on the reports from the sessions with psychologists and psychiatrists held on 14 October 2013 and 18 July 2014, respectively.
D. Enforcement of visits
On 31 December 2010 the applicant instituted proceedings to enforce his access rights as in his view the mother had failed to comply with the court’s order of 2 August 2010. On 7 March 2012 the Szczecin District Court dismissed his motion, stating that the visits were in fact taking place and the mother did not hinder them. On 19 March 2012 the applicant instituted a new of enforcement proceedings as in his view, the mother failed to comply with the court’s order of 5 March 2012.
On 27 August 2012 the Szczecin District Court dismissed this application; on 21 March 2013 the Szczecin Regional Court dismissed his appeal because it established that the applicant had not respected the planning fixed by the binding 2010 decision and he had not come even once to see his daughter at the dates determined in that decision. Instead, he had kept coming on dates scheduled by the decisions which were not binding. He had also arrived to see his daughter accompanied by third persons and often called the police; he had recorded the visits, to which the mother objected and insisted that he came alone.
On 11 February 2013 the applicant requested the court to order R.G. to pay a fine for failure to comply with her duty to facilitate the visits as per the decisions of 2 August 2010 and of 5 March 2012. The applicant provided the dates of the meetings which had not taken place allegedly because of R.G.’s fault. On 15 January 2014 the Szczecin-Prawobrzeże District Court dismissed his motion holding that the decisions issued in 2010 had been modified and, hence, the decisions the applicant relied on could not be executed as not being in force any. The court reminded the applicant that the binding decision was the one issued by the Szczecin-Prawobrzeże District Court on 6 September 2013.
On 15 May 2014 the Szczecin Regional Court dismissed the applicant’s appeal.
E. Proceedings under the 2004 Length of the Proceedings Act
On 2 April 2013 the applicant lodged a complaint with the Szczecin Regional Court about the excessive length of the proceedings concerning access arrangements with E.J. On 16 May 2013 the Szczecin Regional Court dismissed the applicant’s complaint.
The court found that the applicant had a vexatious approach towards the court and largely contributed to the length of the proceedings.
The applicant did not complain about the length of proceedings later on.
COMPLAINTS
The applicant complains under Article 8 of the Convention that he could not enjoy his access rights and that ultimately his contacts with his daughter were limited to traditional letters and emails. As the child cannot read or write yet, it is in fact the mother who replies to his letters which means that he is completely deprived of contacts with his daughter.
He also complains about the length of proceedings instituted in respect of access arrangements in November 2009 which are still pending.
The applicant finally complains under Article 13 of the Convention that he has no effective remedy to enforce his parental rights.
QUESTIONS TO THE PARTIES
1. Did the State fulfil it positive obligations as regards effective respect for the applicant’s family life within the meaning of Article 8 of the Convention ?
2. Is the length of the proceedings in the present case, in which the applicant sought to have access rights to his daughter determined, in breach of the “reasonable time” requirement of Article 6 of the Convention ?
Full & Egal Universal Law Academy