CASE OF DĄBROWSKA v. POLAND
Violation of Art. 8;Non-pecuniary damage - award
David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
5. The applicant lives in Białystok. 6. In 1991 the applicant married Mr S.D. On 21 December 1998 their son J. was born. 7. In February 2006 the applicant's husband took their son for a winter holiday but afterwards failed to return with him to the family's flat. The applicant's husband rented a new flat and started hindering the applicant's contact with her son. 8. In February 2006 the applicant filed for divorce. 9. On 24 May 2006 the Białystok District Court (Sąd Okręgowy) gave an interim order which stipulated that, during the divorce proceedings, the child's place of residence would be with the applicant. The court ordered the applicant's husband to pay child maintenance and granted him access to J. on Thursdays and every other Saturday and Sunday. The interim order became final and enforceable on 25 May 2006. 10. On 5 July 2006 the District Court ordered the court-appointed guardians to enforce the decision of 24 May 2006 and to remove the child from his father's care. 11. On 14 July 2006 one of the guardians made a first attempt to enforce the court's order, which failed owing to the attitude of the father who refused to hand J. over to his mother. The guardian refused to call for police assistance or to inform the public prosecutor about the events. 12. The applicant informed the prosecutor that her child had been kidnapped by her husband. However, on 25 July 2006 the Kolno District Prosecutor refused to institute criminal proceedings, finding that no offence had been committed. This decision was upheld by the Białystok District Court on an unspecified later date. 13. The applicant was unable to assist the same guardian in her next attempt to remove the child from his father's care, which had been scheduled for 11 August 2006. Consequently, it had to be cancelled. 14. Given the subsequent inactivity of the guardians, the applicant lodged a complaint with the District Court on 6 December 2006. 15. In reply, she was informed by the President of the Łomża District Court that the guardians had received an instruction from a family court judge to cease their attempts to remove the child. 16. Following her second complaint about the court-appointed guardians, on 16 and 17 January and 5 February 2007, the President of the Białystok Regional Court (Prezes Sądu Okręgowego) wrote to the applicant informing her that he agreed that there had been shortcomings in the guardians' attempts to remove the child from his father's care and that new measures would shortly be taken. He noted, in particular, that before ordering a forced removal of the child, the applicant's husband should have been invited to voluntarily hand J. over. This had resulted in the unsuccessful enforcement of the court's order. 17. On 12 February 2007 the guardians made another attempt to remove the child. However, the applicant's husband had gone with the child to the adjacent flat. Both the guardians and the police refused to enter that flat. 18. On 20 February 2007 the Białystok District Court ordered the applicant's husband to hand over the child voluntarily to his mother within three days. 19. Since the father had failed to comply with this order, on 19 March 2007 the Białystok District Court gave a decision in which it authorised the court-appointed guardians to forcibly remove the child. 20. At a hearing held on 30 March 2007, in the course of the divorce proceedings, the court heard experts who had prepared an expert opinion requested by the court. They testified that the child's father had been manipulating the child with the aim of alienating him from his mother. The father had also made it difficult for the child to rebuild his relationship with his mother by ensuring that there was no private contact between her and the child. During visits the father was always present. In the best interest of the child, the experts recommended that custody be given to the applicant. 21. On 30 March 2007 the guardians made a fourth attempt to remove the child while he was at school. However, it was unsuccessful because the father had been notified by one of the guardians about the plan and thus did not bring the child to school on that day. 22. The guardians scheduled the next attempt to remove the child for sometime between 6 and 26 April 2007; however, it did not take place as the applicant did not receive formal notification until 28 April 2007. On 19 July 2007 the Białystok Regional Court considered that the late notification given to the applicant had been in violation of the domestic law. 23. On 27 August 2007 one of the guardians again attempted to remove the child; however, the child's father refused to open the door to the applicant and the guardian. 24. In August 2007 the applicant's former husband went into hiding with the child, so the guardians could not notify him of the next planned action. Even so, they did not inform the Kolno District Prosecutor about this fact until 29 November 2007. Subsequently, the Białystok District Court ordered that the applicant's former husband be heard by the Łomża District Court; for an unknown reason this order has never been carried out. 25. On 10 September 2007 the Białystok Regional Court dissolved the applicant's marriage. The court also decided to award the applicant full parental rights over J. It further found that the best interests of J. required that his place of residence be with his mother. The parental rights of the applicant's former husband were limited to decisions regarding the child's health and education. He was ordered to pay child maintenance and authorised to visit J. according to the arrangements set out in the judgment. The court considered that the applicant's former husband had been manipulating the child and alienating J. from his mother and other members of his family. 26. The applicant's husband lodged an appeal against the judgment. 27. Since September 2007 the applicant's child has not been attending school. On 5 December 2007 the applicant was fined for not fulfilling J.'s educational obligations. It appears that the decision was later quashed. 28. On 15 October 2007 the applicant received a reply from the President of the Białystok Regional Court to another of her complaints about the guardians' inefficiency. The President considered that some delays had been caused by the father's obstructive attitude but also by a lack of co-operation between the applicant and the guardians. Nevertheless, the last action by one of the guardians, which had taken place on 30 August 2007, had shown a lack of diligence, and the guardian had been instructed to make better use of the provisions of the Code of Civil Procedure (Article 598¹¹). 29. On 28 February 2008 the Białystok Court of Appeal (Sąd Apelacyjny) upheld the divorce judgment and dismissed the applicant's husband's appeal as manifestly ill-founded. The judgment is final. 30. On 14 April 2008 the Białystok District Court decided to discontinue the proceedings concerning the enforcement of the court's order of 24 May 2006. It found that the enforcement proceedings had lost their legal basis in the light of the final judgment pronouncing the applicant's divorce. On 17 June 2008 the Białystok Regional Court quashed that decision. The court considered that the enforcement proceedings should be continued since parental rights had been awarded to the applicant and she wished the proceedings aiming at the enforcement of the court's decisions to be continued. Moreover, the child remained in the care of an unauthorised person. 31. On 14 August 2008 the President of the Bialystok Regional Court again replied to the applicant's complaints that the enforcement proceedings were taking too long. The President informed the applicant that he would be personally overseeing the enforcement proceedings. He also stated that “the enforcement is still not effective and incorrect procedural decisions have again been taken, which have led to the proceedings being unnecessarily protracted”. 32. On an unspecified later date the applicant's former husband applied to be granted custody of J and to change the decision limiting his parental rights. 33. On 2 April 2009 the Bialystok District Court, sitting in camera, gave a temporary order in which it decided that, until the matter of custody was re-examined on the merits, the child's place of residence should be with his father. The court pointed to the fact that the child had been living with his father prior to the divorce proceedings and had very few ties with his mother. The court took into consideration that the child, who was eleven years old, had expressed his preference to live with his father. Moreover, the court considered that J. had been having contact with the applicant and that remaining temporarily with his father would be in his best interest. 34. The applicant appealed against the decision, complaining that she had not been informed of the proceedings to change the custody order instituted by her former husband and that the decision had been issued without holding a hearing. She maintained that the child's father had not been properly caring for J. and had not fulfilled the court's orders. 35. On 13 May 2009 the Bialystok Regional Court upheld the decision and dismissed the applicant's appeal. The court held that it had been necessary to legalise the existing status quo as J. had been in the care of his father since 2006. 36. To date J. has not been removed from his father's care. Prior to 2 April 2009, that had been in breach of the interim order of 24 May 2006 and the final divorce judgment of 10 September 2007. During that time, the applicant had only had infrequent contact with J., always in public places and in the presence of the child's father. 37. Article 5986 of the 1964 Code of Civil Procedure (Kodeks Postępowania Cywilnego) provides that if a person who is ordered to return a child does not comply with the court's order, the court will instruct the guardian to forcibly remove the persons concerned (przymusowe odebranie osoby). Under Article 59810, “Upon a request of a court-appointed guardian, the police are obliged to help him or her to carry out the forcible removal of [a minor].” Article 59811 § 1 provides as follows: “If forcible removal of [a minor] is hindered because that person is in hiding or because other action is taken with the aim of stopping the enforcement of the order, the court-appointed guardian shall inform a prosecutor.” Pursuant to 59812, “§ 1 The court-appointed guardian, in carrying out the removal of [a minor], shall be especially careful and shall do everything to ensure that the well-being of the child is not damaged and that [he or she] does not sustain physical or moral harm. If necessary, the guardian shall request the assistance of the social services or another institution tasked with this function. § 2 If the well-being of [a minor] would be placed at risk as a result of the removal, the guardian shall stop the enforcement of the order until the risk is over, unless by stopping the enforcement, the person would be placed at greater risk.” 38. Article 211 of the 1997 Criminal Code (Kodeks Karny) provides as follows: “Whoever, contrary to the will of the person having care or supervision, abducts or detains a minor under fifteen years of age or a person who is helpless by reason of his mental or physical condition, shall be liable to a custodial penalty of up to three years.”