Communicated on 2 November 2016
FOURTH SECTION
Application no. 80096/12
Jakub PAWŁOWSKI
against Poland
lodged on 23 November 2012
STATEMENT OF FACTS
The applicant, Mr Jakub Pawłowski, is a Polish national who was born in 1978 and lives in Poznań.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is the biological father of A., a boy born on 5 July 2003. His paternity was established on 18 February 2004 by a judgment given by the Poznań District Court (Sąd Rejonowy).
In October 2007 the child’s mother U. married a certain P.
1. Contact arrangements
On 30 November 2007 the child’s mother, U., lodged an application with the Poznań Regional Court (Sąd Okręgowy) asking for the applicant’s parental authority over A. to be removed.
On 17 October 2008 the Poznań Regional Court gave a decision and deprived the applicant of parental responsibility over A, owing to his passive attitude and his unwillingness to provide care for his son or to contact him. The court referred to the fact that the applicant did not wish to maintain contact with A.
On 7 June 2011 the applicant lodged a request with the Poznań District Court to have contact arrangements defined, together with an application for an interim contact order. He submitted that his last contact with the child had been in November 2007. He explained that contact had been interrupted because of his illness and the fact that he had meanwhile served a term of imprisonment.
On 16 January 2012 U. and her husband P., asked the court to dismiss the applicant’s application in view of the fact that the child had been adopted by P.
In his pleadings of 7 February 2012 the applicant, referring in particular to Article 8 of the Convention and the Court’s case-law, asked the courts to investigate whether contact between A. and his biological father would be in A’s best interest. He further submitted that he had not been a party to the adoption proceedings and had had no opportunity to express his view on the issue. Moreover, his application for establishment of contact had been submitted before the decision on adoption had been given.
On 2 March 2012 the Poznań District Court dismissed the applicant’s request for establishment of contact with A.
The court considered that the applicant’s personal situation was stable. He was married and he and his wife were raising her nine-year-old daughter. In addition, he had been running a business since 2005 and had a regular income. He paid maintenance regularly for A., who had been living with his mother. In October 2007 the child’s mother U. had married and since then she and her husband P. had been raising A.. The child referred to P. as “father”. P. and U. also had another child together. The children had a very good relationship. The last time the applicant had contact with A. was in November 2007. Until then the contact had been irregular and no emotional bond had been created. The court referred to the opinion given by the Family Consultation Centre (Rodzinny Ośrodek Diagnostyczno Konsultacyjny “the RODK”) in 2008, according to which, A. called the applicant by his first name and referred to P. as “father”.
The Poznań District Court based its decision on the fact that the applicant had no standing to institute contact proceedings, as following the adoption all family ties between the applicant and his son had been severed. The court dismissed the applicant’s requests for certain witnesses to be heard with regard to the applicant’s alleged efforts to contact his child as irrelevant in the context of the adoption that had already taken place. The court noted the applicant’s unjustified absence from a hearing held on 2 March 2012.
The applicant appealed.
On 1 June 2012 the Poznań Regional Court dismissed his appeal. Referring to the facts established by the court of first instance, it held that the applicant had no legal standing to apply for establishment of contact with A. As a consequence of A.’s adoption by P., the legal ties between A. and the applicant were severed and A. had established legal ties with P. In so far as the applicant complained about the assessment of evidence by the District Court, the Regional Court considered that the District Court had assessed the evidence correctly. The court also dismissed the applicant’s application to have the legal issue of the right to maintain contact with a child who had been adopted examined by the Supreme Court.
2. Adoption proceedings
On an unknown date in 2011 the child’s mother and her husband P. instituted before the Poznan District Court proceedings for adoption of A. by P.
On 14 November 2011 the Poznań District Court gave a decision and declared that A. had been adopted by P. Since none of the parties appealed, the decision became final on 28 November 2011.
The applicant did not take part in these proceedings and was not informed about them.
As a consequence of the decision on adoption, a new birth certificate was drawn up for A. indicating P as his father.
B. Relevant domestic law and practice
1. Adoption
Pursuant to Article 119 of the Family and Custody Code of 1964 (Kodeks Rodzinny i Opiekunczy - “The Family Code”) a child’s parents must consent to adoption unless they have been deprived of parental authority or are unknown, or there are significant obstacles in making contact with them.
However, as confirmed by the Supreme Court in its decision of 18 August 1999 (no. I CKN 541/99), a father deprived of parental authority remains the child’s close relative and therefore can participate in adoption proceedings under Article 510 of the Code of Civil Procedure. This provision provides, in so far as relevant:
“§ 1. Any person whose rights and obligations are affected by the outcome of the proceedings is an interested person; he or she may participate in the proceedings at any stage. If the person decides to participate, he or she becomes a party to the proceedings. An appeal is available against a refusal to be admitted as a party to the proceedings.”
In addition, pursuant to Article 576 §1 of the Civil Procedure Code, in important cases concerning family law the court should hear the child’s close relative (“osoba bliska”).
2. Contact with a child
Under Article 113 of the Family Code, irrespective of parental authority, a child’s parents have both a right and a duty to maintain contact.
COMPLAINT
The applicant complains under Article 8 of the Convention about the courts’ decisions refusing his request for establishment of contact arrangements on the ground that he lacked legal standing.
QUESTION TO THE PARTIES
Has there been a violation of the applicant’s right to respect for his private and family life, contrary to Article 8 of the Convention? Reference is made to the domestic courts’ decisions of 2 March 2012 and 1 June 2012 and the fact that the applicant did not participate in the proceedings concerning adoption of A. (compare A.K. and L. v. Croatia, no. 37956/11, 8 January 2013).
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