CASE OF PŁAZA v. POLAND
No violation of Art. 8
Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano
5. The applicant was born in 1951 and lives in Gozd. 6. He married E.K. in October 1989. On 9 May 1990 K., the couple's daughter, was born. Two weeks later the couple split up. On 2 November 1992 the Warsaw Regional Court pronounced their divorce. The court awarded custody of the couple's child to both parents and ordered that her place of residence should be with her mother. 7. Between 1992 and 1997 several sets of proceedings were conducted concerning the enforcement of the access arrangements provided in the divorce judgment. Ultimately, on 22 July 1997 the parties reached an agreement validated by the court as to the manner of implementing the custody arrangements. The applicant was allowed to see K. once a month on Sundays for two hours, from 3 to 5 p.m. 8. Subsequently, the Warsaw-Mokotów District Court and, upon appeal, the Warsaw Regional Court, conducted successive sets of enforcement proceedings in respect of the 1997 agreement. In particular, it examined the applicant's successive applications for a fine to be imposed on the mother and/or to have time-limits fixed within which she should comply with the access arrangements and allow the applicant to see K. 9. On 16 October 1997 the applicant lodged an application with the Warsaw District Court for a fine to be imposed on K.'s mother. He submitted that she had consistently failed to comply with the conditions of the agreement concluded in July. On 2 December 1998 the mother was summoned by the court and ordered to allow the applicant access to their child within fourteen days. Upon her appeal, on 23 February 1999 the Warsaw Regional Court quashed that decision on formal grounds and remitted the case. On 21 October 1999 the Warsaw-Mokotów District Court set a one-month time-limit within which the mother was to comply with the conditions of the access agreement. 10. In letters to the Warszawa Mokotów District Court of 31 March and 26 April 1998, 19 April 1999 and 10 April 2001, E.K. requested the court to order the applicant to attend the meetings with the child without male friends, to dress appropriately for the occasion, to arrive on time and not to tease the child. In a letter of 9 March 1998 she informed the court that the applicant had failed to attend meetings planned for November, December, January and February, without having informed her that he would not come. She further stated that despite this the child would be ready to meet her father under the conditions specified in the agreement. In a letter of 29 January 1999 she informed the court that out of eighteen monthly meetings planned since the agreement had been concluded the applicant had failed to attend nine. 11. In 2000 the District Court appointed a custody officer to supervise the execution of the access agreement. She periodically submitted reports to the court, dated, inter alia, 15 September 2000, 6 April and 8 May 2001, 12 September 2003, 26 April and 2 May 2004 and 25 May 2005. 12. In January 2000 the first-instance court, following the applicant's complaint, again set a one-month timelimit for the mother to comply with the access arrangements and imposed a fine on her in the amount of 1,000 Polish zlotys (PLN). 13. On 4 June and 29 November 2000 the applicant renewed his applications. The court dismissed them on 6 September 2001. It observed that there were no grounds for imposing a fine, as the mother had not taken any steps to make it impossible for the father to see the child. It was the child herself who was hostile to her father. The applicant appealed, complaining that the court lacked impartiality and that it had wrongly assessed the evidence before it. The Warsaw Regional Court dismissed his appeal on 10 December 2001. It found that the parties had been in a bitter conflict; that the child had a negative attitude towards her father; that the mother had not done anything to prevent the girl from having contact with her father; that it was not in the child's best interest to force her to have frequent contact with him; and that the lower court had made correct findings of fact. 14. In May 2002 the applicant submitted a new application for a fine to be imposed on the mother. On 1 August 2002 the court dismissed it, essentially reiterating the reasoning adopted in its decision of 6 September 2001 and referring to similar findings of fact. It observed that the mother and father were in a conflict so bitter that they had become unable to see how much their conflict affected the child. They both blamed the other party for all the problems arising in connection with the exercise of custody and access rights, failing to see their own shortcomings and being unable to reach any compromise. The child had become an instrument in the fight between the parties. The child's hostility to her father and, in particular, the fact that the mother had not sought to influence her attitude, was alarming. The parents had told the court that they needed therapy, but had failed to do anything about it. The father had repeatedly asked for the mother to be punished by a fine but he had not challenged the assertion that it was the child herself who did not want to see him. 15. The applicant appealed, complaining that the first-instance court had been very superficial in the examination of the evidence. On 14 November 2002 the Warsaw Court of Appeal dismissed the applicant's appeal against that decision. It observed that forcing the child to see his father would not by itself restore the emotional ties between the girl and her father, and that these ties had become seriously weakened. 16. On 4 June 2003 the applicant submitted a new application to make the mother comply with the access arrangements. In the proceedings instituted by this application the court ordered that another opinion should be prepared by psychologists to assess both the feasibility of the applicant's contact with K. and the psychological state of the persons concerned. In that opinion, dated 1 October 2003, the experts stated that the child had declared that she had agreed to talk to the experts only at her mother's request. She had stressed that she had not changed and would not change her attitude towards her father. She could not understand why the applicant wanted to pursue contact, given that he had filed an application for denial of paternity (see paragraphs 37-38 below). She was convinced that he was motivated by his wish to annoy and cause stress to herself and her mother. She had complained about his visits to her school and the fact that he had told her teachers and her friends that she was a “bad daughter”. K. had called the applicant a “sadist”. She had objected to his criticising her mother, to whom she was very strongly attached. K. had strongly denied that her mother had ever forbidden her to see the applicant. In their conclusion the experts reiterated the conclusion of their 2001 report and noted that the therapy, which both the parents and the daughter had undergone separately, had not produced positive results. 17. On 25 February 2004 the first-instance court again set a one-month time-limit for the mother, on pain of a fine of PLN 1,500. The court summarised the enforcement proceedings and the decisions given in them. It noted that the applicant had not behaved badly towards the child and that he had reported regularly for the meetings. His behaviour towards the child might have been awkward but this was due essentially to the fact that he did not actually know the girl as he had had very little opportunity to get to know her. The court referred to an expert opinion prepared for the purposes of the proceedings and concerning the child's psychological situation. K. was very hostile towards her father, despite the fact that she had had no personal experience with him capable of justifying her hostility. The mother had failed to take any steps to persuade the child to have contact with her father or to alter the negative image which the child had formed of him. The court found K.'s attitude alarming. It further noted that had the mother been dissatisfied with the scope or character of the applicant's access rights, it had been open to her to challenge them in separate proceedings. The present case was concerned only with the enforcement of the existing access rights as defined by the 1997 agreement and it was obvious that the mother was not complying with them. 18. Both parties appealed. In her appeal E.K. stressed that she had never taken any steps to prevent her daughter from meeting the applicant. It was the child who had steadfastly refused to see her father, which left the mother helpless. In his appeal, the applicant insisted that the mother should be obliged to pay the fine after the expiry of the timelimit, as provided for by Article 1050 of the Code of Civil Procedure. The appeals were dismissed on 7 June 2004. The Warsaw Regional Court dismissed the applicant's appeal, in which he sought that a fine be imposed on the mother, noting that a fine could only be imposed if she had failed to honour her obligation within the time-limit set by the court. It further observed that it was actually the child, not the mother, who had refused contact, while it was the mother who was the debtor within the meaning of Article 1050 of the Code of Civil Procedure. It also dismissed the mother's appeal, observing that the child had, beyond any doubt, been drawn into the conflict between the parties. The image she had of her father had been shaped by her mother, particularly as the child had not had any contact with her father for several years, despite the fact that he had always been ready to see her and continued to come to the meetings fixed for that purpose. It was the mother who was responsible for the child's attitude, which was full of hatred and hostility towards her father. The court found the mother's attitude inappropriate. It further noted that the applicant and the mother and child had undergone therapy, but separately. However, as the child had refused to talk about her father, the issue of contact with him had not been addressed in her therapy. There were no grounds for believing that contact with her father would harm the child. 19. On 16 November 2004 the Warszawa-Mokotów District Court examined a complaint by the applicant, submitted on 15 September 2004, that the access rights had not been properly implemented, despite the expiry of the time-limit set for that purpose in the decision of 25 February 2004. The court noted that the time-limit for ensuring compliance had expired and that since that date the applicant had not seen the child as she steadfastly refused to meet him. The court imposed a fine of PLN 1,000 on the mother. It further set a timelimit of thirty days for her to comply with the access arrangements. 20. E.K. appealed. On 7 June 2005 the Warsaw Regional Court allowed her appeal and remitted the case. It observed that while it was true that the contact arrangements had not been respected, this was not because of the mother's failure to comply with them, but because of the girl's attitude. It further noted that she was fifteen years old and her views and feelings had to be taken into account by the courts. 21. On 7 November 2005 the Warszawa-Mokotów District Court dismissed the applicant's application for a fine to be imposed on E. K. The court heard K. in the absence of the parties and referred to her statements in its decision. She stated that it was she who had not complied with the access agreement. She told the court that the applicant had never been around when she needed him, he had never listened to her and had only wanted to hurt and annoy her mother. She stated that she would not see her father. The court emphasised that the father had a right to contact his daughter and the parties themselves had had regard to this right when concluding the 1997 agreement. However, while the situation obtaining at that time had probably offered prospects of contact, the court was obliged to take into consideration the current situation. K. was now fifteen years old and her opinion had to be taken into account. Lack of regular and peaceful contact for over eight years had resulted on her part in a lack of any emotional ties with her father. It could not be overlooked that the applicant did not want to listen to her views or to respect them. Even before the proceedings before the court he was dismissive of her views and expressed the opinion that they had been dictated by her mother. The court concluded that it could not be said that the mother was to blame for making contact impossible. There were no grounds for imposing a fine on her. The applicant appealed, requesting that the decision be quashed. 22. On 25 April 2006 the Warsaw Regional Court dismissed his appeal, finding that there were no grounds on which to impose a fine on the mother, given that the child was old enough to express her own views and feelings on the question of contact, which she obviously did not want to maintain. The mother could not be said to bear responsibility for the non-enforcement of the access arrangements. 23. On 26 June 2006 the applicant again requested that a fine be imposed on E.K. for failure to respect the access arrangements. 24. After that date, he had no further contact with the girl, even sporadically. 25. In reports submitted to the court on 4 December 2007 and 13 February 2008 the custody officer summarised her conversations with E.K. and K. She stated that K. was very mature for her age and very articulate. She did not understand how her father could say that he loved her and behave towards her in the way he did. He did not take her views into account, criticised her mother and her family, and had told many persons in K.'s environment that her mother was incapable of taking proper care of her. During the contact visits, he had complained about her mother. She did not want to be exposed to this. She requested recognition and understanding of her feelings and views. She stated that she was almost an adult and able to make a sensible judgment for herself. The contact with her father had been a source of stress, anxiety and shame for her. 26. On a subsequent unspecified date the Warszawa-Mokotów District Court ordered the applicant to submit the original of the access agreement of 1997. The applicant complied on 14 March 2008. His application of 26 June 2006 (see paragraph 23 above) was dismissed by the Warsaw District Court on 9 May 2008. The court had regard to all the material gathered in the file on the enforcement proceedings. It took into account K.'s persistent refusal to see the applicant and the fact that she had repeatedly said that she disliked or even hated him. It noted that there was no evidence that E.K. had prevented her daughter from seeing her father. It observed that the applicant's conduct towards K. could not have contributed to building good relations between them as he had tried on various occasions to see her unexpectedly at school or in other places or circumstances, which had only heightened the child's dislike and fear of him. It also noted that K. was eighteen years old and her views had to be taken into consideration. 27. On 20 May 2008 the court discontinued the proceedings concerning the enforcement of the 1997 agreement on the ground that K. was now 18 years old and thus the proceedings had become devoid of purpose. 28. On 21 April 1999 the court extended the applicant's access rights specified in the 1997 agreement and ordered that his meetings with K. be supervised by child contact supervisors. This decision was later amended by the Warsaw Regional Court on 22 February 2000. That court held that the temporal scope of the applicant's contact visits with K. should remain as determined in the original agreement but upheld the proviso that they should be supervised by child contact supervisors. 29. In 2001 the applicant again requested the Warsaw District Court to change the access arrangements specified in the 1997 agreement and to extend his visiting rights in respect of the child. Simultaneously, the mother requested the court to limit the applicant's access rights to a minimum. These two applications were subsequently joined and examined in the same set of proceedings. 30. The applicant's daughter was examined by experts in the course of these proceedings. The objective of the expert opinion, submitted to the Mokotów District Court, was to examine the nature of the relationship between the applicant and his daughter and to assess the value of contact visits for the child's development and well-being. The experts observed that K. had a highly negative opinion of her father. She refused to use his surname as her own name. She was of the view that he had failed to show a proper interest in her and that in fact he despised her and all his actions were aimed at annoying her and her mother. The experts concluded that because of that negative attitude relations between the applicant and his daughter were strained to such an extent that any meaningful contact was impossible. 31. On 23 October 2001 the court deprived the applicant of his access rights. The judgment was amended on 28 February 2002 by the Warsaw Regional Court and the mother's application to restrict the applicant's access rights was dismissed. 32. In May 2002 the applicant submitted to the same court an application to have the mother's custody rights restricted. In July 2002 E.K. submitted an application to have the applicant divested of his rights. 33. By a decision of 8 August 2002 the Warszawa-Mokotów District Court dismissed the applicant's request, ordered him to undergo therapy and imposed an identical obligation on E. K. and K. The court observed that, as the conflict between the parties had made it impossible for them to show a modicum of co-operation in the child's interest, therapy offered a chance for their relationship to improve. The court found that the conflict between the parents had caused the child to suffer from very serious psychological disturbances. 34. In a new set of proceedings instituted by the applicant by which he requested that E.K. be divested of her parental rights, the court questioned experts at a hearing held on 7 January 2004. On 18 February 2004 the Warszawa-Mokotów District Court dismissed the request submitted by the applicant, expressing the view that the applicant was essentially motivated by his wish to harass his former wife. 35. On 30 March 2006 E.K. requested the Warszawa-Mokotów District Court to divest the applicant of his parental rights. The applicant lodged an identical application with the same court. The cases were subsequently joined at a hearing held on 17 July 2006. A hearing scheduled for 16 October 2006 was adjourned as a refusal to allow the request to disqualify the judge, submitted by the mother, issued on 4 September 2006, had not become final. Subsequent hearings scheduled for 25 January and 5 March 2007 were adjourned as the parties failed to attend them. On 23 May 2007 a witness failed to comply with the summons and the hearing was adjourned. The next hearing was scheduled for 12 September 2007. On 4 June 2007 the applicant submitted a motion for a lay judge to be disqualified. On 12 September 2007 the court decided that the mother and child should be examined by the experts. The mother and K. were accordingly summoned to report to the Family Diagnostics Centre on 1 April 2008 but failed to comply with the summonses on that date. The court scheduled the hearing for 27 May 2008. The interview in the Centre was rescheduled for 11 June 2008. 36. On 27 May 2008 the court discontinued the proceedings as K. had turned eighteen on 9 May 2008. 37. In 2001 the applicant requested the Piaseczno District Prosecutor to bring, on his behalf, proceedings for denial of his paternity in respect of K. The child's mother was heard by the prosecutor on 17 October 2001. She gave her consent to DNA tests being carried out. The prosecutor informed the applicant thereof and stated that he would bring proceedings before the court only if the results of the tests showed that the applicant was not the father. By a letter of 2 November 2001 the applicant refused to undergo a DNA test and requested the prosecutor to lodge the case with the court. He submitted that the court should order the mother and child to undergo a test. 38. The prosecuting authorities brought no proceedings, finding, in the light of the parties' submissions, that there were no justified grounds on which to challenge the applicant's paternity. 39. On an unspecified date in 2006 the applicant filed a complaint under Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki – “the 2004 Act”) about a breach of his right to have his case heard within a reasonable time in the enforcement proceedings instituted by his application of 4 June 2003 and terminated by the decision of 25 April 2006 (see paragraphs 16 and 22 above). 40. On 21 September 2006 the Warsaw Regional Court dismissed his complaint. It observed that the applicant complained essentially about the second-instance court's quashing, on substantive law grounds, the decisions given by the first-instance court, which, in his view, had unduly prolonged the proceedings. The court noted that the length complaint could not go to the merits of the decisions and that there had been no periods of inactivity in the proceedings. Having examined the conduct of the District Court since the entry into force of the 2004 Act on 17 September 2004, the Regional Court found that the proceedings had been conducted with due diligence and within a reasonable time. 41. On 6 June 2008 the Warsaw Regional Court discontinued the proceedings instituted by the applicant's complaint about the unreasonable length of the proceedings, summarised in paragraphs 35 and 36 above. The court found that, given that the impugned proceedings had been discontinued on 27 May 2008, a ruling on their length had become redundant. 42. The relevant domestic law and judicial practice concerning the enforcement of a parent's visiting rights are set out in the Court's judgment in the case of Zawadka v. Poland, no. 48542/99, § 48, 23 June 2005. 43. In particular, according to the Supreme Court's resolution, if a parent who has been obliged by a court decision to respect the other parent's access rights refuses to comply therewith, access decisions are liable to enforcement proceedings. The provisions of the Code of Civil Procedure on enforcement of nonpecuniary obligations are applicable to enforcement of court decisions on parental rights or access rights (resolution of the Supreme Court of 30 January 1976, III CZP 94/75, OSNCP 1976 7-8). “1. If the debtor is obliged to take measures which cannot be taken by any other person, the court in whose district the enforcement proceedings were instituted, on a motion of a creditor and after hearing the parties, shall fix the time-limit within which the debtor shall comply with his obligation, on pain of fine (...). 2. If the debtor fails to comply with this obligation, further time-limits may be fixed and further fines may be imposed by a court.” If the court obliges a parent exercising custody rights to ensure access to a child to the other parent, Article 1050 of the Code of Civil Procedure is applicable to the enforcement of this obligation. 44. Article 12 of the UN Convention on the Rights of the Child provides that the States Parties shall ensure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 45. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the provisions of the 2004 Act as applicable at the material time, are set out in the Court's decisions in cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 1223, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and its judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.