Communicated on 15 January 2015
FOURTH SECTION
Application no. 28768/12
Robert WDOWIAK
against Poland
lodged on 2 May 2012
STATEMENT OF FACTS
The applicant, Mr Robert Wdowiak, is a Polish national, who was born in 1975 and lives in Tryszczyn.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Early proceedings regarding the applicant’s access rights
On 2 December 2002 the applicant’s son J. was born. At that time the applicant lived together with the boy’s mother M.K. in the flat belonging to her parents. In 2003 the applicant moved out due to a conflict with M.K.’s father.
In 2005 the applicant complained to the court that M.K. was hindering his contacts with his son.
On 2 December 2005 the parties reached a friendly settlement before District Court detailing when the applicant would be able to visit the child. It was agreed that the applicant could see J. on two Saturdays and two Sundays a month from 10 a.m. to 6 p.m., as long as it was arranged with M.K. the preceding week. The applicant could also take J. on holiday for two weeks over the summer holidays. It was arranged that he would pick the child up from and bring him back to M.K’s place of residence.
In 2006 the applicant’s contacts with his son were on many occasions made impossible by his mother.
On 7 June 2006 M.K. brought a claim to change the applicant’s access rights. M.K. wanted to reduce the amount of time that the applicant could spend with J. She also indicated her intention to move to Germany with her son for economical reasons.
On 6 September 2006 the applicant brought a counter claim to regulate his access rights. He claimed that M.K. had been interfering with his contact hours. The applicant asked the court to order that he be able to see his son twice a month from 10 a.m. on Friday to 7 p.m. on Sunday; one day of Christmas or Easter from 10 a.m. to 10 a.m. the next day; three weeks of summer holidays and one week of winter holidays.
At the hearing on 17 January 2007 M.K. withdrew her application, thus the Bydgoszcz District Court discontinued the proceedings. The applicant appealed, complaining that his motion remains to be examined.
On 29 March 2007 the Bydgoszcz Regional Court quashed the impugned decision of the Bydgoszcz District Court. The court considered that it was a mistake to assume that the applicant consented to the discontinuation of his claim just because M.K. had chosen to withdraw her claim. It was established that the applicant’s access rights were still not being respected, especially since M.K. had moved to Germany with the child.
2. Abduction of the child and proceedings to enforce access rights
On 16 January 2007 M.K. moved to Germany with the child without the applicant’s consent and without informing him of their whereabouts.
The applicant initiated proceedings under the Hague Convention on the Civil Aspects of the International Child Abduction of 25 October 1980 (“the Hague Convention”). On 23 November 2007 the Celle District Court in Germany ordered that the child be returned to Poland to the father or a guardian, since the mother had illegally abducted the child under the Hague Convention. The court also noted that the applicant and M.K. have joint custody of J.W. under Polish law.
On 20 December 2007 the High Court in Celle dismissed M.K.’s appeal and ordered the return of the child to Poland. However, the court conceded that the child need not be handed over to the applicant. It stated that, as long as M.K. moves back to Poland in the required period, she will have complied with the court’s order.
On 14 January 2008 the German Central Agency communicated the above decisions to the Polish Ministry of Justice. The applicant was informed on 15 January 2008.
3. Further proceedings after return of the child to Poland
On 23 July 2007 M.K. lodged a claim to grant her custody of the child and establish J.’s place of residence with her. The applicant lodged a counter claim requesting to grant him the sole custody over J.
The proceedings were stayed between September 2007 and January 2008 due to pending proceedings under the Hague Convention.
On 1 April 2008 the Bydgoszcz District Court gave an interim measure ordering the child’s residence with his mother in Poland pending the final resolution of the case. The applicant appealed.
On the same date the court accepted the settlement between the parties regarding the applicant’s access rights. It was agreed that the applicant would be informed whenever J.’s place of residence changed. It was also agreed that he would be able to see J. every other Saturday and Sunday of the month from 9.30 a.m. to 6.30 p.m.; the second day of Christmas and Easter holidays for the same times; every 1 June from 4 p.m. to 7 p.m.; and two weeks of summer holidays from 1 to 15 July. The applicant was also under an obligation to allow M.K. to contact J.W. when the child was under his care and that he would not see the child on 19 July 2008, 20 July 2008, 18 July 2009 and 19 July 2009.
On 19 June 2008 the Bydgoszcz Regional Court decided to partly grant the applicant’s appeal and remitted the case to the District Court.
During the proceedings the Bydgoszcz District Court attempted to encourage the parties to undergo a therapy and to calm their conflict by mediation. The court ordered preparation of several expert opinions that were contested by the applicant. In particular the Regional Family Consultation Centre (Rodzinny Ośrodek Diagnostyczno‑Konsultacyjny -“RODK”) submitted its expert opinions on 16 October 2009 and in 2010.
On 10 March 2011 the Bydgoszcz District Court dismissed the applicant’s claim to order J.’s place of residence with him, leaving the child in M.K.’s care. The court also rejected M.K.’s counter claim asking for the court to decrease the applicant’s visiting hours. The applicant and M.K. were granted joint custody of J.W. The court established that in the period up to 2008 the bond between the applicant and the child had substantially loosened due to lack of often contacts between them. However their relations substantially improved as after the settlement of 1 April 2008, the contacts between the applicant and his son were happening without disturbances. Afterwards, upon the applicant’s request, the modalities of the contacts were amended on 29 September 2009. The court noted that the parties had been deeply conflicted, had stopped talking to each other and should be both held responsible for their situation. According to the experts, the parents would not be able to jointly decide on the important aspects of the boy’s life. Nevertheless the court found that both parties loved their child very much and wanted the best for him. The court found no reasons to limit one parent’s parental rights.
The parties appealed.
On 3 November 2011 the Bydgoszcz Regional Court partly granted the appeal. It considered it necessary to limit the applicant’s parental rights to the most important decisions regarding J.’s health, education, and upbringing. The court considered that due to acute conflict between the parents it would not be possible for them to carry out parental responsibility jointly.
In the meantime, on 11 August 2010, the Bydgoszcz District Court increased the amount of child benefits payable by the applicant to M.K. from 400 Polish zlotys (PLN) to PLN 500 per month.
4. Recent enforcement proceedings
On 27 April 2012 the applicant lodged a claim to enforce his access rights under Article 598(16) § 1 and § 2 of the Polish Civil Code of Proceedings (Kodeks Postępowania Cywilnego).
On 16 May 2012 the applicant brought a claim to change his contact hours with J.W. He also requested assistance of a court’s guardian during his visits with the child. On the same day the applicant lodged a further claim to enforce contacts with his child as determined by settlement of 29 September 2009. The applicant claimed that M.K. had been making it impossible for him to call his son although it had been provided by the settlement. Moreover, after November 2011, when his parental right had been limited, M.K. cancelled all subsequent visits with his son. Since March 2012 M.K. started claiming that their child refused to meet his father.
On 20 December 2012 the court commissioned another expert opinion from RODK. The applicant, M.K. and J.W. were heard by the experts.
On 15 February 2013 M.K. brought a claim to quash the settlement of 29 September 2009. She claimed that J. refused to see his father and, awaiting an expert opinion, it would be in the best interests of J. not to see his father.
On 19 February 2013 the Bydgoszcz District Court gave an interim measure, substantially limiting the applicant’s access rights and ordering that both the applicant and M.K. undergo therapy. The applicant was allowed to see his son at Macdonald’s, or another public place, for short visits in the presence of his mother or maternal grandparents. The applicant appealed.
By a decision issued on the same day the Bydgoszcz District Court ordered that M.K. pay the applicant a penalty each time he would be denied his access rights to J. as set down by the settlement of 29 September 2009. She was ordered to pay PLN 200 each time she interfered with the applicant’s right to see J. and PLN 50 every time she did not allow them to converse by telephone on Wednesdays. The court noted that it had not been disputed that M.K. for about one year had been preventing the applicant from seeing his son. M.K. lodged an appeal against the decision but it was dismissed on 26 June 2013 by the Bydgoszcz Regional Court.
On 28 May 2013 the Bydgoszcz Regional Court quashed the interim order of 19 February 2013.
On 13 June 2013 M.K. brought a claim to change the applicant’s access rights as agreed in the settlement of 29 September 2009. M.K. asked the court to order that the contact should take place every other weekend and in her or her parent’s presence, since J. had not seen the applicant in a long time and would feel unsafe with him. She also requested an interim measure from the court.
On 27 June 2013 the Bydgoszcz District Court granted the applicant’s request for interim measures. It stated that the applicant would have the right to see J. every other weekend for 2 hours on Saturday and two hours on Sunday in a public place and in the presence of M.K. or M.K.’s parents. Upon the applicant’s appeal the decision was modified by the Bydgoszcz Regional Court on 9 September 2013 the in that the length of the meeting was extended to three hours. The visits were to take place in the presence of M.K., M.K.’s parents or a guardian for the first three months.
On 3 March 2014 RODK published its expert opinion deciding that the applicant and M.K. should undergo therapy in order to learn to cooperate in decisions regarding their son. RODK also proposed that J. should consult a psychologist. It further observed that the current relations between the applicant and his son are strained, since J. has a negative attitude to the applicant and would not like to keep contact with him. This attitude is the result of the negative image of the applicant installed by his mother’s influence.
The proceedings are pending.
B. Relevant domestic law
The Polish Code of Civil Proceedings (Kodeks Postępowania Cywilnego)
According to the Supreme Court’s resolution, if a parent who has been obliged by a court decision to respect the other parent’s access rights refuses to comply therewith, decisions on access rights are liable to enforcement proceedings. The provisions of the Code of Civil Procedure on enforcement of non-pecuniary obligations are application to the enforcement of court decisions on parental rights or access rights (resolution of the Supreme Court of 30 January 1976, III CZP 94/75 OSNCP 1976 7-8).
If a court obliges a parent exercising custody rights to ensure access to a child to the other parent, Article 1050 of the Code of Civil Proceedings is applicable to the enforcement of this obligation. This article provides that:
“1. If the debtor is obliged to take measures which cannot be taken by any other person, the court in whose district the enforcement proceedings were instituted, on the motion of a creditor and after hearing the parties, shall fix the time-limit within which the debtor shall comply with his obligation, on pain of a fine (...).
2. If the debtor fails to comply with this obligation, further time limits may be fixed and further fines may be imposed by the court.”
Article 1092 of the Code provided as follows:
“When taking away a person who is the subject of parental authority or who is in care, the bailiff shall be especially careful, and shall do everything to protect such a person from physical and moral harm. The bailiff shall request the assistance of social services, or another institution tasked with this, or a court expert.”
COMPLAINTS
The applicant complains under Articles 8 and 6 of the Convention about:
i) the failure of the domestic authorities to facilitate his contact with his child in the first phase of proceedings (culminating in decisions of the court in 2008);
ii) procedural delays and the length of proceedings, which lasted from 22 January 2007 to 3 November 2011.
The applicant also complains under Articles 6, 8 and 14 about the limitation of his parental responsibility, namely the fact that the mother alone has the right to decide about the child’s place of residence.
QUESTIONS TO THE PARTIES
1. Has there been a failure by the State to comply with its positive obligations to protect the applicant’s right to respect for his family life under Article 8 of the Convention? Reference is made to the applicant’s allegation that he has been unable to enforce his access rights particularly since 2011 and the length of proceedings regarding the applicant’s custody of J.
2. Was the length of the civil proceedings which ended on 3 November 2011 in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?
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