CASE OF P.F. v. POLAND
No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
5. The applicant was born in 1963 and lives in Warsaw. 6. The applicant and A.W. were in a relationship that started in May 2003. On 13 April 2004 their twin daughters were born (A. and J.). Subsequently, in February 2005, the applicant and A.W. separated. 7. On 2 November 2007 the applicant lodged a motion with the Warsaw Mokotów District Court (Sąd Rejonowy) for the establishment of contact and an interim contact order. 8. At the same time A.W. lodged a motion with the Warsaw District Prosecutor alleging that the applicant had sexually abused A. and J. On 8 January 2008 the prosecutor informed the Warsaw District Court about the allegations of sexual abuse. The court ordered a social enquiry report (wywiad środowiskowy) into the case, which was conducted on 9 February 2008. On 19 February 2008 the prosecutor instituted a criminal investigation into the allegations of sexual abuse. 9. On 21 January 2008 the Warsaw Mokotów District Court issued an interim contact order. Under the terms of that order, the applicant was allowed to visit the children every other Sunday between 10 a.m. and 2 p.m. 10. On 28 March 2008 the court stayed the custody proceedings as the criminal proceedings into the alleged sexual abuse were pending. 11. Meanwhile, on 15 June 2008 the Warsaw District Court of its own motion instituted proceedings concerning the limitation of the applicant’s custody rights. 12. During the course of the criminal proceedings, the prosecutor obtained two expert reports and heard a number of witnesses. On 31 October 2008 the prosecution discontinued the criminal proceedings into the allegations of sexual abuse on the grounds that there was not enough evidence that the alleged offences had been committed. The court-appointed expert established that A. and J. had not demonstrated the psychological symptoms of a sexually abused child. However, according to a private expert opinion provided by A.W., the facts of the case demonstrated that the children had been sexually abused. A.W. appealed against the decision to discontinue the proceedings. The prosecutor’s decision was upheld by the Warsaw Mokotów District Court. 13. On 20 January 2009 the Warsaw Mokotów District Court resumed the proceedings for the establishment of contact. At the same time it also resumed the proceedings for limitation of the applicant’s custody rights. 14. On 10 June 2009 the District Court modified the interim contact order, allowing the applicant to see his daughters every Saturday between 9 a.m and 6 p.m. in their home. The court also ordered A.W. to set a new time in case a Saturday visit was not possible. Both parties lodged interlocutory appeals. They were dismissed on 9 November 2009. 15. On 3 September 2009 the applicant submitted a report to the court indicating that the mother had failed to comply with the terms of the access arrangements. The applicant’s letter also contained a description of several visits that had taken place between May 2008 and August 2009. 16. On 23 December 2009 the mother applied for a change to the access arrangements. She asked the court to order visits every two weeks for four hours. 17. On 24 February 2010 the Warsaw Mokotów District Court again modified the interim contact order, allowing the applicant to visit his children every Saturday between 10 a.m. and 2 p.m. in their home. The court also ordered that the parents and children be examined by experts in the Regional Family Consultation Centre (Rodzinny ośrodek diagnostyczno-konsultacyjny) (“RODK”). The court also ordered a further expert opinion. 18. The meeting scheduled with RODK for June 2010 did not take place because the daughters were ill. The next meeting took place on 20 September 2010. According to the expert opinion, the daughters were drawn into the parents’ conflict by their mother. Both daughters sought contact with their father and wished to visit him in his home. The experts recommended therapy involving both parents and children. 19. The opinions of RODK and of the court’s expert were submitted to the court on 22 October 2010 and 7 February 2011. Following the change of the presiding judge, a hearing date was set for 2 March 2011. 20. Subsequently, the applicant applied for a change of the access arrangements. On 9 March 2011 the court issued yet another interim contact order and ruled that the applicant could meet his children every other Saturday and Sunday between 10 a.m. and 4 p.m. outside their home. The court considered that there was an emotional bond between the applicant and his daughters and in order to preserve it, it was important that the contact take place outside the children’s home. The court further referred to the expert opinion of W.B., who confirmed that A. and J. had not demonstrated symptoms of being victims of sexual abuse. However, the mother refused to comply with this order and lodged an appeal. On 25 July 2011 the Warsaw Regional Court upheld the first-instance decision. 21. Subsequently, A.W. cancelled most of the visits on the grounds that the children had been away and from 10 September 2011 she refused all visits. 22. On 7 October 2011 A.W. applied for modification of the access arrangements. Her motion was dismissed by the Warsaw Mokotów District Court on 24 October 2011. 23. During a hearing held on 11 October 2011, A.W. again applied for a change of access arrangements. She agreed to respect the interim order of 9 March 2011, however she made a request to the court that the contact should take place in the presence of the children’s babysitter or a court-appointed guardian. During that hearing the court heard evidence from the expert W.B., who confirmed that he did not consider that A. and J. demonstrated behaviour typical of children who had been sexually abused. He based his opinion on an analysis of the court files and a VHS recording of the children’s interview. 24. On 16 December 2011 the Warsaw Mokotów District Court gave a final decision in the case. It ordered that the applicant could meet his children every other Saturday and Sunday between 10 a.m. and 4 p.m. The visits would take place in the children’s home with the mother present and in the applicant’s home with the presence of a court-appointed guardian. The court considered that the applicant should be allowed to meet his daughters outside their home and without the mother’s presence since the girls needed contact with their father. However, the court also stressed that, because the applicant’s contact with his daughters had not been regular, he did not know much about them. The applicant appealed. 25. After February/March 2012, the applicant was again able to exercise his right of contact with his daughters on a weekly basis, every Saturday between 9 a.m. and 1 p.m. at A.W.’s home. 26. On 29 May 2012 the Warsaw Regional Court quashed the Warsaw District Court’s decision. The court held that the proceedings concerning the limitation of the applicant’s custody rights should not have been joined with the access proceedings. In addition, due to different requirements concerning the composition of the court in both cases, the District Court had sat in an incorrect formation and the proceedings were null and void. 27. At a hearing held on 30 November 2012 both the applicant and A.W. testified. The applicant submitted that after their separation in 2005 the contact with his children had been irregular. In September 2007 A.W. (who is an actress) had participated in a live TV show and the girls had stayed at the applicant’s home every Saturday and had been collected by their mother on Sunday morning. Once the TV shows were finished at the beginning of October 2007, the applicant had wished to continue this arrangement, however A.W. disagreed. Consequently he lodged his application with the District Court. He stressed that after the court had delivered its first interim order (see paragraph 9 above), many of the visits had not taken place since A.W. had been absent for the weekend. The applicant further submitted that the interim order of 9 March 2011 (see paragraph 20 above) had never been enforced because whenever he had come to collect the children either A.W. had not been at home or she had refused to open the door. Lastly, the applicant confirmed that between September 2011 and February 2012 he had not seen his children at all. Since March 2012 he had been visiting his daughters every Saturday for 4 hours at their home. The children’s mother A.W. confirmed to the District Court that between 2005 and September 2007 she had allowed the applicant to contact their daughters on many occasions. However, after she discovered that the applicant might have abused her daughter A., she had prohibited all contact. The contact had restarted in January 2008. She had never complied with the order of 9 March 2011 since she had been concerned about her daughters’ wellbeing. She further informed the court that she was planning to move to Gdansk with the daughters and her new partner. 28. On 3 December 2012 the Warsaw District Court gave its decision. The court ordered that the applicant could meet his children every other Saturday and Sunday between 10 a.m. and 4 p.m. The visits would take place outside the children’s home and without the presence of their mother. In addition, he could spend Christmas with them every odd year and Easter every even year and also parts of the summer and winter holidays. However, the applicant was only allowed to visit his daughters between 10 a.m. and 4 p.m. and they were not allowed to stay overnight at his home. 29. Both parties appealed. 30. The applicant instituted proceedings for enforcement of the interim contact orders and made several applications for fines to be imposed on A.W. under Article 1051 of the Code of Civil Procedure. 31. On 23 November 2009 the applicant lodged a motion for the imposition of a fine on A.W. for failure to comply with the access arrangements as specified in the interim contact order of 10 June 2009. 32. On 17 May 2010 the Warsaw Mokotów District Court ordered A.W. to enforce the interim contact order of 27 February 2010 within 30 days, on pain of payment of a fine of 500 Polish zlotys (PLN). The court established that initially the contact had taken place regularly, but this had been in accordance with the terms of the previous interim contact order of 21 January 2008 (every other Saturday from 10 am to 2 pm instead of every Saturday from 9 am to 6 pm). Such an arrangement had resulted from the interpretation given to A.W. by the lawyers from the Ombudsman’s Office, who informed her that the new interim contact order would be effective only once it had become final. The court further observed that the contact had been regular; most of the visits were shortened or cancelled by the applicant and not by the mother. Lastly, the court ordered the mother to comply with the interim order of 27 February 2010. 33. On 24 August 2010 the applicant lodged a motion for imposition of a fine on A.W. He submitted that she had failed to comply with the order of 17 May 2010. 34. On 15 March 2011 the Warsaw Mokotów District Court discontinued the enforcement proceedings. The court held that the interim contact order had been modified in the meantime (on 9 March 2011) and there was therefore no need to deliver a decision in the present set of proceedings. The applicant appealed, asking the court to impose a fine on A.W. His appeal was dismissed by the Warsaw Regional Court on 11 August 2011. The court repeated the reasons given by the District Court and held that the interim order of 10 June 2009 had been replaced by a new interim order of 9 March 2011. 35. In November 2012 the applicant lodged a new motion for the imposition of a fine on A.W. 36. On 4 January 2013 the court imposed a fine on A.W.