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FOURTH
SECTION
DECISION
Application no. 34931/08
Izabela DOBRZYŃSKA
against Poland
The
European Court of Human Rights (Fourth Section), sitting on 3 April
2012 as a Chamber composed of:
David
Thór Björgvinsson,
President,
Lech
Garlicki,
Päivi
Hirvelä,
George
Nicolaou,
Ledi
Bianku,
Nebojša
Vučinić,
Vincent
A. De Gaetano,
judges,
and
Fatoş Aracı, Deputy Section Registrar,
Having regard to
the above application lodged on 11 July 2008,
Having
regard to the observations submitted by the respondent Government and
the observations in reply submitted by the applicant,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Ms Izabela Dobrzyńska, is a Polish national who was
born in 1969 and lives in Warszawa. She is represented before the
Court by Mr G. Zawada, a lawyer practising in Warszawa.
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- On 10 November 2004 the Warsaw Regional Court gave a
judgment in divorce proceedings. It held that both parents of twins
M. and M., born in 1999, were to retain parental rights over them,
with their place of permanent residence being with their mother, the
applicant. Having regard to the lack of co operation between the
parents, it restricted both of them in the exercise of their parental
rights and decided that they should be supervised by a
court-appointed guardian. The guardian was to report to the court
once a month on the exercise of the parties’ parental rights
and on the situation of the family. This judgment was later upheld by
the Warsaw Court of Appeal.
- On
16 May 2007 the Warsaw Regional Court, upon a petition submitted by
the children’s father, changed the manner in which the parties’
parental rights should be exercised.
- The
court established that since 2002 the children, who before had had a
harmonious and spontaneous relationship with their father, had
started to react negatively and even hysterically to his presence.
- The
court had regard to three expert opinions. They had stated that the
children and their mother as a family had been affected by Gardner
syndrome (Parental Alienation Syndrome), consisting in a strong
emotional link with one of the parents, in this case – the
mother. This entailed the children’s complete submission to
her, and in their perceiving the father, as a result of the mother’s
hammering this into her daughters, as an enemy. This resulted in a
total severance of all emotional links with him.
- The
court heard as witnesses a number of experts, two of the children’s
teachers, a psychologist who had talked with the mother for the
purposes of making a diagnosis of the situation and a number of other
persons.
- It
refused to admit evidence from psychologist B., proposed by the
applicant, and refused also her request for additional expert
opinions of another psychologist, paediatrician and psychiatrist. The
court found that ample expert evidence was already available in the
case file.
- The
court accepted the conclusion that the family was affected by Gardner
(PAS) syndrome, caused mostly by the applicant’s emotional
pressure on the children in order to make them perceive their father
in a negative light. There was no evidence to indicate that the
children’s father had committed any reprehensible acts and the
children had not accused him of any. In particular, no incidents of
domestic violence had been established. He was interested in the
children’s development, co operated with the authorities
and had been complying with the court’s decisions on contact
with the children and the court guardian’s suggestions. The
children were deeply disturbed. They were overly excitable and often
aggressive, verbally denigrated their father and their paternal
grandparents, referred to alleged episodes of ill treatment
which had never been confirmed and of which they had received
information from their mother, showed undue fear and reacted
hysterically when spoken to about their father and when seeing him.
- The
court was of the view that the children’s best interest
dictated that they should be given appropriate treatment. The
applicant was unable to draw a line between her own negative view of
her former husband and the conduct which she should have adopted in
the children’s best interests. Her behaviour was dictated
entirely by her own emotional relationship to her former husband,
with no due regard to the need to show restraint for the sake of the
children’s development, well being and psychological
balance. The court noted that it was well aware of the necessity of
keeping the measures to be applied within limits, having regard to
the proportionality principle. It was of the view that the children
should be placed in a children’s home and temporarily change
their environment. The applicant should be allowed to see her
children in the home, supervised by psychologists, and ordered to
undergo therapy suitable for persons affected by PASyndrome. The same
obligation had to be imposed on the children’s father.
- The
applicant appealed. She requested that the decision be quashed in its
part concerning the placement of her children in the institution. She
submitted that the measures were not in the children’s best
interests. The court had failed to examine whether less invasive
measures would also have achieved the aim sought.
- By
a decision of 14 January 2008 the Warsaw Court of Appeal amended the
contested decision. It deleted the description of an alleged disorder
affecting the applicant and her daughters from the description of the
facts of the case. It observed that the opinions of specialists had
not given rise to any doubt that the children were indeed deeply
disturbed and that their separation from the mother, together with
therapy, would help them. It maintained the order to place the
children in a children’s home with a view to therapy and
maintained the obligation for the parents to undergo therapy aimed at
ameliorating their contacts, due regard being had to the children’s
best interests.
- The
court observed that already in the divorce judgment the court, having
regard to the conflict between the former spouses, had imposed on the
latter supervision measures intended to facilitate their contacts and
to ensure respect for the children’s best interests. As the
parties had subsequently failed to co-operate and their relationship
had steadily deteriorated to the point where they were unable to
ensure compliance with the custody and access arrangements without
acrimony, the decision of the lower court was justified and should be
upheld.
- On
8 April 2008 the Warsaw District Court, acting ex officio, set
aside the placement order of 16 May 2007.
- Subsequently,
the applicant and the children’s father had a number of
conversations with the assistance of specialists of the Centre of
Assistance to the Family. The court was informed of them.
- On
20 May 2008 the court decided again to place the children in a
children’s home.
- On
24 July 2008 the court granted the applicant’s request to stay
the execution of that order. It appointed another expert with a view
to determining the best possible therapy for the children. The court
fixed five dates for the applicant and the children for therapy
sessions. The applicant failed to attend these sessions without
providing any justification.
- On
15 July 2010 and 24 September 2010 the applicant contested the
appointment of the expert. The court dismissed her motion.
- On
the latter date the court set the placement order aside and appointed
a court guardian for the family. The court had regard to the
children’s health and found that the placement could have a
negative effect on their health.
COMPLAINT
- The
applicant complained, in essence under Article 8 of the
Convention, about the placement order. She argued that it had been
unnecessary and excessive; that it would expose the children to
unnecessary hardship; that they suffered from asthma and that it
would be impossible for them to obtain adequate medical care in the
institution and that the applicant and her children’s right to
respect for their family life had been violated by this decision.
ITMarkFactsComplaintsEndTHE
LAW
- The
applicant complained that the placement order given in respect of her
daughters breached Article 8 of the Convention, which in so far as
relevant provides as follows:
“1. Everyone has the right to respect
for his private and family life ...
- 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.”
- The Government submitted that the applicant could not
claim to be the victim of the alleged breach of the Convention. The
order regarding the children’s placement had never been
executed. In its decision of 24 September 2010 the Warsaw
District Court set that order aside.
- The
applicant disagreed.
- The
Court recalls that under Article 34 of the Convention it may receive
applications from individuals and others “claiming to be the
victim of a violation by one of the High Contracting Parties of the
rights set forth in the Convention or the protocols thereto”.
The existence of a victim who was personally affected by an alleged
violation of a Convention right is indispensable for putting the
protection mechanism of the Convention into motion (see, for example,
Buckley v. the United Kingdom, judgment of
25 September 1996, Reports of Judgments and Decisions
1996-IV, p. 1288, §§ 56-59, Valmont v. the
United Kingdom (dec.), no. 36385/97, decision of 23 March
1999, and Thevenon v. France (dec.), no. 2476/02,
28 February 2006).
- Moreover,
the Court recalls that Article 34 of the Convention requires that an
individual applicant should be able to claim to be actually affected
by the measure of which he or she complains (Slivková
v. Slovakia (dec.), no. 32872/03, 14 December 2004;
Ichin and others v. Ukraine
(nos. 28189/04 and 28192/04), §
26, mutatis mutandis;
21 December 2010).
- In
the present case the crux of the applicant’s complaint is about
the alleged breach of Article 8 of the Convention as a result of the
order concerning the placement of her daughters in a children’s
home.
- However,
the Court observes that the initial order, given on 16 May 2007,
was never executed. It was subsequently set aside on 28 April
2008 by the Warsaw District Court acting ex officio.
Subsequently,
on 20 May 2008 that court again gave an order on the children’s
placement, but on 25 July 2008 it granted the applicant’s
request to stay its execution.
- Ultimately,
by a decision of 24 September 2010, the Warsaw District Court set
that order aside, finding that the placement would be detrimental to
the children’s health. That order is no longer in force.
Moreover, at no time were the children taken away from the applicant
and placed in a children’s home.
- Accordingly, the Court considers that the applicant
cannot claim to be a victim within the meaning of Article 34 of
the Convention.
- It
concludes that the application is therefore incompatible ratione
personae with the provisions of the Convention 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.
Fatoş
Aracı David Thór Björgvinsson
Deputy
Registrar President
