CASE OF R.S. v. POLAND
Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);Pecuniary damage - award (Article 41 - Pecuniary damage);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Yonko Grozev
5. The applicant was born in 1969 and lives in Zurich. 6. The applicant is a Polish national. He married M.S., another Polish national, in 1994. Shortly afterwards they moved to Switzerland where the applicant works as a software specialist. In 1998 their son P. was born and in 2002 their daughter J. 7. In autumn 2007 the applicant began an affair with H. 8. In February 2008 the applicant and M.S. decided to separate and he moved to another flat. However, the applicant’s flat was located opposite the flat of his family and he kept regular contacts with his children. 9. On 24 September 2008 M.S. filed a petition for divorce with the Kraków Regional Court. M.S. applied for an interim order granting her temporary custody over P. and J. for the duration of the divorce proceedings. She had also informed the court that she would be in Kraków between 4 and 28 October 2008. 10. On 4 October 2008 M.S. took the children to Poland for school holidays. She promised to return on 20 October 2008. The applicant was informed about the trip and consented to the travelling dates. 11. On 15 October 2008 the Regional Court granted the request of M.S. for an interim custody order. The applicant was neither informed of nor summoned to the court session concerning this order. 12. Subsequently, on 24 October 2008 the applicant lodged a request for return of his children under the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) (see paragraphs 20-30 below). 13. On 12 November 2008 the applicant requested the Kraków Regional Court to stay the execution of the interim custody order of 15 October 2008. He also appealed against that order. 14. On 11 December 2008 the Kraków Regional Court dismissed the applicant’s request for stay of the execution of the interim order and instead stayed the divorce proceedings. The court referred to the pending proceedings under the Hague Convention (see below). The applicant’s appeal against this decision and against the interim custody order was dismissed by the Kraków Court of Appeal on 26 February 2009. 15. On 3 March 2010 the Kraków Regional Court gave an interim order and determined the applicant’s contacts with P. and J. for the duration of the divorce proceedings. 16. On 6 May 2011 the Kraków Family Consultation Centre (Rodzinny Ośrodek Diagnostyczno-Konsultacyjny) submitted an expert report to the Kraków Regional Court. According to the report, M.S. should continue to exercise custody of the children as she had always been more involved in their upbringing. Moreover, the experts considered that another separation from a parent and another change of environment would be detrimental to the children. They further noted that the applicant should be allowed to have contacts with his children outside the territory of Poland as long as there was no risk of destabilisation of their situation. He should have the right to spend with them half of summer vacation, holidays and weekends and to visit them 1-2 times a month. 17. On 24 July 2012 the Kraków Regional Court dissolved the applicant’s marriage. It found that the applicant had been at fault in the breakdown of the marital relationship. It further held that full parental authority was to be exercised by M.S., whereas the parental rights of the applicant were limited to decisions regarding the children’s upbringing, health and education. He was authorised to have contacts with P. and J. two afternoons per week and two weekends per month. He was further ordered to pay child maintenance and alimony. 18. The applicant appealed. He argued, in particular, that, due to the fact that he resided in Switzerland, his visiting rights during holidays and summer vacation should have been regulated by the court. 19. On 15 March 2013 the Kraków Court of Appeal dismissed the applicant’s appeal and upheld the first instance’s judgment. 20. On 24 October 2008 the applicant lodged with the Swiss Central Authority a request concerning the return of the children to Switzerland under the Hague Convention. It was transmitted to the Administrative Division of the Kraków Regional Court on 25 November 2008. 21. Subsequently, in a letter of 13 March 2009 the Swiss Central Authority confirmed that the applicant and M.S. had exercised joint custody over P. and J. The authority expressed the view that since the Swiss authorities had not been aware of any decision of Swiss courts or authorities limiting the applicant’s custody rights, the fact that the children stayed in Poland after 20 October 2008 without their father’s consent constituted a wrongful removal under Article 3 of the Hague Convention. 22. Meanwhile in Kraków, on 9 December 2008 a local assessment (wywiad środowiskowy) was conducted at the home of M.S. by a courtappointed guardian with a view to establishing the children’s situation. The report confirmed that the children’s living conditions with their mother were very good and that they continued their education in private schools. 23. On 17 December 2008 the Kraków District Court held the first hearing in the proceedings under the Hague Convention. The court also gave an interim order and allowed the applicant to visit the children on that day in the afternoon. 24. On 5 January 2009 the court requested a psychologist to prepare a report concerning the children’s mental and emotional maturity and their capacity to express views on the matter of their return to Switzerland. 25. On 9 January 2009 another hearing took place. 26. On 21 January 2009 the expert submitted his report to the court. 27. On 27 January 2009 the District Court allowed the applicant another exceptional contact with his children. They were to stay with him from 30 January until 1 February 2009. However, the applicant was not allowed to leave Poland with the children. 28. On 11 February 2009 the Kraków District Court gave a decision and refused to grant the applicant’s request for the children’s return to Switzerland. The court referred to the applicant’s and M.S.’s consistent testimonies and the information included in the divorce file. The court established that on 4 October 2008 M.S. had come to Poland together with P. and J. and the applicant had consented to this trip. On 20 October 2008 M.S. had not returned to Switzerland and stayed in Poland together with the children. The applicant had not accepted this decision. The court subsequently stressed that in the proceedings under the Hague Convention it should be firstly established whether wrongful removal or retention took place. It further held that in the case at issue there had been no wrongful removal since the applicant had agreed to P and J’s trip to Poland on the 4 October 2008. With reference to the fact that M.S. failed to return on 20 October 2008 (the date agreed with the applicant), the court noted that she had been granted temporary custody over her children for the duration of the divorce proceedings. When the interim order was delivered, that is between 4 and 20 October 2008, the children remained in Poland with their father’s consent. Consequently, M.S. could have decided to stay in Poland also after 20 October 2008 and there had been no wrongful retention in the case. The court also considered that the interim custody order was not contrary to Article 16 of the Hague Convention, since the applicant’s request for return of his children had been received by the Kraków Regional Court only on 25 November 2008 while the custody order had been delivered on 15 October 2008. Lastly, the court held that the refusal to grant the request for return was not contrary to Article 17 of the Hague Convention, since that provision concerned custody decisions delivered after the removal of a child. 29. On 24 March 2009 the applicant lodged an appeal against the firstinstance decision. He argued that the contested decision was in breach of Article 3 of the Hague Convention. He further argued that Article 17 of that Convention was also breached as the first-instance court had relied on a decision which was merely of a temporary character, whereas this provision expressly prohibited to refuse an application for return on the basis that a decision on custody was given in the country to which children were abducted. 30. On 2 June 2009 the Kraków Regional Court dismissed the applicant’s appeal. The court first refused to accept as evidence the document from the Swiss Central Authority since that document failed to refer to the interim custody order of 15 October 2008. It its decision, the Kraków Regional Court referred in particular to the events leading to the breakdown of the applicant’s marriage. It also noted that when M.S. had discovered that the applicant’s new partner had been pregnant, she had decided to institute divorce proceedings. However, she had been informed by a Swiss lawyer that in view of the applicant’s lack of consent to a divorce, she could only have filed a petition in Switzerland after two years of separation. For these reasons she had decided to file a petition for divorce with the Polish courts. The court further noted that on 4 October 2008 M.S. had arrived in Kraków with her children in order to spend two weeks of school holidays there, after having obtained the applicant’s consent for their trip. The court further stressed that M.S. decided to stay in Poland permanently only when she was granted temporary custody. Consequently, in the court’s opinion the removal of the children was not a wrongful removal within the meaning of Article 3 of the Hague Convention. The decision was served on the applicant on 28 July 2009. It is final.