Information Note on the Court’s case-law No. 122
August-September 2009
Stochlak v. Poland - 38273/02
Judgment 22.9.2009 [Section IV]
Article 8
Positive obligations
Article 8-1
Respect for family life
Insufficient action by authorities to secure the return of a child abducted by her mother: violation
Facts – The applicant, his wife and their daughter lived in Canada. In 1996, at the end of holidays spent in Poland, the mother, a Polish national, decided to remain there with their daughter. The applicant brought various sets of proceedings from January 1997, one of which resulted in a final decision in October 1998 ordering his child’s return. However, he was not reunited with his daughter until April 2003.
Law – Article 8: Proceedings relating to the granting of parental responsibility, including execution of the decision delivered at the end of them, required urgent handling as the passage of time could have irremediable consequences for relations between a parent and his or her child. In the instant case, it was clear in January 1997, when the applicant contacted the Ministry of Justice concerning the abduction, that the child had been unlawfully removed. Yet a year and seven months had elapsed between the district court’s first decision and the final judgment on points of law, ordering the child’s return to her father. Furthermore, in the context of the civil enforcement proceedings, during the three years following the decision of December 1998 ordering the applicant’s wife to return the child within three weeks, no activity by the authorities could be discerned for the purpose of obliging her to comply with that order. It was only in January 2003 that a meeting was organised to ensure effective cooperation between the various State bodies responsible for action to bring about the child’s return. Finally, the authorities had twice traced the mother, without ever succeeding in recuperating the child. The appropriate authorities should have imposed adequate sanctions in respect of the mother’s lack of cooperation, which was the cause of many of the difficulties encountered. Although criminal proceedings had been brought against her three times in seven years, they had never resulted in any sanction, either because the act in question was not an offence under domestic legislation or because the authorities considered that the act had very little adverse social effect. Nor was any coercive measure imposed in the context of the civil enforcement proceedings. Having regard to the foregoing, and notwithstanding the respondent State’s margin of appreciation in the matter, the Polish authorities had failed to make adequate and effective efforts to enforce the applicant’s right to the return of his child and had thereby breached his right to respect for his family life as guaranteed by Article 8.
Conclusion: violation (unanimously).
Article 41: EUR 7,000 in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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