Communicated on 29 January 2015
FOURTH SECTION
Application no. 28481/12
Anita OLLER KAMIŃSKA
against Poland
lodged on 23 April 2012
STATEMENT OF FACTS
The applicant, Mrs Anita Oller Kamińska, is a Polish national, who was born in 1973 and lives in Gort, Ireland. She is represented before the Court by Mr G. Thuan Dit Dieudonne, a lawyer practising in Strasbourg.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The background and the removal of the child
On 27 March 2000 the applicant gave birth to a child, a girl named A. At that time she was married to the child’s father, M.K., and lived in Poland. She already had a son from a previous relationship, B, born in 1993.
In 2006 the family moved to Ireland where they lived together until January 2009, when the couple split up and M.K. moved back to Poland.
In June 2009 M.K. came to Ireland on holiday and expressed an intention to take A away for the summer holidays to Poland.
On 2 July 2009 a consent order was issued by the Ennis District Court, as an interim measure, stipulating that the child can visit Poland between 7 July and 15 August 2009 with M.K. It also established that the child’s habitual residence was in Ireland. Other custody matters were adjourned to the next hearing scheduled for 15 September 2009.
M.K. failed to return A to her mother on 15 August 2009.
2. The custody proceedings in Ireland
On 15 September 2009 the Ennis District Court decided that A’s residence would be with her mother in Ireland, who was granted the sole custody of A. The court further ordered the return of the child to the applicant.
M.K. appealed against the decision but the appeal was dismissed by the Limerick Circuit Family Court on 10 December 2009.
3. Proceedings in Poland attempting to seek A’s return to Ireland
In September 2009 the applicant applied to the Polish Ministry of Justice – designated as a Central Authority under the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) – for assistance in securing the return of the child.
On 6 October 2009 the Malbork District Court heard the applicant’s claim and M.K.’s counter claim to dismiss the case. It decided to commission an expert opinion from the Regional Family Consultation Centre (Rodzinny Ośrodek Diagnostyczno-Konsultacyjny – “RODK”).
On 15 October 2009 the applicant applied to the Polish authorities to recognise and enforce the Ennis District Court’s decision of 15 September 2009.
On 18 November 2009 the applicant requested to speed up the proceedings and schedule an earlier date for hearing the case. The applicant underlined that she had no contact with her daughter.
On 4 December 2009 the Gdańsk Regional Court decided to enforce the Irish decision of 15 September 2009. M.K. appealed against this decision to the Gdańsk Court of Appeal.
On 18 December 2009 the Malbork District Court rejected the applicant’s claim under the Hague Convention to return A to her. The court based its decision on Article 13, claiming that the Polish authorities are not bound to return the child since there may be a risk that the child would be exposed to physical or psychological harm or otherwise be placed in an intolerable situation. The court supported its reasoning on the findings of RODK and other social and psychological studies. In particular, the court highlighted RODK’s reporting of A’s wish to remain in Poland. RODK had also stated that M.K. is closer to A and more attentive to her particular needs than the applicant. It was found that, although the applicant was also an important person in A’s life, the child saw the applicant’s actions as going against her own wishes and putting her in uncomfortable situations.
On 18 May 2010 the Gdańsk Regional Court dismissed the applicant’s appeal.
On 22 June 2010 the Gdańsk Court of Appeal quashed the decision of the Gdańsk Regional Court of 4 December 2009. The court decided that the Irish court had ruled on parental responsibility and that judgment could not be reconciled with the subsequent judgment of the Polish court of 18 December 2009 dismissing the applicant’s claim for the child’s return under the Hague Convention. Therefore, the Irish decision was no longer enforceable in Poland. Following the applicant’s cassation appeal the Supreme Court on 24 August 2011 quashed and remitted the case. However, on 28 February 2012 the Gdańsk Court of Appeal refused to declare the enforceability of the 2009 Irish judgment on the ground that the High Court of the Republic of Ireland had made a new custody order on 9 September 2011 (see below).
4. Further proceedings in Ireland seeking A’s return
On 4 October 2010 the applicant lodged an application in Ireland for enforcement of the Ennis District Court’s decision of 15 September 2009 and the return of A to her.
On 28 January 2011 the High Court of the Republic of Ireland court gave an interim order. It considered that the Irish courts had jurisdiction to decide on the custody of A and retained this jurisdiction after wrongful removal of A in August 2009.
On 28 August 2011 the court commissioned clinical psychological report was published. The expert interviewed the applicant, A and M.K. She declared that both parents had the capability to provide a stable, loving home environment for A and that their care and affection is important to her emotional, social and psychological wellbeing. It was recommended to take account of A’s expressed wish to attend school in Poland and to consider an arrangement whereby the child lives with her father during school terms and spends all of her holidays in Ireland. The report also stated that firm arrangements should be put in place by the court for the times that A is to spend in her mother’s care and the father’s access during those times since, if there is room for parental discretion, the time allocated is likely to be reduced. This is especially the case because there is a risk that, due to M.K.’s belief in the importance of his constant input in A’s life, he would interfere with the development of the child’s confidence of and security in her mother’s care.
On 9 September 2011 the High Court of the Republic of Ireland gave a judgment. The court decided to grant joined custody to both parents, but still ordered return of the child to Ireland by 2 November 2011. The court decided that A should finish her school year in Ireland and start the next one from September 2012 in Poland. The judgment also stipulated what parts of school holidays A should spend with the applicant and which with M.K.
M.K. unsuccessfully appealed against the judgment and was refused a stay in the order on 21 October 2011.
5. Proceedings in Poland concerning the enforcement of the Irish decision of 9 September 2011
In October 2011 the applicant lodged an application with the Polish Ministry of Justice to enforce the judgment of the Irish High Court of 9 September 2011 and for the return of the child to her. The Polish Ministry of Justice advised the Irish Central Authority to file an application for the compulsory taking away of the child before the relevant court in Poland.
On 28 November 2011 the applicant lodged a request, through the Irish Central Authority, to return A to the applicant.
From October 2011 to January 2012 the Irish and the Polish Central Authorities corresponded with each other for the purposes of enforcing the Irish judgment of 9 September 2011.
On 23 January 2012 the Department of Justice, Equality and Law Reform received a letter from the Polish Ministry of Justice stating that the applicant’s application for the compulsory taking away of her daughter and her return to Ireland was sent to the Gdańsk District Court that same day.
On 25 January 2012 Judge Finlay Geoghegan, writing as the Irish Family Liaison Judge for the European Judicial Network, sent a letter to Judge Kudziak at the Polish Ministry of Justice, the Polish Family Liaison Judge for the European Judicial Network, urging the execution of the High Court of the Republic of Ireland’s custody decision of 9 September 2011. The letter also requested that, since M.K. had commenced divorce proceedings in which there is also a reference to custody, the relevant judge in the divorce proceedings be made aware of the Irish High Court order of 9 September 2011.
On 9 May 2012 the Malbork District Court held a hearing and encouraged the parties to reach an agreement as to the date of return of the child to Ireland.
On 28 June 2012 the Malbork District Court ordered a guardian to take A away from M.K.
On 6 July 2012 the applicant and guardian arrived at M.K.’s place of residence to take the child away, but found the residence vacant.
On 7 September 2012 the Malbork District Court discontinued proceedings for the compulsory execution of the decision made by the Irish court on 9 September 2011. The court considered that the applicant’s right to demand A’s return to Ireland effectively expired on 31 August 2012 and, as of that day, there was no executive title on the ground of which proceedings could be exercised effectively. This is because the original order from the 2011 Irish judgment stated that A was to start the 2012 school year in Poland. Therefore, compulsory taking away of the minor was inadmissible.
On 26 September 2012 the applicant met A outside her school and travelled to Ireland with her.
On 12 November 2012 the Gdańsk District Court quashed the Malbork District Court findings of 7 September 2012 stating that the return order was still valid.
6. Proceedings in Ireland after A’s return to Ireland
On 21 October 2012 the applicant applied to the High Court of the Republic of Ireland seeking an order prohibiting the removal of A from the Republic of Ireland by any person, save the applicant, without the consent of the applicant or the leave of the court. During the subsequent proceedings M.K. made requests to have unsupervised contact access with A by telephone or Skype. The court commissioned expert opinion and held hearings.
On 24 June 2013 the parties reached an agreement. The terms of the agreement stated that, for the next year and pending review by the court in July 2014, the applicant would have sole custody of A. It also stated M.K.’s access rights, which are to be during his visits to Ireland, and with two weeks advance notice to the applicant, on a Saturday from 1.30 p.m. to 7 p.m. and on a Sunday from 11 a.m. to 7 p.m. During the school holidays access could take place in Ireland for longer periods and on week days.
7. Proceedings brought by M.K. to secure the return of A to him
On 8 October 2012 M.K. brought proceedings in the Polish courts requesting an order that A be returned to him.
On 11 January 2013 the Malbork District Court excluded SSR Hanna Solecka from taking part in the court proceedings, due to her close personal ties with M.K.’s mother.
On 11 February 2013 the Malbork District Court rejected M.K.’s claim, stating that it is the Irish court’s jurisdiction to decide his claim, seeing as A’s habitual residence was in Ireland. M.K. lodged an appeal from this decision.
On 22 March 2013 the Malbork District Court appointed a legal guardian to represent A’s interests in proceedings concerning the applicant’s taking of A to Ireland without the consent of M.K.
On 6 May 2013 the Gdańsk Regional Court quashed the decision of the Malbork District Court of 11 February 2013. The court decided that, in accordance with the decision of the Gdańsk Regional Court in its decision of 4 July 2011 (see below), A’s place of residence was with her father in Malbork.
Following the quashing, M.K.’s motion had to be returned to the lower court. It appears therefore that the proceedings are pending.
8. The divorce proceedings and finalising the dispute
In July 2009 M.K. initiated divorce proceedings before the Gdańsk District Court, which were subsequently stayed pending the determination of the application concerning the child’s return.
On 16 March 2011 M.K. applied for an interim order to establish that A’s place of residence is with him during the course of the proceedings.
On 4 July 2011 the Gdańsk Regional Court granted M.K. an interim order establishing that M.K. shall have custody over A for the duration of the proceedings. The court considered that the child’s place of residence was in Poland. The court reasoned that, although both parents have custody of A, M.K. is in a better at exercising his parental rights, since he is in Poland and since A and M.K. have a strong bond. M.K. has provided a guarantee that A will be properly cared for. A was found by the court to have settled well in Malbork, since she was doing well in school and socialising with fellow students. The court stated that in spite of the divorce proceedings in Poland, the applicant also brought actions before the Irish courts concerning A, thus giving rise to feelings of uncertainty in the child and the fear that she will be taken to Ireland against her will. This, the court reasoned, deemed it necessary to grant the injunction.
On 17 October 2013 the Irish liaison judge for the EJN wrote to the Polish liaison judge informing him of the custody proceedings in Ireland, the agreement of 24 June 2013 made by the parties in relation to custody and access rights and the Order of 25 June 2013 of the High Court of the Republic of Ireland giving effect to that agreement. The letter requested that this information be passed on to the judge in the divorce proceedings before the Polish courts.
On 30 October 2013 the Gdańsk Regional Court divorced M.K. and the applicant, stating that it was a shared fault. The court refused to decide on issues of custody and access rights, referring to the agreement the parties came to on 24 June 2013 before the court in Ireland.
It is not clear whether that decision is final.
9. The applicant’s contacts with A
After M.K. failed to return the child on 15 August 2009 the applicant had no contact with her daughter for three months.
On 8 October 2009 the applicant saw A for the first time during an interview conducted by court experts.
On 18 December 2009 the applicant saw A in Poland at the court hearing. At no point could she spend time with A alone.
In May 2010 the applicant saw A in Poland for a few consecutive days. She also saw her in February 2011 and attended her birthday party in March 2011.
It appears that afterwards A came to Ireland upon a court order in July 2011. At that time A, the applicant, B and M.K were all interviewed by the expert of the High Court.
Since 26 September 2012 A has been in the care of the applicant. They live in Ireland.
B. Relevant domestic law and practice
1. Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980
The relevant provisions of the Hague Convention can be found in the judgment of the Court in Ignaccolo-Zenide v. Romania, no. 31679/96, 25 January 2000.
2. European Union Law
The relevant provisions of Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility (Brussels IIa Regulation) provide as follows:
Preamble
“(17) In cases of wrongful removal or retention of a child, the return of the child should be obtained without delay, and to this end the Hague Convention of 25 October 1980 would continue to apply as complemented by the provisions of this Regulation, in particular Article 11. The courts of the Member State to or in which the child has been wrongfully removed or retained should be able to oppose his or her return in specific, duly justified cases. However, such a decision could be replaced by a subsequent decision by the court of the Member State of habitual residence of the child prior to the wrongful removal or retention. Should that judgment entail the return of the child, the return should take place without any special procedure being required for recognition and enforcement of that judgment in the Member State to or in which the child has been removed or retained.”
Article 11
“1. Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of the Hague Convention [..], in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention, paragraphs 2 to 8 shall apply....
3. A court to which an application for return of a child is made as mentioned in paragraph 1 shall act expeditiously in proceedings on the application, using the most expeditious procedures available in national law.
Without prejudice to the first subparagraph, the court shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged...”
3. The Polish Code of Civil Proceedings
The 1964 Code of Civil Proceedings (Kodeks Postę powania Cywilnego) in Article 577 provides as follows:
“The custody court can change its decision if the best interests of the person it concerns so require.”
The amendment to the Code introduced on 19 July 2001, which entered into force on 27 September 2001, deals with the proceedings concerning the return of children under the Hague Convention.
Article 5986 provides, that if a person who is ordered to return a child does not comply with the court’s order, the court will instruct the guardian to remove the persons concerned forcibly (przymusowe odebranie osoby).
According to Article 59810:
“Upon a request of a court guardian, the police are obliged to help him in carrying out the forcible removal of [a minor].”
Article 59811 § 1 provides as follows:
“If forcible removal of [a minor] is hindered because that person is hidden or because other action is taken with the aim to stop the enforcement of the order, the court guardian shall inform a prosecutor.”
Pursuant to 59812:
Ҥ 1 The court guardian, in carrying out the removal of [a minor], shall be especially careful and shall do everything to ensure that the well-being of that person is not disturbed and that [he or she] does not sustain physical or moral harm. If necessary, the guardian shall request the assistance of the social services or another institution tasked with this function.
§ 2 If the well-being of [a minor] would be in danger as result of the removal, the guardian shall stop the enforcement of the order until the danger is over, unless the stopping of the enforcement would cause greater danger to the person.”
4. The Polish Criminal Code
Article 211 of the 1997 Criminal Code (Kodeks Karny) provides as follows:
“Whoever, contrary to the will of the person appointed to take care of or supervise, abducts or detains a minor person under fifteen years of age or a person who is helpless by reason of his mental or physical condition shall be liable to a penalty of deprivation of liberty for up to three years.”
COMPLAINTS
The applicant complains under Articles 6, 8 and 13 of the Convention about the Polish authorities’ failure to speedily enforce the Irish court decisions awarding her sole custody of her child and requesting the child to be returned to Ireland. In particular, she complains about the proceedings under the Hague Convention and the inordinate delay in enforcing the Order made by the High Court on 9 September 2011. The Polish authorities’ inaction resulted in loss of contact with her daughter. Even after the Irish court’s order of 25 June 2013 giving the applicant sole custody over her daughter the Polish authorities continue to claim her return. The applicant submits that she receives threats and pressures from Polish authorities to return A to Poland.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicant’s right to respect for her private and family life, within the meaning of Article 8 § 1 of the Convention?
If so, was that interference in accordance with the law in terms of Article 8 § 2 (in particular EU law, Council Regulation (EC) No. 2201/2003 of 27 November 2003)?
2. Has there been a failure by the State to comply with its positive obligations to protect the applicant’s right to respect for her family life under Article 8 of the Convention?
As regards questions 1 and 2, reference is made to the applicant’s allegations that the Polish authorities:
a) failed to ensure the prompt return of the child to her mother’s care as ordered by the Irish judgments;
b) failed to enforce speedily judgments of the Irish High Court of 2009 and 2011;
c) gave rise to the situation in which the applicant did not see her daughter between 2009 and 2012 except for a few occasions;
d) continue de facto assuming jurisdiction in custody matters (see decisions of 4 July 2011 and 6 May 2013), which led to the matter being dealt with by Polish and Irish courts at the same time.
3. Was the length of the enforcement proceedings in respect of two judgments issued by the Irish High Court in 2009 and 2011 in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?
4. The Polish Government are invited to provide information as to the following course of the divorce proceedings after the judgment of 30 October 2013 (II C 824/11) and of the proceedings for the return of the child to Poland after the decision of 6 May 2013 (II Cz 143/13). They are further invited to submit copies of following decisions in Polish, with reasoning:
a) judgment of the Supreme Court of 24 August 2011 (IVCSK 566/10);
b) decision of the Gdańsk Regional Court of 4 July 2011 (IIC 824/11).
Full & Egal Universal Law Academy