STENZEL v. POLAND
Inadmissible
Nicolas Bratza
The applicant, Mr Krzysztof Stenzel, is an Polish national who was born in 1964 and lives in Rumia, Poland. The facts of the case, as submitted by the parties, may be summarised as follows. In 1990 the applicant married J.S. In 1991 their daughter P. was born. On an unspecified date in 1992 the applicant moved out of the family home. On 4 June 1992 the applicant applied to the Gdynia District Court (Sąd Rejonowy) for a residence order in respect of P.. Consequently, access proceedings were instituted. In June 1992 the applicant filed a petition for divorce with the Gdynia District Court. On 13 July 1992 the applicant requested the Gdynia District Court to make an interim order on access arrangements during the custody and access proceedings. On 27 July 1992 he also requested that J.S. be divested of parental rights. On 10 August 1992 the applicant was awarded interim access to the child by the Gdynia District Court. This allowed him to visit the child on Saturdays. J.S. refused to comply with that order. On 3 September 1992 the applicant applied for a court order prohibiting his wife from removing the child from Poland without his consent. On 4 November 1992 the court refused his request. On 30 December 1992 he requested the Gdynia District Court to change the access arrangements determined on 10 August 1992. On 8 June 1993 the Gdańsk Regional Court (Sąd Wojewódzki) dissolved the applicant’s marriage. The court awarded parental rights to both parents. It also limited the applicant in the exercise of his rights: it ordered that P.’s permanent residence be with her mother, but allowed the applicant to co-decide about the child’s education and health. The court did not specify access arrangements. On 10 December 1993 the applicant appealed against the divorce. On 9 December 1993 J.S. instituted proceedings in which she requested that the applicant be divested of his parental rights on the ground that he had been aggressive towards her. On 14 December 1993 the custody and access case was joined with the case instituted by the applicant’s wife. In January 1994 J.S. left Poland together with the child and settled in Germany. She did not inform the applicant about it and did not give their new address in Germany. In February 1994 the court gave J.S. three months in which to ensure compliance with the access arrangements provided for by the order of 10 August 1992. In February and in April 1994 the applicant again amended his application concerning the access arrangements and requested that the court issue a new interim decision to replace that of August 1992. On 5 April 1994 the Gdynia District Court issued a decision allowing the applicant to see P. every Tuesday for two hours at the Family Diagnostics Centre in Sopot in her mother’s presence. The mother appealed. On 6 September 1994 the Gdańsk Regional Court quashed this decision and remitted the case. In October 1994 J.S. married a German citizen, changed her name to J.V. and moved to Hamburg with P.. She did not inform the applicant of her whereabouts. The applicant subsequently established their address with the assistance of the Polish consulate in Hamburg. On 1 November 1994 the mother submitted that she would agree to report with the child at the Family Diagnostics Centre for an interview if she was granted appropriate protection against the applicant’s aggressive behaviour. Following the remittal, on 19 October 1995 the Gdynia District Court issued its decision. The court dismissed J.V.’s motion that the applicant be divested of his parental rights, and the applicant’s motion that the child reside permanently with him. The court found that J.V was living with her new husband, a German citizen, his parents and P. in a house with a garden. It had been established by German social assistance authorities that P. got on well with her new environment and called her stepfather “dad”. P was happy, healthy and well cared for in her mother’s house. In April 1995 J.V. gave birth to another child. Conversely, the applicant was unemployed, lost his right to social security assistance and lived in his parent’s house. He had been also paying maintenance for another child – a six-year old son. The court considered that P. had every chance of obtaining an upbringing in a functional restructured family composed of her mother, her step-father and half-sister. She had a sense of security and stability in her mother’s house and it had been in the child’s interest to stay there. The court did not find any reasons to divest J.V of her parental rights. The fact that she had left Poland without informing the applicant thereof had certainly been an abuse of her parental rights, but could not serve as a ground on which to divest her of her rights in respect of P.’s custody. As to the applicant, there were also no grounds on which to divest him of his parental rights. The applicant lodged an appeal with the Gdańsk Regional Court. He submitted that since 1992 the mother had made it impossible for him to have any contacts with P. On 11 April 1996 the Gdańsk Regional Court upheld this decision. The court repeated the arguments of the first-instance court. On 15 April 1996 the applicant instituted new proceedings in which he again requested the Gdynia District Court to establish access arrangements. On 23 April 1996 he lodged a further motion asking that full custody rights be restored to him. On 20 May 1997 the Gdynia District Court dismissed the applicant’s motion of 23 April 1996 and refused to award custody to him. The court found, on the basis of new evidence obtained meanwhile from the German authorities, that P. was well integrated in her new family in Hamburg. She had no distinct memory of her life with her father before the divorce. Moreover, she received affection from her mother, her mother’s husband and his family. The spouses cared well for her, providing P. with the best conditions for her upbringing. The court accepted J.V.’s testimony that she had not deprived the applicant of effective access to the child as it had been the applicant who had made the contacts difficult due to his aggressive behaviour. The court concluded that removing P. from her mother’s custody, or even establishing a permanent access arrangement with the applicant, would harm the health and development of the child. On 19 June 1997 the applicant appealed against this decision. On 16 September 1997 the Gdańsk Regional Court upheld the contested decision and dismissed his appeal. It noted that having regard to the child’s well-being there were no circumstances which would justify a new decision on access arrangements. On 10 April 1998 the Ombudsman lodged a motion on the applicant’s behalf with the Gdynia District Court to determine access arrangements. It was argued that the question of the applicant’s access to P. had never been settled except for the interim order of 10 August 1992. The child’s mother had deprived the applicant and the child of any possibility of contact. The applicant was right in emphasising that J.V. had abused her parental rights by removing the child from Poland without the applicant’s or the court’s permission or knowledge. That had constituted a violation of the domestic regulations and relevant provisions of international law. The Ombudsman stressed that J.V.’s actions had been clearly unlawful. On 18 December 1998 the Gdynia District Court dismissed the applicant’s request for an interim access decision allowing him to send letters and presents to P. On 18 March 1999 the Gdynia District Court established a temporary access arrangement and allowed the applicant to call P. once a week and to send letters to her. The applicant’s further appeal against this access arrangement was dismissed by the decision of the Gdańsk Regional Court on 28 May 1999. On 6 July 2001 the Gdańsk District Court gave a decision on access arrangements. The child would visit the applicant once a year and he would be allowed to spend 14 days with her during the summer holidays. In addition the child would twice a month call the applicant. The applicant was allowed to send letters to his daughter. The child’s mother appealed against this decision On 14 June 2002 the Gdańsk Regional Court amended the first instance decision. The court considered that there were no grounds on which to accept that the child should have direct contacts with the applicant. P. had been brought up without any contacts with her father and she did not know him. Furthermore, as it appeared from her statements given in the proceedings before the German authorities, she had not been interested in having contact with the applicant. The court held that establishing a permanent access arrangement with the applicant could harm the child’s health and her development. In conclusion, the court allowed the applicant to send letters and gifts to his daughter. On 12 December 1994 and 26 January 1996 the Gdynia District Court imposed fines on J.V. in the amount of 10 PLN for failure to comply with its order of 10 August 1992. On an unknown later date J.V. paid the fine which had been imposed on her on 12 December 1994. The enforcement proceedings concerning the second fine were discontinued in July 1997. On 10 November 1999 the applicant again requested the court to impose a fine on J.V, alleging that she had prevented him from talking to P. on the phone and that she had refused to accept letters he had sent to P. On 16 November 2000 the Gdynia District Court dismissed his request. The court considered that the applicant had failed to contact the mother in order to obtain her telephone number, and that it was not established that the mother had sent back any applicant’s letters. On 27 March 2001, the Gdańsk Regional Court dismissed the applicant’s appeal against the first-instance decision. The court considered that it had not been confirmed that J.V. had obstructed the applicant’s attempts to contact his daughter. On 20 January 2000 the Reinbeck District Court in Germany decided to change the divorce judgment insofar as it concerned the custody of P. and granted custody solely to the mother. It considered that the parents were in conflict and that, in any event, the applicant and the child lived far away from each other. The applicant had failed to appeal against this decision. The Family and Custody Code (Kodeks Rodzinny i Opiekuńczy) provides: Article 58 § 1 “In a decision on divorce, the court is competent to issue orders as to the care of the parties’ minor children (...). The court may grant custody right to one parent and limit the custody rights of the other one.” The Code of Civil Proceedings (Kodeks Postępowania Cywilnego) provides: Article 557 “The custody court can change its decision if the best interest of the person whom it concerns so require. “ According to the Supreme Court’s resolution, if a parent who has been obliged by a court decision to respect the other parents’ access rights refuses to comply therewith, access decisions are liable to the enforcement proceedings. The provisions of the Code of Civil Procedure on enforcement of non-pecuniary 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): Article 1050 “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 the 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 a fine (...). 2. If the debtor fails to comply with this obligation, further time-limits may be fixed and further fines may be imposed by the 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 Proceedings is applicable to the enforcement of this obligation. The Hague Convention on Civil Aspects of International Child Abduction of 1980 provides in so far as relevant. Article 21 “An application to make arrangements for organizing or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child. The Central Authorities are bound by the obligations of co-operation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of such rights may be subject. The central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights. The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organizing or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject.”