FOURTH SECTION
DECISION
Application no. 34238/07
by Grażyna IWUĆ-BETCHER
against Poland
The European Court of Human Rights (Fourth Section), sitting on 4 October 2011 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva,
Vincent A. De Gaetano, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 2 August 2007,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Grażyna Iwuć-Betcher, is a Polish national who was born in 1961 and lives in Częstochowa.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background of the case
3. In 1993 the applicant married R.B. The couple had a son O., born on 10 April 1994. The family lived together until November 2002 when the applicant took O. and moved back to her old house. On the same day, after a scuffle with the applicant, R.B. took O. from her and from that time onwards maintained the actual custody over the child.
2. Divorce proceedings and access arrangements
4. On 12 December 2002 the applicant filed a petition for divorce. At the Częstochowa Regional Court’s (Sąd Okręgowy) request, on 30 April 2003 three experts of the Family Diagnostics Centre (Rodzinny Ośrodek Diagnostyczno-Konsultacyjny, hereinafter: the Family Centre) gave an expert opinion, in which they pointed to O.’s clear entanglement in the strong marital conflict between the applicant and R.B. The experts observed that O. was being strongly influenced by his father and that many of his statements were “induced” statements deprecating the applicant whom the child perceived very negatively. They found the existing family situation to be detrimental to the child and proposed to separate him temporarily from both parents and place him in a health resort (sanatorium). They moreover advised the court to consider the supervision of the family situation by an appointed court guardian (kurator sądowy).
5. On 22 May 2003 the Częstochowa Regional Court specified the access arrangements, allowing the applicant to visit O. once a week for four hours at R.B.’s house and under the supervision of a court guardian. On 20 November 2003 the Katowice Court of Appeal (Sąd Apelacyjny) dismissed the applicant’s appeal, holding that the access arrangements specified by the Regional Court were reasonable.
6. At the court hearing held on 24 May 2004, an expert of the Family Centre recommended that the applicant’s contacts with O. take place in a neutral place instead of the father’s house. Consequently, on 23 August 2004 the Częstochowa Regional Court provisionally changed the access arrangements, allowing the applicant to meet O. on three consecutive Sundays in a fast-food restaurant under the supervision of a court guardian. Due to unspecified organisational problems, only one of the three planned meetings took place.
7. On 18 October 2004 the Regional Court permanently changed the access arrangements, allowing the applicant to see O. once a week for two hours in a fast-food restaurant under the supervision of a court guardian. On 9 December 2004 the Katowice Court of Appeal dismissed the applicant’s appeal, finding that the right of access was primarily the right of the child and not that of the applicant. The Court noted that the child apparently did not wish to see the applicant and pointed to the applicant’s lack of patience and her unwillingness to cooperate with the supervising court guardian.
8. At the hearing held on 18 April 2005, the court guardian informed the court that during the meetings in the restaurant O. had not wanted to see the applicant without his father’s presence.
9. At the Częstochowa Regional Court’s request, on 12 December 2005 the Family Centre prepared another opinion. The opinion stated that the reason for O.’s aversion to the applicant had been his father’s behaviour. The experts noted that the child was under the strong influence of his father and reacted hysterically to the applicant’s presence. They urged the court to suspend O.’s meetings with the applicant and to undertake steps aimed at improving their mutual relations. The opinion moreover recommended placing the child under psychological assistance and stated that the child’s father should be persuaded to participate in the meetings with a psychologist in order to correct his attitude.
10. On 6 January 2006 the applicant requested the court to change the access arrangements and allow her to meet O. at her own home. On 13 January 2006 the Regional Court dismissed her request, holding it to be premature, on account of the Family Centre’s recommendation that the applicant’s contacts with O. be temporarily suspended. The Regional Court noted that O. clearly did not wish to see his mother and that it would be contrary to the child’s best interests if the meetings were to take place at the applicant’s home.
11. On 14 March 2006 the Katowice Court of Appeal dismissed the applicant’s appeal. The Court of Appeal observed that the Regional Court should issue appropriate decisions in view of the expert findings indicating the child’s father’s incorrect parental behaviour. The Court of Appeal urged the Regional Court to consider changing the access arrangements and, in particular, to consider the possibility of allowing the applicant to meet her son without the father’s presence, under the supervision of the court guardian, in order to improve the relations between the applicant and the child. It further noted that it would be detrimental to the child’s emotional health if the existing situation were to persist.
3. Divorce decision
12. On 13 June 2006 the Częstochowa Regional Court dissolved the applicant’s marriage without attributing the fault to either party. The court awarded custody rights to R.B., finding that O. demonstrated strong affection for his father who, in the court’s view, offered better prospects for the proper exercise of custody. The court restricted the applicant’s custody rights over O., holding her to have been an inept mother who in the past had largely neglected O.’s education. The Regional Court further decided that the access arrangements would be specified by the Public Psychological and Pedagogical Counselling Service (Publiczna Poradnia Psychologiczno‑Pedagogiczna, hereafter: the Counselling Service) in Częstochowa. The divorce court also held that placing O. in a health resort (sanatorium) would only constitute a temporary remedy while putting him in a foster family would be contrary to his best interests, given his affection for, and dependence on, his father.
13. The applicant did not appeal against the divorce decision and it subsequently became final.
4. Further course of events following the divorce
14. In March 2007 the Director of the Counselling Service informed the applicant that her weekly meetings with O. would be one hour long and take place on the premises of the Counselling Service. It appears that no psychologist has ever assisted in the meetings.
15. In June 2007 the Director of the Counselling Service requested the court to discharge the Counselling Service from the duty to organise the applicant’s meetings with O., due to the child’s and his father’s visible unwillingness to comply with the access arrangements. The Director explained that from the very outset the meetings had met with difficulties and that from 13 April 2007 onwards O. had no longer been coming to the meetings.
16. On 3 July 2007 the Częstochowa District Court (Sąd Rejonowy) ordered R.B. to comply with the access arrangements, on pain of a fine in the amount of PLN 500 (approx. EUR 125) being imposed on him. R.B.’s appeal was dismissed by the Częstochowa Regional Court on 6 September 2007. It appears that R.B. has since then complied with the access arrangements and brought O. to the meetings with the applicant.
17. On 28 August 2007 the applicant requested the court to fine R.B. once more for his non-compliance with the access arrangements. The applicant argued that O. would only briefly appear at the meetings and not talk to her, after which he would leave the Counselling Service and be driven home by his father or grandfather.
18. On 16 April 2008 the Częstochowa District Court dismissed her request, finding that R.B. had complied with the access arrangements by bringing O. to the meetings and that he could not be blamed for O.’s own reluctance to see the applicant. On 26 June 2008 the Częstochowa Regional Court dismissed the applicant’s appeal. In passing, the Regional Court expressed a view that the child was clearly being harmed, a circumstance which both parents – R.B. and the applicant alike – refused to admit.
19. On 18 March 2008 the Częstochowa District Court ex officio issued a temporary order on access arrangements, allowing the applicant to meet O. at her home every first Sunday of each month for three hours and for another three hours on Easter Sunday. The applicant’s appeal was dismissed by the Częstochowa Regional Court on 19 June 2008.
20. At the Częstochowa District Court’s request, on 27 November 2008 the Family Centre in Zawiercie issued another expert opinion. Without giving any excuse, the applicant did not appear at either of the two interviews with the Family Centre’s experts. The experts found that in the past several years the applicant had been absent from O.’s life and that O.’s attitude towards her was hostile. They noted that O. did not wish to see the applicant and they recommended a temporary suspension of their contacts. The experts moreover recommended that psychological assistance be given to O. with a view to analysing and rectifying his relations with the applicant. At the same time, they criticised the applicant for her inability to deal with her role as a mother and observed that her motivation for having access to her son appeared to be superficial.
21. On 9 December 2008 the Częstochowa District Court dismissed the applicant’s renewed request for changing the access arrangements. It noted that O. had come to the applicant’s home on several occasions and invited her out for a walk or for coffee but that the applicant, to O.’s disappointment, had shown no flexibility and insisted that the meetings only take place at her home. The District Court concluded that the applicant’s inflexible stance did not warrant changing the access arrangements. The applicant’s appeal was dismissed by the Częstochowa Regional Court on 12 March 2009.
22. At the applicant’s request filed on 8 August 2008, on 8 April 2009 the Częstochowa District Court ordered R.B. to comply with the access arrangements, on pain of a fine in the amount of PLN 500 (approx. EUR 125) being imposed on him, as the applicant had had no effective access to O. since 23 November 2008.
23. On 20 May 2009 the Częstochowa District Court ex officio changed the access arrangements, deciding that the venue of the applicant’s contacts with O. was to be a local café instead of the applicant’s house. The Court recognised that O. was disappointed with the applicant’s lack of flexibility as to the venue of the meetings and it acknowledged the findings of an expert psychologist, according to which O.’s attitude towards the applicant was now genuinely his own and no longer influenced by his father. The applicant’s appeal was rejected by the Częstochowa Regional Court on formal grounds on 22 October 2009.
24. On 4 August 2009 the Częstochowa District Court refused the applicant’s request to fine R.B. for non-compliance with the access arrangements, finding the applicant to be at fault for the unsuccessful meetings with O. on account of her bringing other members of her family to the meetings without seeking O.’s prior consent. The applicant’s appeal was dismissed by the Częstochowa Regional Court on 29 October 2009.
25. According to the applicant, O., who is now seventeen years old, currently does not come to the meetings with her or appears at the meetings in the café but stays for no longer than half an hour, instead of the two hours specified by the access arrangements. On several occasions, the applicant unsuccessfully requested the court to change the venue of the meetings with O. back to her house.
B. Relevant domestic law and practice
26. If the court obliges a parent exercising custody rights to ensure access by the other parent to the child, Article 1050 of the Code of Civil Proceedings (Kodeks postępowania cywilnego) is applicable to the enforcement of this obligation.
27. Article 1050 provides, in so far as relevant:
“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 a motion of the 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 being imposed on him.
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.”
COMPLAINTS
28. The applicant complained under Article 6 § 1 of the Convention that the evidence adduced in the course of her divorce proceedings had been wrongly assessed and that the divorce court had not been impartial.
29. She also complained under Article 8 of the Convention that the Polish authorities had failed to take effective steps to facilitate her right to have contact with her son who after the family breakdown had remained in the custody of his father.
30. The applicant moreover complained under Article 13 of the Convention that she had not had an “effective remedy” against the family court’s decisions since her interlocutory appeals had been dismissed each time by the second-instance court.
31. Invoking Article 14 of the Convention, the applicant complained that the family courts had discriminated against her, unfairly favouring her son’s father in the proceedings.
32. Lastly, she generally complained under Article 5 of Protocol No. 7 that the domestic authorities had violated the principle of equality of spouses.
THE LAW
A. Alleged violation of Article 8 of the Convention
33. The applicant complained under Article 8 of the Convention that the Polish authorities had failed to take effective steps to facilitate her right to have contact with her son who after the family breakdown had remained in the custody of his father.
34. Article 8 provides, in so far as relevant:
“1. Everyone has the right to respect for his private and family life (...).
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
35. The Court recalls that the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities but may under certain circumstances also require positive action by the State. Article 8 of the Convention requires from the domestic authorities, who have the benefit of direct contact with the persons concerned, a delicate task of balancing the interests of all members of the family. Moreover, in deciding issues of child custody and parents’ access to children following a family breakdown, the authorities enjoy a wide margin of appreciation (see, amongst other authorities, Glaser v. the United Kingdom, no. 32346/96, § 64, 19 September 2000; Elsholz v. Germany [GC], no. 25735/94, § 49, ECHR 2000-VIII; Siemianowski v. Poland, no. 45972/99, § 97, 6 September 2005.
36. Turning to the circumstances of the present case, the Court observes that the applicant enjoyed unrestricted access to her son until 28 November 2002, by which time the child was already eight years old, when the child’s father assumed the sole custody over him. On the applicant’s request, on 22 May 2003 the family court specified the access arrangements. Before this was done, the court had taken steps to assess what scheme of visits was appropriate in the circumstances of the case. In specifying the access arrangements, the court took proper account of the recommendations of a report prepared by three expert psychologists. The access arrangements specified by the Częstochowa Regional Court do not appear arbitrary or unreasonable. Moreover, the visits were supervised by a court guardian in order to ensure their proper course. The supervisory guardians were later regularly consulted by the court and kept it informed about developments, to which the courts reacted by adjusting accordingly the access arrangements. Nothing indicates that the supervisory guardians were negligent or lacked impartiality in performing their duties.
37. The applicant was at first allowed to see her child once a week for four hours, from 18 October 2004 onwards once a week for two hours, from 15 March 2007 once a week for one hour, from 18 March 2008 once a month for three hours and currently once a month for two hours. As for the venue of visits, they first took place at the child’s father’s home and in the presence of a court-appointed supervisory guardian; then in a fast-food restaurant (with the court guardian), later in a psychological counselling service, at the applicant’s home and finally in a café.
38. The Court notes therefore that it was not the domestic court that had denied the applicant access to her son but that the effective exercise of that right had been frequently impeded by the child’s father who had showed little determination to comply with the access arrangements. It is true that the applicant’s contacts with her child were irregular and not always perfectly in accordance with the access arrangements. It is also true that the child’s father’s incorrect parental behaviour and deprecating statements had influenced considerably the child’s negative perception of the applicant, hampering the applicant’s efforts to establish a meaningful contact with the child.
39. However, the analysis of the case documents reveals also that the applicant herself cannot be regarded as entirely blameless for the situation complained of before the Court, and that her motivation for having access to her child often appeared not to be very strong or genuine. The Court notes that the applicant herself often disregarded the access arrangements and the instructions of the court guardian supervising the visits. Moreover, she demonstrated a certain lack of flexibility in carrying out the access arrangements, for instance by bringing members of her family to meetings with her son without seeking his prior consent, or by insisting that the meetings take place at her home (see paragraphs 21 and 23-24 above).
40. The Court recalls that the obligation of the national authorities to take measures to facilitate meetings between a parent and a child is not absolute. Whilst national authorities must do their utmost to facilitate such cooperation, any obligation to apply coercion in this area must be limited since the interests as well as the rights and freedoms of all concerned must be taken into account, and more particularly the best interests of the child and his rights under Article 8 of the Convention. What is decisive is whether the national authorities have taken all necessary steps to facilitate access as can reasonably be demanded in the special circumstances of each case (see Hokkanen v. Finland, no. 19823/92, § 58, 23 September 1994; Siemianowski, cited above, in §§ 98-100; D. v. Poland (dec.), no. 8215/02, 14 March 2006).
41. Turning again to the particular circumstances of the present case, the Court observes that the conflict between the applicant and R.B. made it particularly difficult for the domestic authorities to act effectively in order to enforce the applicant’s visiting rights in full. The Court notes that the authorities examined the applicant’s requests to fine R.B. with a fair amount of diligence and managed to discipline the child’s father to the extent necessary to allow the applicant to have physical access to her child as specified by the access arrangements. The applicant’s requests for the enforcement of the access arrangements prompted the domestic court to issue enforcement orders on 3 July 2007 and on 8 April 2009. The two orders required the child’s father to comply with the access arrangements on pain of a fine and it appears that they were successful in bringing about the father’s compliance without the need for their actual enforcement.
42. Lastly, the Court notes that, although the applicant’s ties to her son might currently be described as rather loose, the facts of the case do not allow for concluding that the situation complained of resulted in a permanent loss of the applicant’s contact with her child (see, mutatis mutandis, Zawadka v. Poland, no. 48542/99, § 67, 23 June 2005).
43. Having regard to the wide margin of appreciation afforded to the State in similar cases involving positive obligations under Article 8 of the Convention, the Court considers that the national authorities cannot be said to have failed to take all the steps necessary to enforce the access rights which could reasonably be required in the very difficult family conflict they had to deal with.
44. It follows that this complaint is manifestly ill-founded and should be declared inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
B. Other alleged violations of the Convention
1. Alleged violation of Article 6 of the Convention
45. The applicant generally complained under Article 6 of the Convention that the divorce proceedings had been conducted in an unfair manner and that court had not been impartial. Article 6 § 1 provides, in so far as relevant:
“In the determination of his civil rights and obligations (...) everyone is entitled to a fair and public hearing (...) by an independent and impartial tribunal”.
46. The Court notes that the applicant failed to lodge an appeal against the divorce decision of 13 June 2006. It follows that this complaint must be declared inadmissible for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.
2. Alleged violation of Article 13 of the Convention
47. The applicant complained that she had not had an “effective remedy” against the decisions of the family court, as required by Article 13 of the Convention, which provides as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
48. The Court recalls that a “remedy” within the meaning of Article 13 does not mean a remedy bound to succeed, but simply an accessible remedy before an authority competent to examine the merits of a complaint (Lorsé and Others v. the Netherlands, no. 52750/99, § 96, 4 February 2003). In this context, the Court considers that interlocutory appeals against decisions of the family court, filed before a higher court, were in fact accessible and capable of providing redress.
49. It follows that this complaint is manifestly ill-founded and must be declared inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
3. Alleged violation of Article 14 of the Convention
50. The applicant complained of discriminatory treatment under Article 14 of the Convention, which provides:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
51. In this regard, the Court observes that the applicant failed to adduce any arguments in support of her allegations or to specify the nature of the discriminatory treatment to which she had been allegedly subjected.
52. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds no appearance of a violation of the rights and freedoms set out in the Convention or its Protocols arising from this complaint.
53. It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
4. Alleged violation of Article 5 of Protocol No. 7
54. Lastly, the applicant complained under Article 5 of Protocol No. 7 that the domestic authorities violated the principle of equality of spouses.
Article 5 of Protocol No. 7 provides:
“Spouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relations with their children, as to marriage, during marriage and in the event of its dissolution. This Article shall not prevent States from taking such measures as are necessary in the interests of the children.”
55. The Court finds nothing in the authorities’ conduct with respect to the applicant’s access rights capable of disclosing any appearance of a breach of her rights specified by that provision.
56. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy