CASE OF WDOWIAK v. POLAND
No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life)
András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
5. The applicant was born in 1975 and lives in Tryszczyn. 6. On 2 December 2002 the applicant’s son J. was born. At that time the applicant lived with the boy’s mother, M.K., in a flat belonging to her parents. In 2003 the applicant moved out after a disagreement with M.K.’s father. 7. In 2005 the applicant filed a court complaint that M.K. was hindering his contact with his son. 8. On 2 December 2005 the parties reached a friendly settlement before the District Court detailing when the applicant was able to visit the child. It was agreed that the applicant could see J. on two Saturdays and two Sundays each month from 10 a.m. to 6 p.m., as long as the meetings had been arranged with M.K. the preceding week. The applicant could also take J. on holiday for two weeks during the summer. It was arranged that he would pick the child up from M.K.’s place of residence and take him back. 9. In 2006 the applicant’s meetings with his son were on some occasions made impossible by the mother, but most of them took place. A few of the visits were cancelled because the child was ill. 10. On 7 June 2006 M.K. applied to change the applicant’s access rights. M.K. wanted to reduce the amount of time the applicant could spend with J. She also indicated her intention to move to Germany with her son for financial reasons. 11. On 6 September 2006 the applicant applied to increase his access rights. He stated that M.K. had been interfering with his contact visits. 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 at Christmas or Easter from 10 a.m. to 10 a.m. the next day; and three weeks in the summer holidays and one week in the winter holidays. 12. At a hearing on 17 January 2007 M.K. withdrew her application and the Bydgoszcz District Court discontinued the proceedings. The applicant appealed, complaining that his application had still to be examined. 13. On 29 March 2007 the Bydgoszcz Regional Court quashed the Bydgoszcz District Court’s decision. The court considered that it had been a mistake to assume that the applicant had consented to the discontinuation of his application just because M.K. had chosen to withdraw hers. It was also established that the applicant’s access rights were not being respected at the time because M.K. had moved to Germany with the child. 14. On 16 January 2007 M.K. moved to Germany with the child without the applicant’s consent. The parties disagreed on whether or not M.K. had informed the applicant of their address in Germany (the applicant submitted that she had not). 15. The applicant initiated proceedings under the Hague Convention on the Civil Aspects of 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 because under the Hague Convention the mother had abducted the child. The court also noted that the applicant and M.K. had joint custody of J. under Polish law. 16. On 20 December 2007 the High Court in Celle dismissed an appeal by M.K. and ordered the return of the child to Poland. However, the court agreed that the child need not be handed over to the applicant. It stated that it would be enough to move back to Poland by the required date to comply with the court’s order. 17. 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. The mother and the child returned to Poland on 6 January 2008. 18. In January 2007 the applicant lodged an application for sole custody of J. and to establish J.’s place of residence with him. 19. On 23 July 2007 M.K. lodged an application to grant her sole custody of the child and to establish J.’s place of residence with her. 20. The proceedings were stayed between September 2007 and January 2008 owing to proceedings pending under the Hague Convention. 21. On 1 April 2008 the Bydgoszcz District Court approved a 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 at the same times; every 1 June from 4 p.m. to 7 p.m.; and for two weeks in the summer holidays from 1 to 15 July. The applicant was also under an obligation to allow M.K. to contact J. when the child was under his care and agreed that he would not see the child on 19 and 20 July 2008 as well as on 18 and 19 July 2009. 22. According to the applicant’s own statements before the domestic authorities contact took place according to the agreement. 23. The agreement was further modified by the parties on 29 September 2009 by extending the amount of time the applicant could spend with his child. It was agreed that the applicant would spend two weekends per month from Friday to Sunday with his son, as well as three weeks in the summer holidays and one week in the winter holidays. The applicant was also to have telephone contact with the child. 24. During the proceedings, on 11 March 2010, the Bydgoszcz District Court ordered the parties to have counselling. The applicant and M.K. began to go to counselling but M.K. pulled out. The court also ordered mediation to resolve their issues. The court ordered the preparation of several expert opinions. In particular the Regional Family Consultation Centre (Rodzinny Ośrodek DiagnostycznoKonsultacyjny -“the RODK”) submitted at least two reports by experts between 2008 and the beginning of 2010. The applicant contested the conclusions of the opinions. 25. On 19 March 2011 the Bydgoszcz District Court dismissed the applicant’s application to order that J.’s place of residence be with him, leaving the child in M.K.’s care. The court also dismissed M.K.’s application to decrease the applicant’s visiting hours. The applicant and M.K. retained joint custody of J. The court established that in the period up to 2008 the bond between the applicant and the child had weakened considerably owing to a lack of contact between them. However, their relations had significantly improved because after the settlement of 1 April 2008 contact between the applicant and his son had taken place without disturbance. Afterwards, at the applicant’s request, the contact arrangements had been modified on 29 September 2009. The court noted that the parties had had strong disagreements, had stopped talking to each other and should both be held responsible for the situation. According to the experts, the parents were not able to decide together on important aspects of the boy’s life. Nevertheless, the court found that both parents loved their child very much and wanted the best for him. The court found no reasons to limit either parent’s parental rights. 26. The parties appealed. 27. On 3 November 2011 the Bydgoszcz Regional Court partly granted the appeal lodged by M.K. and dismissed the applicant’s appeal. It found it necessary to limit the applicant’s parental rights only to the most important decisions on J.’s health, education, and upbringing. The court considered that the conflict between the parents meant it would not be possible for them to continue to carry out their parental responsibilities jointly. 28. In the meantime, on 11 August 2010, the Bydgoszcz District Court increased the amount of child support payable by the applicant to M.K. from 400 Polish zlotys (PLN) to PLN 500 per month. 29. On 19 May 2012 the applicant asked the court to further modify the contact arrangements. He submitted that his relationship with his son had got considerably worse since February 2012 and blamed the mother’s behaviour. The applicant asked for visits to take place in the presence of a guardian. The applicant also sought enforcement of the contact arrangements ordered in the agreement of 29 September 2009 (see paragraph 46 below). 30. On 20 December 2012 the court commissioned another report by experts from the RODK. The experts met the applicant, M.K. and J. 31. On 15 February 2013 M.K. applied to annul the settlement of 29 September 2009. She stated that J. refused to see his father and, while waiting for the experts’ report, it would be in his best interests to no longer see his father. 32. On 19 February 2013 the Bydgoszcz District Court applied an interim measure to limit the applicant’s access rights and ordering that both the applicant and M.K. have counselling. The applicant was allowed to see his son at McDonald’s or another public place for short visits in the presence of his mother or maternal grandparents. The applicant appealed. 33. On 8 April 2013 J. was questioned in the presence of a psychologist. The boy, eleven years old at the time, stated that he no longer wished to see his father. He stated that the applicant had paid no attention to him during visits and that he had been allowed to play computer games all day. 34. On 28 May 2013 the Bydgoszcz Regional Court quashed the interim order of 19 February 2013. The court ordered the parties to attend counselling and to submit attendance certificates to the court every two months. The court further emphasised the need to modify the way the father and the child communicated without suspending contact between them, which would lead to breaking the bond between them. 35. On 13 June 2013 M.K. applied to change the access rights of the applicant agreed in the settlement of 29 September 2009. M.K. asked the court to order that contact should take place every other weekend and be in her or her parents’ presence because J. had not seen the applicant for a long time and would feel unsafe with him. She also requested an interim measure from the court. 36. On 7 June 2013 the Bydgoszcz District Court gave an interim measure. It stated that the applicant would have the right to see J. every other weekend for two hours on Saturday and two hours on Sunday in a public place and in the presence of M.K. or her parents. Upon appeal by the applicant the decision was amended by the Bydgoszcz Regional Court on 9 September 2013 by extending the length of the meeting to three hours. The visits were to take place in a neutral place, in the presence of M.K. or her parents, and with a guardian for the first three months. 37. The applicant met his son in November 2013 in a McDonald’s restaurant. The boy was accompanied by his mother and was aggressive and hostile to the applicant. 38. On 3 March 2014 the RODK issued its report, recommending that the applicant and M.K. have counselling in order to learn to cooperate when making decisions about their son. The RODK also proposed that J. should consult a psychologist. It further observed that relations between the applicant and his son were strained because J. had a negative attitude towards the applicant and no longer liked to have contact with him. That attitude was the result of a negative image of the applicant that had been created under the influence of the mother. 39. At a hearing on 24 June 2014 the applicant declared that he was no longer attending the meetings because of his son’s disruptive and aggressive behaviour. The last meeting took place in November 2013. 40. On 8 September 2014 the RODK issued another report which stated that the boy had been loyal to his mother and had turned away from the applicant. 41. On 18 February 2015, after ineffective mediation, the court modified the contact arrangements by ordering longer meetings with the applicant. The court again ordered the parties to have counselling so they could learn how to reach agreement with each other. The court also noted that the applicant had the possibility to apply for imposing a fine on M.K. for noncompliance with court orders. On 15 May 2015 the applicant appealed. 42. The proceedings are still pending. 43. On 31 January 2007 the applicant complained that the arrangements for meeting his child, as established by the agreement of 2 December 2005, were not being enforced. After the child was removed to Germany the applicant initiated proceedings under the Hague Convention (see paragraphs 14-17 above). 44. On 1 April 2008 the court ordered M.K. to pay a fine if a contact meeting scheduled for 5 April 2008 did not take place. That and subsequent visits took place in accordance with the settlement of 1 April 2008. 45. On 27 April 2012 the applicant brought a claim to enforce his access rights under Article 598(16) § 1 and § 2 of the Polish Code of Civil Procedure (Kodeks Postępowania Cywilnego – “the CCP”). He submitted that his relations with his son had worsened substantially since February 2012 for which he blamed the mother’s behaviour. It appears that he withdrew the claim at an unspecified later date. 46. On 16 May 2012 the applicant requested the assistance of a court guardian during his meetings with the child (see paragraph 29 above). On the same day the applicant brought a claim to enforce the arrangements for meeting his child, as determined by the settlement of 29 September 2009, by imposing a fine on the child’s mother. The applicant submitted that M.K. had been making it impossible for him to call his son although that had been provided for by the settlement. Moreover, after November 2011, when his parental rights had been limited, M.K. had cancelled all his subsequent meetings with his son. Since March 2012 M.K. had started claiming that their child refused to meet him. 47. By a decision issued on 19 February 2013 the Bydgoszcz District Court ordered that M.K. pay the applicant a penalty each time he was denied his rights to have access 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 as scheduled. The court noted that there was no dispute about the fact that M.K. had prevented the applicant from seeing his son for about one year. M.K. lodged an appeal against the decision but it was dismissed on 26 June 2013 by the Bydgoszcz Regional Court. It appears that the applicant never applied to enforce that decision or to impose penalty payments on M.K.