COSTE v. POLAND
Inadmissible
Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
1. The applicant, Mr Gaël Coste, is a French national who was born in 1973 and lives in Marseille, France. He is represented before the Court by Ms A. Lończyk-Colin, a lawyer practising in Ruda Śląska. 3. In October 2009 the applicant’s daughter, A.S.C., was born out of his informal relationship with A.S., a Polish national. The family lived together in Paris. 4. In 2011 the couple split up and A.S. and A.S.C. moved to Poland with the applicant’s consent. 5. Since then, the applicant has maintained his contact with his daughter through frequent phone calls, regular meetings in Poland and several meetings in France. During these visits, the child was always accompanied by her mother, who would not allow the child to make unaccompanied visits to Poland or to travel to France without her. 6. The child does not speak French. Her mother occasionally teaches her French and reads to her in this language. The applicant communicates with his child in basic Polish or through the child’s mother. He pays child support and tuition for the child’s private school. 7. On 13 March 2013 the applicant applied for contact with his daughter. He did not ask for an interim order to be issued to secure his contact rights during the proceedings. He wished to take his daughter to France every year in the month of July, for the All Saints’ holiday, and for the Christmas or Easter holidays in alternate years. 8. On 11 June 2013 the Płock District Court ordered a report from the Family Consultation Centre (Rodzinny Ośrodek Diagnostyczno-Konsultacyjny, “the RODK”) to establish what kind of bond existed between the applicant and his child, the quality of the direct communication between the applicant and the child, and whether the child’s travel to France without the mother and contact between the applicant and the child without the presence of the mother or an interpreter would be contrary to the child’s best interests. 9. On 31 July 2013 ‒ following interviews with both parents and the child, which took place in the presence of a French interpreter ‒ the RODK produced an expert report. It was found that the child had a strong bond with both parents and that both of them were considerate, emotionally balanced and loving. It was also concluded that the quality of the linguistic communication between the applicant and his daughter was good and sufficient for the applicant to understand the needs of his child and for their mutual communication and that it was in the child’s best interests that contact arrangements be made. It was also recommended that before the applicant travelled with his daughter to France, they should have several unaccompanied meetings in Poland and that the child’s mother should accompany the child on a trip abroad. 10. On 26 March 2014 the Płock District Court (Sąd Rejonowy) dismissed the applicant’s application. The domestic court heard both parents and a witness. The domestic court also relied on the RODK report which was considered to be full and thorough, although it led the domestic court to draw partly different conclusions. In particular, it was held that the quality of the independent communication between the applicant and his child was not sufficient for carrying out long-term unaccompanied visits to France. Even though the lack of adequate linguistic exchange might not have significantly impeded the applicant’s play-time with his child as tested by the RODK, the lack of a common language between a father and a fouryear-old constitutes a serious obstacle to their contact in the longer term. In particular, the child would not be able to inform the applicant about her feelings or possible health disorders, and she would therefore not feel secure in the new environment. In this respect, the domestic court considered the RODK report to be inconsistent because, on the one hand, the experts had found that the quality of the communication between the father and the daughter was sufficient whilst, on the other, they recommended a transitional period during which the child would be accompanied by her mother on trips to France and the father could meet her without any linguistic assistance in Poland. In view of these considerations and the child’s young age, the domestic court held that ensuring her feeling of security ‒ which would in turn guarantee her adequate development and the proper course of the meetings ‒ was more important than her independent contact with her father. The domestic court had no doubt that the applicant had a right to unaccompanied contact with his daughter and that he had adequate parenting skills for such contact. But the language barrier between him and his child was an obstacle. The district court upheld the recommendation of the RODK experts that the child should be prepared for future independent contact by means of unaccompanied meetings in Poland and visits to France in her mother’s company. Eliminating such a transitional period would deprive the child of the possibility of a gradual adaptation to such a new and important event as unaccompanied travel with her father to France. The domestic court decided not to rule on any contact arrangements during the transitional period because the applicant had not requested it in his application. 11. The applicant appealed on the merits, including the grounds that a family court was duty-bound to rule on contact arrangements when the parties were in disagreement. The applicant also applied for an interim order for the duration of the appellate proceedings by virtue of which he would be authorised to have his daughter’s passport and to spend the month of August 2014 and the first weekend of every month with the child without the mother’s presence. 12. On 17 July 2014 the Płock Regional Court (Sąd Okręgowy) issued an interim order authorising the applicant to visit his daughter between 1 and 7 August and 23 and 30 August 2014 in her home in Poland from 10 a.m. to 6 p.m. without the presence of any third parties, and to take his daughter out for no longer than three hours (with the mother having a right to one phone call during this time). A copy of this decision has not been submitted. It appears that the applicant did not lodge an interlocutory appeal. 13. The applicant met his daughter in compliance with the above interim decision. He spoke with her mainly in French. 14. The applicant later modified his application for contact, wishing to spend his time with the child in Poland, the first weekend of every month ‒ from 5 p.m. on Friday until 7 p.m on Sunday ‒ in the period up until June 2015, and from 10 p.m. on 23 December until 7 p.m on 2 January, with the right to take her to his home. In the later phase, he wished to have extended contact rights as set out in his 2013 application. 15. On 24 September 2014 the Płock Regional Court amended the first-instance decision by authorising the applicant to visit his child the first weekend of every month, on Friday between 5 p.m. and 7 p.m., on Saturday from 10 a.m. to 7 p.m. and on Sunday from 10 a.m. to 6 p.m., and every day from 9 a.m. to 7 p.m in the period from 1 to 21 July. The meetings were to take place at the child’s home without the presence of the mother or any third parties. The applicant was also authorised to take the child out for a maximum of four hours, with the mother being entitled to one phone call. Additionally in July, the applicant was authorised to take the child out for a maximum of six hours and, every third day, to take the child to his place of residence in Poland and to travel alone with the child within a radius of 50 km for a maximum of eight hours, with the mother being entitled to two phone calls. In the domestic court’s view, such a schedule would deepen the bond between the father and the child and would help them improve their communication without the risk of the child feeling insecure. It was observed that the schedule was a temporary solution of indeterminate duration until the child reached a certain level of maturity and learned to speak French, which would be necessary in order for her to make unaccompanied visits to France. 16. The applicant regularly travels to Poland to exercise his contact right in line with the above schedule. 17. He has recently submitted to the Court, however, that since 3 October 2014 A.S. had been interfering with the course of his visits by remaining present in the room designated for the applicant’s visits and not letting him take the child out. Out of sixteen recent visits, the applicant had been allowed to take his daughter out only eight times, including twice after police intervention. The time out had often been shorter than four hours and A.S. had telephoned her daughter more frequently than was authorised by the family court. 18. On 16 June 2015 the applicant applied for A.S.’s custody to be restricted on the grounds that she had been hindering his contact with the child. 19. In the course of these proceedings, A.S. made the following submissions to the family court. The applicant is not being impeded from having contact with his daughter in line with the court’s decision of 24 September 2014. In particular, a room with toys is at his disposal in A.S.’s house and his visits are undisturbed by the child’s mother. The applicant is in principle allowed to take his child out for four hours, with the mother telephoning only once. Out of twenty-seven recent meetings between the applicant and his daughter, the child did not go out with the applicant on only ten occasions. On these occasions, either the child was ill or the weather was bad or the child did not want to go out. To substantiate this, A.S. presented a medical certificate confirming that the child had bronchitis in April 2015. She also submitted that on 6 June 2015 she had called the police after the applicant had used physical force to carry his crying and struggling daughter outside. That day the police had told the applicant to leave. A.S. also informed the family court that the applicant provoked disputes and threatened her with child abduction. Moreover, the applicant filmed A.S. during each visit, following her inside the house. The applicant’s visits were becoming more and more unpleasant for the child because he never brought books or toys to play with and was unable to entertain the child due to the language barrier. He sometimes gets angry with his daughter and makes her cry. He has also used firm grips to stop her from leaving the room. On one occasion he had left bruises on the girl’s arms. If the child does not want to go out with the applicant, the latter calls the police. On one occasion, he did so when the child was in bed with fever. The child associates his visits with violence and police intervention. 20. On 13 July 2015 the Płock District Court issued an interim decision ordering the visits to the child to be supervised by a court bailiff who was to report to the family court once a month. The aim behind this decision was to verify A.S.’s parenting attitude and to enable the applicant to exercise his contact right. It was emphasised that the decision had a temporary character and was susceptible to change in the event of new circumstances and if the best interests of the child so required.