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 proceeded with the assessment of the said risks in view of what appeared to be a rather arbitrary refusal of the child’s mother to return with the child. Indeed, nothing in the circumstances unveiled before the domestic courts had objectively ruled out the possibility of the mother’s return together with the child. It had not been implied that the applicant’s wife did not have access to UK territory, or that she would have faced criminal sanctions upon her return. Nothing indicated that the applicant might actively prevent her from seeing her child in the United Kingdom or might deprive her of parental rights or custody.
Secondly, the harm referred to in Article 13 (b) of the Hague Convention could not arise solely from separation from the parent who was responsible for the wrongful removal or retention. That separation, however difficult for the child, would not automatically meet the grave risk test. However, the domestic courts had held that the child’s separation from the mother would have negative irreversible consequences, since the latter was her primary caregiver, and the child’s contact with her father had been rare.
Thirdly, equally misguided was the Polish courts’ holding that the child’s return with the mother would not have a positive impact on the child’s development, because the mother’s departure from Poland would be against her will. The domestic courts had clearly gone beyond the elements which ought to have been assessed under Article 13 (b) of the Hague Convention, while ignoring the conclusions of the experts, namely that the child, who was apparently adaptable, was in good physical and psychological health, was emotionally attached to both parents, and perceived both countries as on an equal footing. Furthermore, as the issues of custody and access were not to be intertwined in the Hague Convention proceedings, it was erroneous for the family court to assume that if returned to the United Kingdom the child would be placed in the applicant’s custody or care.
Lastly, despite the recognised urgent nature of the Hague Convention proceedings, one year had elapsed between the request for return and the final decision, a period for which no explanation had been provided by the Government.
In sum, notwithstanding its margin of appreciation in the matter, the State had failed to comply with its positive obligations. However, as the child had lived with her mother in Poland for over three and a half years, there was no basis for the instant judgment to be interpreted as obliging the respondent State to take steps to order the child’s return to the United Kingdom.
Conclusion: violation (unanimously).
Article 41: EUR 9,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.
(See also the Factsheet on International Child Abductions)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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