P.K. v. POLAND - 43123/10 - Chamber Judgment [2014] ECHR 597 (10 June 2014)

In the case of P.K. v. Poland,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

          Ineta Ziemele, President,
          Päivi Hirvelä,
          Ledi Bianku,
          Nona Tsotsoria,
          Paul Mahoney,
          Krzysztof Wojtyczek,
          Faris Vehabović, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 20 May 2014,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 43123/10) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr P.K. (“the applicant”), on 19 July 2010.

2. The applicant, who had been granted legal aid, was represented by Mr P. Sendecki, a lawyer practising in Lublin. The Polish Government (“the Government”) were represented by their Agent, Mrs J. Chrzanowska of the Ministry of Foreign Affairs.

3. The applicant alleged that the Polish authorities had failed to take effective steps to enforce his right of contact with his son, which had violated his rights under Article 8 of the Convention.

4. On 21 January 2013 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). Furthermore it was decided on 20 May 2014 to grant the applicant ex officio anonymity under Rule 47 § 4 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1978 and lives in Bychawa.

A. The divorce and access proceedings

6. The applicant was married in 1999. In 2001 his wife gave birth to P.

7. In December 2001 the applicant filed for divorce with the Lublin Regional Court. In his petition he requested that the child should reside with his mother and that she should be given custody. He submitted that he was not P.’s biological father.

8. At the same time the applicant instituted a separate set of proceedings challenging his paternity in respect of P. In a subsequent decision his claim was dismissed as it had been established by DNA tests that the applicant was in fact the boy’s father.

9. On 6 May 2002 the applicant requested the court conducting the divorce proceedings to give him custody of the child, to rule that the child’s place of residence should be with him, and that the mother should be divested of her parental rights. The Government submitted that he had further requested that the child be placed in a public care institution. The applicant contested this. He argued that his intentions had been misconstrued.

10. On 28 October 2003 the court dissolved the applicant’s marriage. It found that both parties had been at fault in the breakdown of the marital relationship. It held that parental authority was to be exercised by both parents, and stipulated that the place of residence of P. was to be with the boy’s mother. The applicant was allowed to visit the child at his mother’s address and in her presence on every third Sunday of the month between 10 a.m. and noon.

11. In the written grounds of the judgment the court observed that the applicant’s conduct was open to criticism. It referred to the unsuccessful paternity challenge he had brought before the courts and expressed the view that he was not really interested in maintaining meaningful contact with his son.

12. The applicant appealed. On 18 May 2004 the Lublin Court of Appeal dismissed his appeal. The divorce judgment became final.

B. The enforcement of the access arrangements

13. Subsequently difficulties arose as to compliance with the access order, as the mother persistently refused to respect it.

14. On 25 September 2006 the applicant instituted proceedings seeking to have the access arrangements specified by the divorce judgment enforced. On 29 November 2006 the court questioned him in connection with these proceedings. He did not remember when he had last seen his son.

15. The mother was questioned on 17 January 2007. She told the court that the applicant had come to see his son for the first time in 2006, just after she had requested an increase in the amount of the monthly maintenance payments. She was of the view that the applicant was not interested in the child.

16. By a decision of 28 June 2007 the Lublin District Court fixed a one-month time-limit for the child’s mother to allow the applicant contact with P. on the terms stipulated by the divorce judgment. It held that she was to pay a fine of 600 Polish zlotys (PLN) in the event of continued failure on her part to comply with the access arrangements.

17. In July 2007 the applicant again requested the court to take measures to oblige the mother to cooperate and allow him contact with his child. On 25 September 2007 the Lublin District Court refused to grant the applicant an exemption from the obligation to pay court fees in respect of this request.

18. In October 2007 the applicant complained to the Lublin District Prosecutor about the mother’s conduct. He was informed in reply that issues of compliance with decisions of civil courts did not fall within the jurisdiction of the prosecuting authorities.

19. On 17 December 2007 the Lublin District Court imposed a fine on the mother in the amount of PLN 600 for her failure to allow the applicant contact with P., and set another one-month time-limit for her to comply with that order on pain of a fine in the amount of PLN 700.

20. On a further complaint by the applicant, by a decision of 9 April 2008 the same court ordered the mother to pay the fine of PLN 700 and set another one-month time-limit for her to comply with the access arrangements on pain of a further fine of PLN 800.

21. On 1 July 2008 the Lublin District Court appointed a court guardian (kurator) to supervise the execution of the access arrangements determined by the divorce judgment. It held that the guardian should accompany the applicant on each and every visit to his child under the schedule determined by that judgment.

22. On 26 August 2008 P.’s mother requested the court to restrict the applicant’s parental authority and to change the access arrangements by banning the applicant from contact with his son.

23. On 17 September 2008 the court ordered the mother to pay a fine of PLN 800 for her continued refusals to allow the child to see his father and set a new one-month time-limit for her on pain of a further fine in the amount of PLN 1,300.

24. On 22 September 2008 the applicant requested the court to rule that the child should move to his home and for the mother to be granted access rights.

25. On 25 September 2008 the court refused to examine the applicant’s new request for a fine to be imposed on the mother, having regard to its decision of 17 September 2008 (see paragraph 23 above).

26. On 21 December 2008 the Lublin District Court dismissed the applicant’s request of 23 September 2008 (see paragraph 25 above), finding that the child had good living conditions at his mother’s home and felt safe with her. The applicant did not appeal against this decision.

27. On 12 February, 5 March, 16 April and 10 December 2008 the applicant requested the Lublin District Court to take more vigorous enforcement measures. He submitted that he could not see his son and that the measures applied so far had failed.

28. On 26 January 2009 P.’s mother requested the Lublin District Court to divest the applicant of parental authority. She submitted that the applicant had for many years not been interested in the child and that the child was afraid of him as he had provoked a brawl at the school.

29. On 1 July 2009 the Lublin District Court authorised the court-appointed guardian to take the child from the mother to ensure compliance with the access arrangements so that his father could see him.

30. On 16 August 2009 the court-appointed guardian went with the applicant to the mother’s apartment to visit the child. No one answered the door. On 18 August 2009 the guardian complained to the prosecuting authorities about her failure to cooperate.

31. In September 2009 the applicant again requested the court to take more vigorous measures to ensure that he had effective enjoyment of his access rights. In reply on 16 September 2009 the Lublin District Court informed the applicant that the enforcement order of 1 July 2009 remained valid and that it was operational in respect of every new attempt he made to see his son.

32. On 20 September and 18 October 2009 the court-appointed guardian attended at the scheduled times to assist the applicant for the purposes of his monthly visits to see his son but the applicant failed to turn up for the visits.

33. On 28 October 2009 the applicant informed the court that on 16 August 2009 the court guardian had gone with him to the mother’s apartment. She had refused to open the door or let him see the child. The applicant submitted that the guardian had remained passive in the face of the mother’s defiance. Afterwards, the head of the court-appointed guardians had informed the applicant that no new attempts to assist him in seeing his son would be made, as the previous attempt had failed. He had also informed the applicant that he regarded his case as closed and that he had forwarded the case file to the court.

34. On 8 October 2009 the same court refused to hear a request by the applicant for enforcement of his access rights, referring to the valid decision given on 1 July 2008 (see paragraph 22 above). An identical decision was given by the same court on 12 January 2010 in respect of a fresh request by the applicant for assistance in the execution of the access arrangements. On 21 December the Lublin District Court refused to amend the access arrangements by deciding that the applicant’s son should live with him.

35. On 17 January 2010 the guardian accompanied the applicant. Again, no one answered the door to the mother’s apartment. The guardian called the police. They attended, but their intervention was to no avail as no one answered the door. The guardian again informed the prosecuting authorities about the mother’s conduct.

36. On 20 January 2010 the applicant made a new request for assistance.

37. On 29 March 2010 the court made a new enforcement order, identical to that of 1 July 2008 (see paragraph 22 above). In the written grounds for this order the court emphasised the mother’s uncooperative behaviour in respect of the access arrangements, and stated that the execution of the access arrangements necessitated close cooperation on the part of both parents, who were obliged to act in the child’s best interest.

38. On 6 April and 21 April 2010 the applicant again requested the court to assist him. On 18 April 2010 he failed to turn up for another visit, scheduled on that date. On 16 May 2010 the mother did not answer the door when the applicant, assisted by the court guardian, came to see the boy. The guardian again informed the prosecution about her obstructive behaviour.

39. On 20 June 2010 the mother again failed to open the door to the applicant, accompanied by the guardian and ultimately by the police.

40. On 29 June 2010 the applicant again requested the court to assist him. In reply, the court asked him whether his request was to be understood as a new request for assistance by court-appointed guardians in the execution of the access arrangements. The applicant replied that he had simply sought the court’s advice as to how he could deal with his situation, which remained unchanged as the mother remained uncooperative.

41. On 29 June 2010 the guardian determined that the enforcement proceedings in respect of the order of 29 March 2010 were to be closed, as the three-month period of validity of that period specified in Article 598.12 (a) of the Code of Civil Procedure had expired.

42. In July 2010 the applicant twice complained to the District Prosecutor about his situation.

43. On 18 July 2010 the applicant again sought unsuccessfully to see his son. The court-appointed guardian was not present, apparently because the applicant had failed to lodge a new request with the court for his assistance and the previous execution order had expired (see paragraph 41 before). The applicant called the police. They attended, but he did not succeed in seeing his son, because the police officers refused to assist him, having regard to the fact that the child was not at home at that time. The applicant requested that criminal proceedings be instituted against them on charges of abuse of official authority. His complaint was subsequently investigated. The internal enquiry was closed on 16 September 2009 as the officers’ conduct had not been aggressive or inappropriate. Subsequently, on 15 November 2010 the Lubartów District Prosecutor discontinued the investigation against the officers, having noted, inter alia, that the applicant’s son had not been at home on the material date.

44. On 19 and 26 July 2010, respectively, the applicant again requested the court and the court guardian to assist him in the enforcement of the access arrangements. He reiterated his request on 25 August 2010. In reply, on 4 October 2010 the court issued another order authorising the guardian to assist the applicant in the execution of the access arrangements with a view to addressing the mother’s defiance.

45. On 15 November 2010 the Lublin District Court dismissed the mother’s application for the applicant to be deprived of parental rights. It further amended the access arrangements specified in the divorce judgment. It limited the mother’s parental authority by assigning a guardian to supervise her in the exercise of her parental rights. The court further ordered the mother to attend family therapy in order to improve her communication with the child’s father.

46. In the written grounds of that decision the court noted that between 2001 and 2006 the applicant had shown no interest in his son and had failed to pay maintenance in the amount of PLN 270 per month. The mother had requested the bailiff to institute enforcement proceedings in respect of the maintenance. This decision became final on 23 December 2010.

47. On 21 November 2010 the guardian failed to attend to assist the applicant, as she was ill. On 19 December 2010 the applicant went to see his son accompanied by the guardian but no one answered the door. The guardian informed the prosecutor about the mother’s behaviour.

48. On 27 December 2010 the applicant again requested the court to ensure the mother’s compliance with the access arrangements, and requested the court to assist him.

49. On 4 January 2011 the guardian discontinued the enforcement proceedings, referring to the provisions of Article 598.12 (a) of the Code of Civil Procedure.

50. On 14 March 2011 the court again ordered a court guardian to take the child from the mother to ensure compliance with access arrangements.

51. On 17 April and 15 May 2011 the guardian accompanied the applicant to the visits planned for these dates. No one answered the door and the guardian informed the prosecutor about the mother’s conduct.

52. On 6 July and 9 November 2011 the Lublin District Court gave new decisions authorising the guardian to take the child from the mother to ensure compliance with the access arrangement on terms specified in those arrangements.

On 17 July 2011 the applicant requested the court to divest the mother of her parental rights, referring to her persistent refusal to respect the access arrangements. The Lublin District Court requested an assessment by the RODK (Regional Family Consultation Centre) of the family’s emotional skills and their communication and parenting situation.

In August, September and October 2011 the applicant again complained to the court about the mother’s failure to respect the access arrangements. On 21 December 2011 the court refused to impose a fine on her, having regard to the amendments to the Code of Civil Procedure which had entered into force in August 2011.

53. On 11 January 2012 the Lublin District Court imposed on the mother an obligation to pay PLN 1,000 to the applicant in punitive damages for each failure to comply with the access arrangements.

54. On 28 February 2012 the Regional Family Consultation Centre submitted its opinion to the court about the emotional ties between the mother, the father and the child, prepared for the purposes of the proceedings in which the applicant had requested the court to envisage that the mother be divested of her parental rights. The experts were of the view that the child’s father was focused on the enforcement of his rights. He was not taking into account the needs and expectations of his child. The experts pointed out the negative consequences for the child’s development of the father’s actions aiming at depriving the child’s mother of parental authority. They stressed the existence of strong emotional ties between the child and the mother and the lack of such ties between the father and his son. They noted the lack of willingness and readiness of the child to maintain contact with his father. The experts noted that the father had taken various steps to deprive the child’s mother of parental authority without taking the child’s feelings into consideration.

On 16 April, 25 May and 9 July 2012 the applicant requested the Lublin Zachód District Court to order the mother to pay damages to him for her failure to respect the access arrangements. He subsequently withdrew the first request. The second was rejected for his failure to comply with the applicable legal requirements. Subsequently, the applicant supplemented his request of 9 July 2012 by referring to the mother’s failure to let him see his son during his monthly attempts to see his son in July, August, September and October 2012.

55. During the applicant’s visit in September 2012, P. asked his father to leave the apartment and told him that he was not wanted and not liked there.

56. The Government submitted that on 8 October 2012, during a hearing before the Lublin District Court, the applicant had stated that he had seen his son at the child’s mother’s residence in June, September and October 2012. The applicant contested this statement, arguing that he had seen his son only for several minutes on each occasion.

57. On 5 December 2012 the Lublin District Court, in reply to the applicant’s request of 9 July 2012, ordered the mother to pay PLN 2,100 to the applicant, consisting of PLN 300 for each previous failure to comply with the contact arrangements. The court pointed out that she had prevented the father from having contact with his son four times (in April, May, July and August 2012) and obstructed contact three times (in June, September and October 2012). The applicant appealed. Following his appeal, on an unspecified later date the court amended its own decision and imposed on the mother an obligation to pay PLN 7,000 to the applicant in damages for her failure to comply with his access rights (PLN 1,000 for each occasion of non-compliance).

C. The criminal proceedings

58. On numerous occasions the applicant and later also the court-appointed guardian, acting on the basis of Article 598.11 of the Code of Civil Procedure, repeatedly informed the Lublin District Prosecutor about the child’s mother’s obstructive behaviour and about her non-compliance with the access arrangements.

59. On 28 June 2006, 9 November 2009 the Lublin police and on 23 March and 30 September 2010, 3 March 2011 and 13 January 2012 the Lublin District Prosecutor discontinued the investigation, finding that the mother had no case to answer, as her failure to answer the door and allow the applicant to see his son did not amount to a criminal offence of unlawful restriction of liberty of a minor (brak znamion czynu zabronionego). The refusals were upheld by the competent court on, inter alia, 7 December 2010 and 26 January 2012.

60. On 27 May 2011 the Lublin District Prosecutor brought a bill of indictment before the Lublin - Zachód District Court against the mother on charges of unlawful restriction of liberty against a minor. On 23 September 2011 the Lublin District Court discontinued the proceedings, holding that a parent who exercised her or his parental authority could not be regarded as a perpetrator of an offence of unlawful detention of a minor under 15 years of age, even if that parent was acting contrary to the wishes or without the consent of the other parent.

II. RELEVANT DOMESTIC LAW AND PRACTICE

61. The relevant domestic law concerning the enforcement of a parent’s visiting rights in force prior to 13 August 2011 is set out in the Court’s judgment in the case of P.P. v. Poland, no. 8677/03, §§ 69-74, 8 January 2008.

62. In particular, if a court obliged a parent with custody to ensure contact for a child with the other parent, Article 1050 of the Code of Civil Procedure was applicable to the enforcement of this obligation. This article provided:

“1. If a debtor is obliged to take measures which cannot be taken by any other person, the court in whose district the enforcement proceedings were instituted, at the request of a creditor and after hearing the parties, shall set a time-limit within which the debtor must comply with his obligation, on pain of a fine ....

2. If the debtor fails to comply with this obligation, further time-limits may be set and further fines may be imposed by a court.”

63. 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 or psychological harm. The bailiff shall request the assistance of social services, or another institution tasked with this, or a court expert.”

64. In particular, under the Supreme Court resolution, if a parent who was obliged by a court decision to respect the other parent’s contact rights refused to comply with that decision, contact decisions were liable to enforcement proceedings. The provisions of the Code of Civil Procedure on enforcement of non-pecuniary obligations were applicable to enforcement of court decisions on parental rights or contact rights (resolution of the Supreme Court of 30 January 1976, III CZP 94/75, OSNCP 1976 7-8).

65. Under the provisions of the Code of Civil Procedure as they stand after 13 August 2011, the court decision on access arrangements shall serve as an enforceable title for a request to a court to impose punitive damages on the party refusing to comply with these arrangements in respect of each and every failure to do so, to be paid to the entitled parent.

THE LAW

ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

66. The applicant complained that the Polish authorities had failed to take effective steps to enforce his right of contact with his son as stipulated in the access decisions. He alleged a violation of Article 8 of the Convention, the relevant part of which provides:

“1. Everyone has the right to respect for his 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.”

A. Admissibility

67. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

68. The applicant submitted that the authorities had failed to take necessary steps in order to facilitate his contact with his son. The measures actually taken had been both inadequate and insufficient. None had led to an actual improvement in the applicant’s family situation. The failure to act properly had resulted in irreparable harm to the child’s emotional growth.

69. The applicant had been profoundly interested in exercising his custody rights with due regard being had to the child’s interests. He had decided to take legal action only after the mother had categorically deprived him of all contact with the boy. Between 2001 and 2006 the applicant had repeatedly requested the police to assist him, but no assistance was forthcoming. Having no other choice, he had gone to court. It was irrelevant for the assessment of the case that the applicant had tried to challenge his paternity, as that issue related only to the relations between the spouses.

70. The applicant contested the Government’s submission that he had requested that his son be placed in public care. He averred that such a negative statement was unfair to him. He had not requested that the child be placed in an institution, but only that the child be put permanently in his care. The placement in an institution to which he had referred was to be only of a transitional character and was exclusively to serve the purposes of making it easier for the child to adjust to his changed circumstances and to the transition from the care of his mother to that of his father, with the assistance of childcare professionals available in a public care institution. The applicant had only had the welfare of his son in mind. The Government’s insinuation that he had wanted to get rid of his child was unwarranted.

71. It was further averred that the mother’s reprehensible conduct had interfered with the child’s interests and development. The court’s conduct had been slow and ineffectual. Fines imposed on her had been far too lenient and had been imposed too rarely. They had not provided any incentive for her to mend her ways. The three occasions in June, September and October 2012 when the applicant had seen his son had no relevance to the case, as they had been chance meetings - one on the staircase of the building where the child lived and another in the street - and not visits carried out in compliance with the contact orders.

72. The applicant argued that the court-appointed guardian had been active but completely ineffective. Her actions had been limited to knocking on the mother’s door and then calling the police when she refused to open it. No other actions aimed at achieving a positive solution had been taken, such as talking to the mother in the applicant’s absence. The guardian had failed to comprehend the situation and to address it properly. Ultimately, the contact order had remained unenforced. This failure could not be justified by the child’s negative attitude towards his father. It was to be expected in the circumstances that the child, manipulated by his mother and in the absence of any contact with his father, had over time developed a hostile attitude towards the latter. He had suffered great damage thereby. The applicant referred to the Court’s judgment in the case of Z. v. Poland, no. 34694/06, 20 April 2010, and stressed that the circumstances of that case, in which a violation of Article 8 had been found, were similar to the instant case.

73. The Government submitted that between 2001, the date of separation from the child’s mother, and 2006, the applicant had not shown any interest in his son. Throughout this period he had not sought to have contact with the child. During the divorce proceedings he had tried to challenge his paternity. This allegation had been proved groundless. He had also requested that the mother be divested of her parental rights and for the child to be placed in public care. The applicant had reiterated this request in the context of contact proceedings. He had started to seek contact with the child only in 2006, just after the mother had requested that the maintenance allowance for the child be increased.

74. The relationship between the applicant and his son had not had an opportunity to develop normally, because of the father’s absence during the first years of the child’s life and the applicant’s hostility towards the mother. The lack of emotional ties between the child and the father had been confirmed by the experts assigned to the access case (see paragraph 57 above). The Government emphasised that the applicant’s conduct towards his son and the child’s mother had to be taken into consideration in the examination of the case.

75. As regards the State’s conduct, the Government was of the view that it had been both swift and diligent. The domestic courts had appointed a guardian to supervise the execution of the access order. They also ordered an expert opinion with a view to establishing the applicant’s and the mother’s parental skills, the existence of the emotional ties between the child and the parents and to indicate the best contact arrangements between the applicant and the child. Moreover, they had obliged the mother to attend a training course aimed at improving her communication with the child’s father.

76. Importantly, the courts frequently imposed fines on the child’s mother for her failure to respect the access arrangements. The Government further averred that in August 2011 amended provisions of the Family and Custody Code had entered into force. Under these provisions, the fines were no longer to be paid to the State Treasury, but directly to the parent entitled to have contact with a child. After the domestic court had imposed fines on the mother on the basis of the amended provisions, the mother had ceased to prevent the applicant from seeing his son. He was able to see the child in June, September and October 2012.

77. The Government argued that the guardian had been very active and had repeatedly encouraged the parents to be more cooperative. On ten occasions the guardian accompanied the applicant to his visits, asked the police for assistance in the face of the mother’s refusal to open the door, and informed the prosecuting authorities of the mother’s obstructive conduct. The police had intervened in the case on twenty occasions: on fifteen occasions at the applicant’s request, three times in response to the guardian’s request, and twice at the request of the child’s mother. Polish law did not authorise the police to use force to enter the apartment of a non-cooperative custodial parent.

78. The Government emphasised that the conflict between the applicant and his son’s mother had made it particularly difficult for the domestic authorities to act to enforce the applicant’s access rights. However, the domestic courts had been well aware of the animosity between the parents and had taken every possible step to ensure that there was contact between the applicant and his son. Contact had finally been made possible in 2012. During a hearing held in another set of contact proceedings, on 8 October 2012, the applicant had stated that he had seen his son in June, September and October 2012. The later difficulties in arranging and maintaining regular contact also had their origins in the child’s own attitude. In September 2012 the child had told his father to leave the apartment as he was not wanted or liked there.

79. The Government concluded that the Polish authorities had not failed to discharge their positive obligation to secure for the applicant the effective exercise of his right to respect for his family life.

2. The Court’s assessment

80. The relationship between the applicant and his son amounted to “family life” within the meaning of Article 8 § 1 of the Convention. This has not been disputed.

81. The mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of “family life” within the meaning of Article 8 of the Convention (see, among many other authorities, Monory v. Romania and Hungary, no. 71099/01, 5 April 2005, § 70, and Vojnity v. Hungary, no. 29617/07, § 28, 12 February 2013).

82. The essential object of Article 8 is to protect the individual against arbitrary interference by public authorities. There may however be positive obligations inherent in an effective “respect” for family life. These obligations may involve the adoption of measures designed to secure respect for family life even in the sphere of relations between individuals, including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals’ rights and the implementation, where appropriate, of specific steps (see, amongst other authorities, X and Y v. the Netherlands, 26 March 1985, § 23, Series A no. 91, and Zawadka v. Poland, no. 48542/99, § 53, 23 June 2005). In both the negative and positive contexts, regard must be had to the fair balance which has to be struck between the competing interests of the individual and the community, including other concerned third parties, and the State’s margin of appreciation (see, amongst other authorities, Keegan v. Ireland, 26 May 1994, § 49, Series A no. 290, and Siemianowski v. Poland, no. 45972/99, § 97, 6 September 2005). In doing so, the Court will also take into consideration the general interest in ensuring respect for the rule of law (see also D. v. Poland (dec.), no. 8215/02, 14 March 2006, and Cristescu v. Romania, no. 13589/07, § 61, 10 January 2012).

83. The Court has repeatedly held that in matters relating to child custody the interests of the child are of paramount importance. The child’s best interests must be the primary consideration (see, to that effect, Gnahoré v. France, no. 40031/98, § 59, ECHR 2000-IX) and may, depending on their nature and seriousness, override those of the parents (see Sahin v. Germany [GC], no. 30943/96, § 66, ECHR 2003-VIII). In particular, a parent cannot be entitled under Article 8 of the Convention to have measures taken which would harm the child’s health and development (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 169, ECHR 2000-VIII, and P., C. and S. v. the United Kingdom, no. 56547/00, § 117, ECHR 2002-VI).

84. Where the measures in issue concern disputes between parents over their children, however, the Court’s role is not to substitute itself for the competent domestic authorities in regulating contact questions, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation. In so doing, it must determine whether the reasons purporting to justify any measures taken with regard to an applicant’s enjoyment of his right to respect for family life are relevant and sufficient (see, amongst other authorities, Olsson v. Sweden, 24 March 1988, § 68, Series A no. 130, and Wojciech Nowak v. Poland, no. 11118/06, § 45, 8 June 2010).

85. The Court’s case-law has consistently held that Article 8 includes the right for a parent to have measures taken with a view to his or her being reunited with the child, and an obligation on the national authorities to take such measures. This applies not only to cases dealing with the compulsory taking of children into public care and the implementation of care measures (see, inter alia, Olsson v. Sweden (no. 2), 27 November 1992, § 90, Series A no. 250), but also to cases where contact and residence disputes concerning children arise between parents and/or other members of the children’s family (see, for example, Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299).

86. The obligation of the national authorities to take measures to facilitate contact by a non-custodial parent with children after divorce is not, however, absolute (see, mutatis mutandis, Hokkanen, cited above, § 58). The key consideration is whether those authorities have taken all such necessary steps to facilitate contact as can reasonably be demanded in the particular circumstances of each case (see, mutatis mutandis, Hokkanen, cited above, § 58). Other important factors to be taken into account in proceedings concerning children are that time takes on a particular significance, as there is always a danger that any procedural delay will result in the de facto determination of the issue before the court and that the decision-making procedure should provide the requisite protection of parental interests (see W. v. the United Kingdom, 8 July 1987, §§ 62-64, Series A no. 121, and Płaza v. Poland, no. 18830/07, § 74, 25 January 2011). In relation to the State’s obligation to take positive measures, the Court has held that in cases concerning the implementation of the contact rights of one of the parents, Article 8 includes a parent’s right to the taking of measures with a view to his being reunited with his child and an obligation on the national authorities to facilitate such reunion, in so far as the interest of the child dictates that everything must be done to preserve personal relations and, if and when appropriate, to “rebuild” the family; the State’s obligation is not one of result, but one of means (see, among other authorities, Ignaccolo-Zenide v. Romania, no. 31679/96, § 94, ECHR 2000-I; Nuutinen v. Finland, no. 32842/96, § 127, ECHR 2000-VIII; Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299-A; Gnahoré v. France, no. 40031/98, § 59, ECHR 2000-IX and also Nistor v. Romania, no. 14565/05, §§ 70, 109, 2 November 2010; Cristescu v. Romania, no. 13589/07, § 57, 10 January 2012).

87. In the light of the above principles what is decisive in the present case is whether the Polish authorities took all the necessary steps to facilitate the enforcement of the contact arrangements as specified in the divorce decree. That decision authorised the applicant to visit the child at his mother’s address and in her presence on every third Sunday of the month between 10 a.m. and noon. The Court’s task is to consider whether the measures taken by the Polish authorities were adequate and effective, as could reasonably have been expected in the circumstances, to facilitate meetings between the applicant and his child.

88. The difficulties in arranging contact were in large measure due to the animosity between the applicant’s former wife and the applicant. The Court is mindful of the fact that child custody disputes by their very nature are extremely sensitive for all the parties concerned, and it is not necessarily an easy task for the domestic authorities to ensure execution of a court judgment in such a dispute where one or both parents’ behaviour is far from constructive. In the present case the conflict between the applicant and the child’s mother made it particularly difficult for the domestic authorities to act to fully enforce the applicant’s access rights.

89. The Court considers that the domestic authorities had an obligation to ensure enforcement of contact arrangements, since it is they who exercise public authority and have the means at their disposal to overcome problems obstructing execution. In this respect the Court notes that the applicant’s enforcement requests eventually led to the repeated imposition of fines on the child’s mother; in the amounts of, for example, PLN 600 on 17 December 2007, PLN 700 on 9 April 2008, and PLN 800 on 17 September 2008.

90. The courts imposed further fines on her, obliging her to comply with the access arrangements, and fixed time-limits for her to do so.

91. It is noted that on 1 July 2008 the court appointed a guardian and tasked her with supervising the execution of the access arrangements. Under this decision the guardian was obliged to accompany the applicant on each visit to the child under the schedule determined by that judgment. Subsequently the guardian accompanied the applicant on all his visits.

92. The courts repeatedly renewed the enforcement orders given following the applicant’s requests for assistance in obtaining contact with his son, and renewed the appointment of guardians supervising the execution of the contact orders.

93. The family court, in its decision of 15 November 2010, noted the difficulties which had arisen in the execution of the contact arrangements and, having regard thereto, limited the mother’s parental authority by assigning a guardian charged with supervising her in the exercise of her parental rights. It further ordered her to attend family therapy with a view to improving communication with the applicant.

94. After the amendments to the Code of Civil Procedure had entered into force in August 2011, the courts twice ordered her to pay damages to the applicant in respect for her failure to respect the access arrangements.

95. To sum up, it cannot be said that the authorities were idle in the performance of their duties.

96. Lastly, it is relevant for the assessment of the case that in the context of the divorce proceedings the applicant submitted that he was not P.’s biological father. He also unsuccessfully sought to challenge his paternity in a separate set of proceedings. Furthermore, the court established that between 2001 and 2006 the applicant had shown no interest in his son and that he had failed to pay maintenance for him in the amount of PLN 270 per month. No explanation for the applicant’s failure to comply with the maintenance obligation has been submitted to the Court.

97. The Court reiterates that it cannot substitute itself for the domestic authorities in the exercise of their responsibilities as regards parental authority. Its function, rather, is to review under the Convention the decisions taken by those authorities in the exercise of their margin of appreciation (see Kaleta v. Poland, no. 11375/02, § 58, 16 December 2008). In the instant case it cannot find that that margin was exceeded.

98. The foregoing considerations are sufficient to enable the Court to conclude that there has been no violation of Article 8 of the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been no violation of Article 8 of the Convention.

Done in English, and notified in writing on 10 June 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Ineta Ziemele
Deputy Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> P.K. v. POLAND - 43123/10 - Chamber Judgment [2014] ECHR 597 (10 June 2014) URL: http://www.bailii.org/eu/cases/ECHR/2014/597.html Cite as: [2014] ECHR 597