CASE OF KRASICKI v. POLAND
No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä
5. The applicant was born in 1970 and lives in Warsaw. 6. The applicant recognised his paternity in respect of his two sons, A. and J., born out of his relationship with J.J. in January 1999 and December 2000. He never cohabited with the mother and the children. 7. On 14 January 2004 J.J. lodged an application with the WarsawMokotów District Court for the applicant to be divested of his parental authority (pozbawienie praw rodzicielskich). She argued that he had been failing to discharge his duties towards the children and to pay child support. 8. During a hearing on 18 February 2004 she withdrew her application. The court discontinued this part of the proceedings. In the same decision it held that both parents were to continue to have parental authority and that the children should reside with their mother. A court-appointed guardian (kurator sądowy) was assigned to supervise the applicant in the exercise of his parental authority. He was granted a right to contact, but no specific contact arrangements were set out at that time. 9. On 11 May 2005 the applicant requested the WarsawMokotów District Court to specify that contact arrangements away from the mother’s home, as difficulties had arisen for him to see the children. 10. On 23 December 2005 an expert opinion commissioned by the court for the purposes of the contact proceedings was issued by the Regional Family ConsultationCentre (Rodzinny Ośrodek Diagnostyczno-Konsultacyjny – “RODK”). It had been prepared by a psychologist and an education specialist who had met both the parents and children. It transpired that the children had emotional ties with both parents and a close and spontaneous relationship with the father. The father had emotional ties with the children, knew them well, accepted them, and wanted to maintain contact. He paid child support and had the qualities needed to be a competent father. He should therefore play a part in the boys’ lives. The experts stressed that the mother had a negative attitude towards the applicant and wished to exclude him from the children’s lives. They were of the view that her educational skills and practices were open to criticism. The experts noted signs of emotional distress in the boys but observed that they loved both parents. They concluded that the boys should have frequent contact with their father. 11. In a letter sent to the court during the proceedings, the applicant stated that he abstained from having contact with the children because the mother had been hostile and verbally aggressive towards him. 12. He had seen the boys on 1 October 2005. 13. By a decision of 8 February 2006 the WarsawMokotów District Court specified that the applicant had a right to see the boys on the first, second and fourth Saturday of every month, from 10 a.m. to 7 p.m., without the mother present. It further held that he was entitled to spend one week of the summer holidays with them. The mother was obliged to comply with that order. Her appeal was dismissed on 22 June 2006. 14. The mother failed to comply with the contact order. On numerous occasions the applicant complained in writing to the police and the court. The court-appointed guardians, in successive reports to the court, including in July and December 2006, January 2007, April 2008 and July 2009, confirmed that the mother had been obstructive, had failed to comply with the contact arrangements, and had repeatedly refused to open her door when they went to visit. They talked to the children’s teachers and the school’s education welfare officer with a view to gathering information about the children’s progress in school, the mother’s involvement in their education and the children’s contact with the applicant. 15. On 10 August 2006 the applicant requested that a fine be imposed on the mother for failing to let him see the boys. 16. On an unspecified date in November 2006 the boys’ mother allegedly told them that their father was dead. She sent him a funeral wreath with offers of condolences from his children. 17. On 17 April 2007 the WarsawMokotów District Court imposed a fine on the mother of PLN 1,000 for failing to comply with the contact order and ordered her to comply with its terms within thirty days. Two similar orders were issued on 21 September 2007 and 16 May 2008, upon applications by the applicant dated 26 July 2007 and 14 December 2007 respectively. Fines were imposed on her on both occasions (PLN 1,000 and PLN 1,200) and thirty-day time-limits fixed for her to allow the applicant to see the children. Any fine remaining unpaid within that time-limit would be converted into detention at a rate of PLN 100 per day. 18. In two reports submitted to the court in May and June 2007 the guardian observed that the applicant had only once taken the opportunity to see his sons on the school premises, despite an agreement being reached with the school authorities. In June and August 2007 she informed the court that she had not managed to establish contact with the parents. In her August report, she stressed the willingness of the teachers and the school authorities to assist the applicant in seeing his sons at school and informed the court that he had not availed himself of that opportunity. In reports submitted to the court in November and December 2007 and January and February 2008 the guardian summarised the applicant’s communications with the children’s teachers and authorities. She noted that there had been no signs of neglect on the part of the mother and that the boys caused no trouble and showed no signs of distress. Reference was made in the February report to the mother’s hostility towards the children’s father. 19. In April 2008 the applicant went to the mother’s apartment, accompanied by the guardian and the police. She said that she disagreed with the contact order, was ready to suffer the consequences and was not prepared to allow the applicant contact with the children. A child was heard crying in the apartment. The police chose not to intervene. The applicant was not allowed to see the boys. 20. The mother failed to pay the fines imposed on her. By an order of 17 December 2008 the court, having regard to that failure, held that she was to serve thirty-two days in detention in lieu of paying the unpaid fines and ordered the court bailiff to carry out enforcement. 21. On 31 July 2009 the guardian reported to the court that her attempts to establish contact with the mother had failed, as she would not open the door to her apartment. She stated that the applicant had not seen the children since he received a funeral wreath from the mother (see paragraph 16 above). He was of the view that the children thought he was dead. It was further stated in the report that the applicant had refused to look after the children if their mother was detained. He had a very small apartment with his wife and was not in a position to ensure that the living conditions were suitable for them. 22. By an order of 24 September 2009 the court fixed a threeweek timelimit for the mother to allow the applicant contact in accordance with the terms of the contact order on pain of enforcement measures being taken in respect of the detention order of 17 December 2008 (see paragraph 20 above). It appears that the mother declared on 31 July, 21 September and 8 December 2009 that she would comply, but the applicant was still not allowed to see the children. 23. On 2 October 2009 the guardian, in reply to a request by the court for further information, confirmed that the mother had consistently failed to allow the applicant to have contact with the children. Furthermore, she would not let the guardian enter her apartment. 24. In November 2009 the applicant tried to see the boys twice, but to no avail. The boys’ maternal grandmother told him that the children were not at home and that he would not be allowed to see them. The presence of a police officer did not have any effect. 25. On 2 December 2009 the court found that the mother had failed to comply with the contact arrangements and to pay the fine imposed on her. It held that she should therefore serve time in detention in lieu of paying the fine. 26. On 10 December 2009 the court decided to place the children with the grandmother for the time their mother was supposed to spend in detention. 27. On 27 July 2010 the court bailiff tried to arrest the mother, but there appeared to be no one home when he attended her address. The police refused to intervene. In August 2010 the mother submitted successive medical certificates to the bailiff stating that she could not start to serve her sentence until 30 September 2010. The bailiff informed the court on 27 September 2010. In October 2010 the grandmother paid the fines imposed by the court in the total amount of PLN 3,200. 28. On 26 October 2010 the applicant again requested that fines be imposed on the boys’ mother because she still refused to comply with the contact arrangements. During a hearing in relevant proceedings on 6 April 2011 the applicant submitted that on 21 March of that year he had given up pursuing his efforts to see the boys, as he had not wanted coercive measures to be used in the context of their contact with him (see paragraph 34 below). On the same day the court decided not to entertain his request to have a fine imposed on the mother. 29. On 8 November 2007 the WarsawMokotów District Court instituted ex officio proceedings to limit J.J.’s parental authority (ograniczenie praw rodzicielskich) acting upon, inter alia, the reports the court-appointed guardians had submitted to the court. They repeatedly averred that the mother had consistently avoided communicating with them, making it impossible for them to supervise her in the exercise of her parental duties and to establish the children’s situation, and their contact with their father. 30. On 31 March 2008 the court, having regard to the mother’s continued failure to comply with the contact arrangements and information gathered by the guardians as to her parenting skills, limited her parental authority. It appointed a guardian tasked with supervising her in the exercise of her parental rights. It noted that her attitude was to the children’s detriment. 31. On 31 August 2009 the mother lodged an application with the WarsawMokotów District Court for the applicant to be deprived of his parental authority (pozbawienie władzy rodzicielskiej) and his right to contact. She argued that his conduct was to the children’s detriment; that they had become hostile towards him and that this had been because he had tried to have her punished. During the proceedings, on 29 October 2009 a local assessment (wywiad środowiskowy) was conducted at the mother’s home by a court-appointed guardian with a view to establishing the children’s situation and the mother’s parenting skills. 32. On 2 December 2009 the court dismissed the application. In the written grounds for its decision it recounted the measures taken so far with a view to making the mother comply with the contact arrangements. It also acknowledged the applicant’s consistent efforts to have contact with his children. It noted that the mother’s attitude to any contact between the applicant and his children was negative and that she had been acting arbitrarily (arbitralnie) to make it impossible for him to play a part in the boys’ lives. The court was of the view that the mother was motivated entirely by her hostility towards the applicant and not the children’s best interests. It further noted that the children could develop a hostile attitude towards their father, based entirely on their mother’s attitude. The court concluded that the mother’s conduct was to the children’s detriment and that her behaviour needed to change. 33. In April, May, June, July and September 2010 the guardian submitted monthly reports to the court. It transpired that numerous efforts to establish contact with the mother had failed. She would not open the door to her apartment when the guardian went to visit her and the boys, even though the guardian could hear that someone was inside at the time. 34. On 26 October 2010 the applicant instituted proceedings to have the children removed from their mother’s care (przymusowe odebranie dziecka) on the grounds that she had hitherto failed to comply with the contact order. During a hearing on 22 December 2010 the applicant stated that he would continue to visit the boys on each scheduled date, if only to show his willingness to maintain contact with them, even if they continued to refuse to see him. He stated that he had not had any contact with them for five years. He had last seen them in November 2005. When he had gone to see them, they had talked to him on the steps and told him that they did not want to see him as he had never cared about them. 35. By an order of 22 December 2010 the court allowed his request and authorised the court-appointed guardian to assist him at each visit he was supposed to have with the boys in accordance with the terms of the contact order. 36. On the six visits that followed (8 and 22 January, 5 and 12 February and 5 and 12 March 2011) the applicant was assisted by the guardian. He saw his older son on 8 January 2011 for thirty minutes. On 5 February 2011 the children told their father that they did not want to see him. They refused to see him on 12 February 2011. On 5 and 14 March 2011 J. told his father that he did not wish to see him and that he would not change his mind. Detailed reports of these attempts at contact were submitted to the court by the guardian. On 15 March 2011 the guardian informed the court that the applicant, having regard to the children’s manifest hostility and their best interests, had waived his right to see them and guardian assistance. The guardian suggested that family counselling was necessary to improve the situation. 37. A meeting was held on 16 March 2011 attended by the applicant and two guardians. The applicant was of the view that coercive measures used for the purposes of enforcing the contact arrangements would only increase the children’s hostility towards him. He requested that another psychological assessment of the family situation be prepared urgently. By letters of 16 and 21 March 2011 the applicant informed the court that he had waived his right to guardian assistance and to see the children, referring to their negative attitude towards him and the fact that his efforts had hitherto been fruitless, on account of the mother’s continuous and unrelenting defiance. 38. In 2010 the guardians repeatedly tried to talk to the mother with a view to persuading her to comply with the contact arrangements, but she continued to refuse to open her door. In December 2010, January 2011 and twice in February 2012 the guardians tried to visit the mother, but to no avail. They informed the court accordingly. 39. In December 2011 the guardian spoke to the school about the children’s situation. It was established that they had not been attending school regularly. He also spoke to the children’s grandmother, who had avoided answering questions about her daughter’s and grandchildren’s situation. The guardian concluded that the mother appeared to have never left the apartment, had been living a life of total seclusion and had been unable to cope with the children’s educational difficulties. 40. On 2 March 2012 the WarsawMokotów District Court, acting upon reports received from the guardian and the school authorities, instituted ex officio proceedings with a view to varying the manner in which both parents had been limited in the exercise of their parental duties (see paragraphs 8 and 30 above). The guardian, in reports in November 2011 and February 2012, expressed the view that the children should be placed into emergency care (pogotowie opiekuńcze), on account of the total absence of contact from the mother and alarming information received about the children’s defiant and obviously disturbed and aggressive behaviour in school. 41. On 20 March 2012 the same court, acting upon information received from the police, instituted another set of ex officio proceedings concerning the same subject matter as those instituted on 2 March 2012. The proceedings were joined on the same day. 42. On 2 April 2012 a hearing took place. The court heard the applicant, three court-appointed guardians who had been involved in the case and the school’s education welfare officer. The applicant supported the guardian’s request for the children to be placed into care. He reiterated that he did not have any contact with the children. The guardians confirmed their submissions that the mother had consistently avoided communicating with them, and was living a life of seclusion. The education welfare officer stated that the children had been failing to attend school regularly and had become increasingly neglected, disturbed and aggressive towards other pupils and the teachers. The court ordered that the children be placed into emergency care. 43. The mother failed to take the children to the care home that was to accommodate them. On 21 August 2012 the court ordered the guardian to collect the children. The guardian attempted to do so four times, going to both their home and school on 28 August, 4 and 13 September and 16 November 2012 respectively. The guardian also sought the help of the police and the education welfare officer, but to no avail, as either there was no one in the apartment or no one opened the door. 44. On 14 November 2012 the mother lodged an application for the court order of 2 April 2012 to be revoked. She declared her readiness to cooperate with the court and the guardians. The enforcement proceedings were stayed for the duration of the proceedings. 45. On 15 November 2012 she allowed the police to enter her home. 46. On 15 January 2013 the court-appointed guardian was finally able to conduct an assessment (wywiad środowiskowy) at the mother’s apartment. He concluded that she was unable to properly discharge her duties towards the children and that she blamed the school’s education welfare officer and the court-appointed guardians for the existing situation, saying that she did not trust them. It was further suggested that a further examination by expert psychologists should be carried out at the RODK and that the mother be examined by a psychiatrist. 47. On 16 January 2013 a hearing took place. Both parents were in attendance. The court questioned the police and the boys’ maternal grandmother. It ordered that an expert opinion be prepared. The mother protested and submitted her own psychologist’s opinion stating that the children had not been neglected. The examination at the RODK was scheduled for 11 April 2013, but was eventually postponed to a later date to take place prior to the next hearing scheduled for 27 May 2013. 48. The proceedings are currently pending.