Communicated on 9 February 2017
FOURTH SECTION
Application no. 5313/12
Barbara Elzbieta LESZNIEWSKA
against Poland
lodged on 9 January 2012
STATEMENT OF FACTS
The applicant, Ms Barbara Elżbieta Leszniewska, is a Polish national who was born in 1978 and lives in Borkowo.
A. Background to the case
In 2005 the applicant and K.J. got married. On 26 May 2006 their only child J.J. was born. Since July 2007 the applicant and her husband have not lived together.
B. Divorce
On 12 May 2010 the Gdańsk Regional Court dissolved the applicant’s marriage (case no. II C 353/08). It awarded parental rights to the applicant, limited the father in the exercise of his rights, and ordered that the child’s permanent residence be with his mother. The father was allowed to participate in decisions about the child’s education and health. The applicant’s parental responsibility was limited by a guardian being appointed for her, and by obliging her to attend therapy in order to accept the father’s involvement in the child’s life and relax her control over the child. Both parents were obliged to attend the child’s therapy. The father was allowed to visit the child twice a week on Mondays and Wednesdays from 10 a.m. to 12 p.m., in the presence of a guardian.
On 30 September 2010 the Gdańsk Court of Appeal upheld that judgment.
C. The applicant’s loss of her parental responsibility, and changing the child’s place of residence
On 2 August 2010 K.J. lodged an application under Article 109 of the Family and Custody Code for temporary placement of J.J. with a foster family or with him, as he believed that the child’s welfare was threatened. He submitted that he had not had any contact with the child for two years, as the applicant had kept him away from him. He also submitted that the applicant had not attended the therapy ordered by the Regional Court (see under B. above).
On 7 December 2010 K.J. amended his application. He requested that the applicant be stripped of her parental responsibility and that J.J. reside with him.
On 22 March 2011, in case no. IV R Nsm 537/10, the Gdańsk Południe District Court issued an interim order (zabezpieczenie roszczenia). It amended the divorce decree and ordered that J.J. should reside with his father until the end of the proceedings concerning parental responsibility. The court also obliged the applicant to surrender the child to K.J. (wydanie dziecka). The court referred to the experts’ reports obtained in the divorce proceedings. According to an opinion issued by a family consultation centre (Rodzinny Ośrodek Diagnostyczno Konsultacyjny, “RODK”) in Elbląg on 1 September 2008, there was a good relationship between K.J. and his son. In an opinion of 7 August 2009 prepared by an RODK in Chojnice, it was found that the father could take care of the child without assistance from the applicant. The court considered that the father had had his last real contact with J.J. in the first half of 2008. During the last year he had met his son on several occasions, every time in the presence of the guardian, but the child had been very afraid of K.J. and had screamed all the time. The court also found that the child had two names: one used by the applicant (P.) and another used by K.J. (J.). The court stated that the child had been deprived of his father’s presence in his life, his authority, and the opportunity to know his father and be known by him. The court concluded that the applicant had in fact abused her parental responsibility. Furthermore, the court held that the loss of his father’s presence, as described above, would be more harmful to J.J. than him adapting to his father having parental responsibility for him. The court also highlighted that the breakdown of the relationship between J.J. and his father had resulted from the applicant’s behaviour.
On 6 April 2011 K.J. lodged an application for enforcement of the order of 22 March 2011.
On 9 May 2011 the Gdańsk Południe District Court obliged the applicant to surrender J.J. to K.J., pursuant to its order of 22 March 2011. That decision was upheld by the Gdansk Regional Court on 23 September 2011 (case no. II Ca 297/11).
On 26 May 2011 the Gdańsk Południe District Court refused to stay the enforcement of the order of 22 March 2011.
On 5 July 2011 at 7 a.m. J.J. was taken away by K.J., who came to the applicant’s house together with police officers and guardians.
On 19 July 2011 the Gdańsk Regional Court dismissed an interlocutory appeal by the applicant against the order of 22 March 2011. The court relied on the Chojnice RODK’s opinion of 7 August 2009, in which the experts stated that the relationship between the applicant and J.J. was abnormal and codependent, and that the child needed contact with his father. The court found that the applicant’s behaviour had destroyed the relationship between the father and the child. The court also noted that on 11 July 2011 a local assessment had been carried out at the home of K.J. by a guardian, with a view to establishing the child’s situation. The report confirmed that the child’s living conditions with his father were good. The court also found that, owing to the child’s moving to his father’s home, his situation had stabilised, as he was no longer afraid of him.
On 10 August 2011, at a hearing held in camera, the Gdańsk Południe District Court dismissed an application by the applicant to vary the order of 22 March 2011.
On an unspecified date the Gdańsk Regional Court quashed the decision of 10 August 2011 and remitted the case to the lower court for procedural reasons.
On 9 December 2011 the applicant lodged an application to vary the order of 22 March 2011. That application was dismissed by the court, as no new circumstances had arisen since the last decision had been issued.
On 30 October 2014, in case no II 1 Cz 431/14, the Gdańsk Regional Court quashed the order of 22 March 2011 because the composition of the court dealing with the case had been wrong, and remitted the case to the lower court.
The applicant submitted that the Gdańsk Południe District Court had heard J.J. on 23 January 2015, and he had expressly stated that he wished to stay with his mother.
On 7 March 2016 the Gdańsk Południe District Court granted J.J.’s father parental responsibility and ordered that the child should live with him. It appears that the applicant lodged an appeal and that the proceedings are pending before the court of second instance.
D. Contact with the child
On 12 August 2011 the applicant applied for contact rights in respect of her son.
On 18 August 2011, in case no. IV R Nsm 537/010, the Gdańsk Południe District Court issued an interim decision by which the applicant was authorised to visit her child without K.J. being present and have contact with him outside of his home: on the first Saturday and Sunday of the month from 10 a.m. to 7 p.m.; on the third Saturday and Sunday of the month from 10 a.m. to 7 p.m.; on Mondays and Fridays (if she visited him on Saturday and Sunday) from 2 p.m. to 6 p.m.; and on Mondays, Wednesdays and Fridays (if she did not visit him on Saturday and Sunday) from 2 p.m. to 6 p.m. The court found that the applicant had last seen her son on 5 July 2011.
On 25 October 2011, in case no. II Cz 342/11, the Gdańsk Regional Court amended the decision of 18 August 2011 by authorising that contact could take place between J.J. and his mother at his father’s home, in the presence of a guardian, on Wednesdays from 4 p.m. to 6 p.m., and on the first, third and fourth Sunday of the month from 10 a.m. to 2 p.m. The court noted that the visits should take place at the child’s home. The court held that the applicant had started to attend therapy (from 2 March to 2 May 2011), but previously she had been very reluctant to do so.
On 9 December 2011 the applicant lodged an application to vary the decision of 25 October 2011. That application was dismissed by the court, as no new circumstances had arisen since the last decision had been issued.
COMPLAINTS
Invoking Article 8 of the Convention, the applicant complains about the proceedings regarding her parental responsibility and the child’s place of residence. She further complains that her child was unjustifiably removed from her.
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:
Was the length of the proceedings determining parental responsibility in breach of Article 8 of the Convention (see, for example, Süß v. Germany, no. 40324/98, § 100, 10 November 2005, Strömblad v. Sweden, no. 3684/07, § 80, 5 April 2012, S.I. v. Slovenia, no. 45082/05, § 69, 13 October 2011 and V.A.M. v. Serbia, no. 39177/05, § 49, 13 March 2007) also in view of the fact that during the proceedings the child was placed with the father (see, for example, Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299‑A, Zawadka v. Poland, no. 48542/99, § 55, 23 June 2005, G.B. v. Lithuania, no. 36137/13, § 87, 19 January 2016)?
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