Published on 29 March 2021
FIRST SECTION
Application no. 12119/14
L.D.
against Poland
lodged on 3 February 2014
communicated on 9 March 2021
STATEMENT OF FACTS
The applicant, Ms L.D., is a Polish national, who was born in 1971 and lives in Sieradz. She is represented before the Court by Ms M. Gąsiorowska, a lawyer practising in Warsaw.The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is the mother of B., a boy born in 2006, outside of wedlock. The applicant was in a relationship with B.’s father (P.) until 23 January 2011, when the couple broke up. The applicant claims that P. had been abusing alcohol for years and that he had sometimes been aggressive towards her and B. After one of their arguments, P. had allegedly forced the applicant to write a statement, in which she admitted that she had been a “bad mother” and that she would kill herself and B. The applicant claims that P. threatened to use the statement against her, should she disobey him.
After P. had moved out of their apartment, he requested the Sieradz District Court (Sąd Rejonowy) to make contact arrangements for him, so that he could regularly spend time with B.
On an unspecified date, the District Court granted his request and P. was allowed, in particular, to spend time with B. on certain weekends.
On Friday, 4 March 2011 P. collected B. from kindergarten and spent the weekend with him, in accordance with the District Court’s ruling. Apparently on the same day P. also requested the Sieradz District Court to issue an injunction (zabezpieczenie) and place B. under his exclusive custody. He claimed that he had noticed a bruise on B.’s buttocks and B. had allegedly stated that he had been hit by the applicant. P. was supposed to return B. to the applicant’s custody by the evening of 6 March 2011.
On 6 March 2011 P. called the applicant and informed her that he would not return B. The applicant travelled to P.’s apartment and called the police to the scene. The intervention did not result in B.’s handover to the applicant, since both parents enjoyed full parental custody. P. did not allow the applicant to see or talk to B. and had allegedly shown the police officers the statement, which the applicant had written years before, in which she threatened suicide and murder.
On the following day the applicant called P. and was allowed to speak to her son. She claims that the conversation was recorded by P., who was instructing B. what to say. At one point B. had allegedly said that he would not go to kindergarten, since P. would not be able to collect him.
On 8 March 2011 the applicant asked the Sieradz District Court for the return of her son.
On 9 March 2011 the applicant and her mother travelled to P.’s house in order to see B. P. refused and the police was called again to the scene. The applicant was able to talk to B. for two minutes, however the police refused to intervene since B.’s domicile was not established by a court order.
On 11 March 2011 P.’s request for an injunction was dismissed by the Sieradz District Court. The court held that B.’s best interests had not been jeopardised while being under the applicant’s custody. It also noted that the request had been intended to essentially legalise P.’s unilateral actions (factual severance of B.’s ties with the applicant and his placement under de facto exclusive custody of P.).
On the same day the applicant and B.’s godmother went to P.’s house and were allowed to enter and meet with B. They were accompanied by all members of P.’s family. The applicant claims that B. had behaved oddly, constantly looking to the paternal family for approval of all his actions. After fifteen minutes B. had told the applicant that she needed to leave.
On 15 March 2011 the applicant lodged a request to limit P.’s parental authority (ograniczenie władzy rodzicielskiej) and to determine that the child’s domicile would be with the applicant. She also asked for an injunction.
On 25 March 2011 the Sieradz District Court dismissed her request for an injunction and, acting proprio motu, issued a different injunction and ordered a court guardian (kurator sądowy) to supervise the father’s custody over B. The court held that B.’s best interests had not been jeopardised, while under the custody of his father. Moreover, it determined that both parents enjoyed full parental custody and the child could live with either one of them. It held that his permanent domicile would be decided in due course of the proceedings.
On 15 April 2011 the applicant’s lawyer requested the Sieradz District Court to issue an injunction and determine her contact arrangements with B. She requested that the applicant be authorised to spend time with B. on the first and third weekend of each month, every Thursday, Good Thursday, Good Friday, Easter Monday and 2 May 2011. Her contacts would take place without the presence of P. The lawyer argued that since 16 March 2011 the applicant had had no contact with B.
On 26 April 2011 her request was dismissed by the Sieradz District Court. The court held that the proceedings concerned parental authority and thus the request for making contact arrangements fell outside their scope. The court suggested that the applicant could seek contact arrangements in a separate set of proceedings.
On 27 April 2011 the Sieradz Regional Court (Sąd Okręgowy) dismissed P.’s interlocutory appeal (zażalenie) against the ruling of 11 March 2011. It held that none of the evidence presented by P. substantiated his allegations of a threat to B.’s well-being while under the care of the applicant.
On 5 May 2011 the applicant’s lawyer requested the Sieradz District Court to make contact arrangements for the applicant and B.’s grandmother. The contacts were to take place on the first and third weekend of each month, every Thursday between 1 p.m. and 7 p.m., every Tuesday between 3 p.m. and 7 p.m. and during summer holidays for two weeks in July and two weeks in August. She also requested the court to issue an injunction and secure her right to contacts with B. On 6 May 2011 the Sieradz District Court determined that – due to B.’s factual domicile – it lacked jurisdiction ratione loci and transmitted the case to the Zduńska Wola District Court.
On 30 May 2011 the applicant personally requested the Sieradz District Court to expedite the proceedings. She stated that she missed her son and wanted to see him.
On the same day her lawyer requested the Sieradz District Court to alter its injunction of 25 March 2011 and determine that B.’s temporary domicile would be with the applicant. The lawyer indicated that P. had uttered obscenities at the applicant in B.’s presence and that B. had witnessed his father heavily intoxicated at several parties at his house.
On 6 June 2011 the Zduńska Wola District Court dismissed the applicant’s request for injunction of 5 May 2011. The statement of reasons did not explain why the request had been dismissed. The court merely stated that another set of proceedings was pending before the Sieradz District Court. On the following day the Zduńska Wola District Court requested the Sieradz Regional Court to reassign the case to the Sieradz District Court, which would be better suited to rule on it, since other proceedings concerning the applicant and P. were already pending before it.
On 14 June 2011 the applicant’s lawyer appealed against the dismissal of the request for injunction.
On 15 June 2011 the Regional Court reassigned the case from Zduńska Wola District Court to the Sieradz District Court.
On 18 July 2011 the Sieradz Regional Court quashed the dismissal of 6 June 2011 and remitted the case for re-examination. It held that the ruling was so poorly reasoned that it made it difficult for the appellate court to examine the logic behind the first-instance court’s decision.
On 19 September 2011 the applicant requested the Sieradz District Court to expedite her request for injunction. She argued that since the initial decision had been quashed, nothing had happened in her case. She also indicated that under the Code of Civil Procedure (kodeks postępowania cywilnego – the “CCP”), a request for injunction should be decided within seven days from the date on which it had been lodged.
On 11 October 2011 the Family Consultation Centre (Rodzinny Ośrodek Diagnostyczno-Konsultacyjny ‑ “the RODK”) prepared an expert opinion concerning B.’s psychological state as well as the applicant’s and P.’s parental competences. The RODK held that B. had been emotionally unstable and heavily dependent on his paternal family. It also stated that P. had been egocentric and respected the needs of others only in so far as they were aligned with his own. He was also diagnosed as potentially addicted to alcohol. The experts also negatively assessed his parental competences and referred to the fact that he had been convicted of driving under the influence of alcohol, but still continued drinking. The RODK concluded that B. should be under the applicant’s custody, since she was better suited to take care of the boy’s needs. The opinion gave examples on how the applicant tried to adapt to B.’s state of development and how she was able to stimulate him, despite P.’s disturbing actions.
On 14 October 2011 the applicant’s lawyer modified her request of 5 May 2011, due to the change of circumstances caused by the significant lapse of time. Apart from requesting contact arrangements for specific days, she also requested that the applicant be allowed to spend the entire Christmas holiday period with B., as well as two weeks of winter holidays. She argued that as the applicant had been unable to spend time alone with B. for such a long period, she was entitled to spend some more time with him during the winter.
On 21 October 2011 the Sieradz District Court issued an injunction and determined the applicant’s and her mother’s contact arrangements with B. The court held that B. should spend time with the applicant on the first and third weekend of each month, every Wednesday between 2 p.m. and 8 p.m., at Christmastime from 23 to 25 December 2011 and on New Year’s Eve between 10 a.m. and 8 p.m.
On 7 November 2011 the Sieradz District Court delivered a ruling (postanowienie) in which it established the applicant’s and her mother’s contact arrangements with B. On 22 February 2012 the Sieradz Regional Court dismissed the father’s appeal (apelacja).
On an unspecified date the applicant requested the Sieradz District Court to enforce the final ruling of 7 November 2011. On 15 February 2012 the Sieradz District Court determined that it lacked jurisdiction ratione loci and transmitted the case to the Zduńska Wola District Court. The applicant’s interlocutory appeal against that ruling was dismissed on 16 April 2012.
On 23 February 2012 the Sieradz District Court delivered a ruling in which it authorised P. to exercise parental authority over B. and limited the applicant’s parental authority to deciding on vital matters concerning their son, such as choice of school and provision of medical treatment. It also ordered a court guardian to supervise both parents and ordered them to undergo therapy enhancing their parental competences. The court held that it could not agree with the RODK’s opinion. It determined that B. felt safe in his father’s house and any harmful behaviour would cease after P. underwent the therapy, as ordered by the court. It also stated that, contrary to psychiatric assessment, P. was rather unlikely to be addicted to alcohol.
On 7 March 2012 the applicant informed the guardian that P. had violated the court’s ruling of 21 October 2011. During one of her contacts with B., he had allegedly told her that he had been asked by his father to “stage” a scene, where he would object to leaving the kindergarten with the applicant. P. was hidden inside his car, parked outside the kindergarten and wanted to record the incident and use it as a proof against the applicant. She also referred to other situations where B. would apologise to his father that he left with the applicant or when P. forcibly took B. away from her.
On 6 April 2012 the applicant requested the President of the Sieradz Regional Court to assist her in the enforcement of her contacts with B. and to expedite the proceedings in her case. On 8 May 2012 the President replied to the applicant’s request and explained that matters of parental custody required utmost diligence, but she had not determined that the length of proceedings had been excessive.
On 12 April 2012 the applicant’s lawyer appealed against the ruling of 23 February 2012. She argued, in particular, that the District Court had shown blatant disregard for the opinion of the experts from the RODK, which constituted a flagrant breach of the CCP.
On 23 May 2012 the Sieradz Regional Court granted the applicant’s appeal and altered the ruling of the Sieradz District Court of 23 February 2012. It granted the applicant full custody over B. and limited P.’s custody to specific matters. The Regional Court also ordered the court guardian to supervise the applicant’s custody over B. The court held that the District Court had shown blatant disregard for expert opinion. It also held that the District Court contradicted itself as it legalised P.’s behaviour, which it had previously determined to be illegal. The Regional Court criticised the fact that the father had unilaterally decided to keep B. on 4 March 2011, despite the applicant’s objection. The Regional Court ordered P. to hand B. over to the applicant.
The ruling became final immediately and on 24 May 2012 the Sieradz Regional Court granted it an enforcement clause (klauzula wykonalności).
On 30 May 2012 the applicant requested the court to formally order the surrender of B. She claimed that P. had refused to hand B. over to her and had told her that he wouldn’t do so “even if ten police cars were to arrive at his house”.
On 23 July 2012 the Zduńska Wola District Court ordered a court guardian to forcibly remove B. from his father’s custody and hand him over to the applicant. Despite several attempts and police assistance, the guardian was unable to enforce the order.
On 2 August 2012 the applicant again requested the President of the Sieradz Regional Court to intervene in her case, since the final ruling of 23 May 2012 was not respected by P. On 20 August 2012 the President declared the applicant’s complaint as unfounded. She explained that two guardians attempted to enforce the ruling, but were unable to do so.
On 5 September 2012 the Commissioner for the Rights of the Child (Rzecznik Praw Dziecka – the “RPD”) intervened in the proceedings and requested the Zduńska Wola District Court to stay the enforcement of the Sieradz Regional Court’s ruling of 23 May 2012. The RPD explained that he had been contacted by journalists from TVN – a television station. They showed him a video recording of an unsuccessful attempt to enforce the court’s ruling of 23 May 2012. The RPD concluded that the actions of the guardians, psychologists and police officers could have been traumatic for B. He also indicated that following a long period of alienation from one parent, the handover should be handled more delicately.
On 18 September 2012 the Zduńska Wola District Court granted the RPD’s request for intervention and stayed the enforcement of the ruling of 23 May 2012 until both the applicant and P. completed a training on parental and conflict-solving competences. No time-limit was set for the parties.
The applicant appealed against that ruling. She argued that P. had shown blatant disregard for judicial authority and the whole situation could have been avoided, had he willingly complied with a final and enforceable court order. She also argued that she had been alienated from her son and the continued lapse of time would not benefit B.’s well-being. The applicant indicated that there had been no reason for her to undergo the training, since she was a professional educationalist and graduate of several professional courses on dealing with minor children.
On 27 November 2012 the Zduńska Wola District Court, acting proprio motu, issued an injunction concerning the applicant’s contacts with B. It authorised the applicant to meet with B. on the first and third Sunday of each month between 12 p.m. and 2 p.m. and the second and fourth Saturday of each month between 12 p.m. and 2 p.m. It also ordered a guardian to supervise each meeting.
On 12 December 2012 P.’s lawyer appealed against the injunction. She requested that the contacts take place in P.’s house under his and the guardian’s supervision.
On 20 December 2012 the Sieradz Regional Court quashed the ruling of 18 September 2012 concerning the stay of B.’s surrender and remitted the case for re-examination. It held that the District Court had failed to indicate the time-limit in which the parties should undergo the ordered training.
On 11 March 2013 the Sieradz Regional Court partially granted P.’s interlocutory appeal of 12 December 2012. It ordered that the applicant’s contacts with B. take place in P.’s house, without his presence but under the supervision of a guardian.
On 23 May 2013 the applicant lodged a complaint regarding the delays in the proceedings before the Sieradz Regional Court with the Minister of Justice (Minister Sprawiedliwości). On 10 June 2013 the President of the Sieradz Regional Court replied to the applicant, finding her allegations unjustified.
On 13 June 2013 the Zduńska Wola District Court, acting proprio motu, issued an injunction and determined that B.’s temporary domicile would be with his father. The court held that such a solution would be the least harmful for B. On 19 August 2013 the Sieradz Regional Court dismissed the applicant’s appeal against that ruling.
On 12 September 2013 the applicant made a new request for contact arrangements in the form of an injunction. She argued that despite a court order, P. and his family were present during her contacts with B.
On 26 September 2013 the Sieradz District Court made contact arrangements pursuant to the applicant’s request. It held that initial meetings would be supervised by the court guardian and twice a month take place in P.’s home and twice a month in a different location, whereas after 1 December 2013 the applicant would be entitled to spend time with B. alone, without the guardian. Both the applicant and P. appealed against that ruling. On 25 November 2013 the Sieradz Regional Court quashed the decision. It held that the injunction could be traumatic for B. and cause him irreparable harm.
On 9 January 2014 the applicant asked the guardian about the dates of her contacts with B. On 23 January 2014 the guardian responded that no such dates could be determined, since the case files were still at the Regional Court.
On 2 December 2014 the Zduńska Wola District Court partially changed the ruling of the Sieradz District Court of 23 May 2012 and granted P. parental custody over B. It also limited it by imposing the supervision of a guardian. It also made contact arrangements for the applicant.
On 21 January 2015 the applicant appealed against that ruling. On 6 May 2015 the Sieradz Regional Court changed the ruling insofar as it concerned the applicant’s contact arrangements with B. and dismissed the remainder of her appeal. The court held that after having spent four years under P.’s factual custody, it would be against B.’s best interest to return him to the applicant.
On 3 July 2015 the applicant was diagnosed with depression associated with the traumatic experience of being deprived of contacts with her son. The psychiatrist determined that the applicant had shown typical symptoms for victims of psychological violence. She concluded that the applicant would be unable to have contacts with B. in P.’s house, due to threat of ill‑treatment.
On 29 December 2016 the Zduńska Wola District Court reinstated the father’s full parental authority and lifted the guardian’s supervision.
On 28 March 2019 the Zduńska Wola District Court revoked the applicant’s parental authority over B.Relevant domestic law and practice
The relevant domestic law and practice concerning enforcement of a parent’s visiting rights is set out in the Court’s judgments in the cases of Stasik v. Poland, no. 21823/12, §§ 60 – 66, 6 October 2015 and Wdowiak v. Poland, no. 28768/12, §§ 48 – 50, 7 February 2017.
COMPLAINT
The applicant complains under Article 8 of the Convention that the domestic authorities were unable to effectively enforce lawful decisions in her favour and that their procedural delays resulted in a violation of her right to respect for family life.
QUESTION TO THE PARTIES
Has there been a violation of the applicant’s right to respect for her family life, contrary to Article 8 of the Convention? In particular, did the domestic authorities comply with their duty to exercise exceptional diligence in view of the risk that the passage of time may result in a de facto determination of the matter (see Süß v. Germany, no. 40324/98, § 100, 10 November 2005, P.K. v. Poland, no. 43123/10, §§ 80 – 86, 10 June 2014)?
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