SCHULTZ v. POLAND
Inadmissible
Nicolas Bratza
The applicants, Anna Schultz and Marian Schultz, are Polish nationals, a married couple who were born on 20 February 1960 and 18 October 1956 respectively and live in Pątnów. The facts of the case, as submitted by the applicants, may be summarised as follows. The first applicant is a mother of nine children: Em. K., born 1981, Ew. K., born in 1982, Dor. K., born in 1984, Dom. K., born in 1985, M. K., born in 1987, A.K., born in 1988, K. K., born in 1989, U. K., born in 1991 and M. M., born in 1994. On 24 February 1989 the Konin District Court divested the first applicant of her parental rights in respect of her then six children: Em. K., Ew. K., Dor. K., Dom. K., M. K. and A. K. Later on, M. K. and A. K. were adopted by another family, and for Em. K., Ew. K., Dor. K. and Dom. K. the court established a foster family, the first applicant's parents, the grandparents of the children. On 20 January 1993 the first applicant's first husband R. K., the father of four of her children: Dom. K., M. K., A. K. and K. K., died. On 6 February 1993 the Konin District Court restricted the exercise of the applicant's custody rights in respect of the other two children, K. K. and U. K., in such a manner that the court appointed a guardian to monitor the family. In both decisions, given in 1989 and in 1993, the court considered that the mother had been manifestly neglecting her parental duties towards the children and abused alcohol. In 1994 M. M. was born. Later on, S. Miel. was established to be the father of this child in a judgment of the Konin District Court of 24 April 1995. In May 1998 Z. S. and F. S., the first applicant's parents, requested the Konin District Court to divest the first applicant of her parental rights and establish them grandparents as a foster family also for K. K., U. K and M. M. By a decision of 8 May 1998 the court divested the first applicant of her parental rights in respect of K. K., U. K and M. M., decided to place them in public care and appointed guardians for all three children. The court also refused to appoint the grandparents as the foster family. The court first recalled the decisions of 1989 and 1993 as the background of the case. The case-files of these two sets of the proceedings were before the court. It further noted that even after the decision of 1993 had been given, the first applicant exercised her parental rights in a manner open to criticism - she abused alcohol, was promiscuous and did not take proper care of the children, who were dirty and did not have adequate clothes. The efforts of the guardians, the local social assistance worker and the police to make the applicant comply with her parental obligations had proved successful only for short periods of time, after the talks they had with her. After S. Miel., the father of M. M., had died on an unspecified date, the applicant began a relationship with another man, S.M. At the beginning she slightly improved her ways towards the children, but later on they started to drink alcohol together, S.M. battered the first applicant and her children, and on several occasions the police intervened. It further noted that on 6 December 1997 the first applicant left home without leaving any contact address. S.M. and her parents took care of the three children. The grandparents had been unable to take proper care of the older four children, in respect of whom they had been appointed foster parents in 1989. The flat was dirty and they lacked basic personal hygiene habits. The flat was also relatively small and disorderly and the children did not have any table on which to do their homework. Despite the fact that the foster family had an income of 3200 PLN, which could not be considered small, this was not reflected in the quality of material conditions of the children's lives. The grandparents also had a certain tendency to abuse alcohol, and did not deny, when asked by the court, that from time to time they liked to drink. They were unwilling to co-operate with the guardians appointed by the court. In particular the first applicant's mother had tried to hide from the guardians the educational problems she had with the eldest daughter Em., whose behaviour had begun to resemble that of her mother. They also failed to comply with the guardian's suggestions to try to isolate the children from the pathogenic influence of the mother. Since the three children had been placed in public care, their older siblings, grandparents and mother visited them very often. These children were nervous, seriously retarded in their emotional and intellectual development and wet their beds during the night. It further considered that the conduct of the first applicant towards her children was such as to justify the conclusion that she had been consistently neglecting them. This was highlighted by, inter alia, the fact that in December 1997 she had left home - not for the first time - for several months, leaving no contact address and leaving the children under the care of her then partner, who had beaten them in the past. The court observed that the first applicant must have had strong sexual urges, as shown by the number of children she had by different men. She had often and casually taken up new relationships with men and was entirely absorbed by her personal life, to the detriment of the children. This demonstrated that she lacked the responsibility and maturity which were necessary for ensuring a proper care for her children and for ensuring that they were brought up in an atmosphere of love and stability. The court stressed that it had been the first applicant's parents themselves who had requested that she be divested of her parental rights. The first applicant, in the light of her consistent conduct, had not given any guarantees that she would mend her ways. The prior decisions of the courts to divest her of parental rights were proved to be correct, and the same decision in respect of the further three children was called for. The court further considered the request of the first applicant's parents to appoint them as a foster family. The court referred to the best interest of the three younger children, who, in view of their state needed conscientious professional care. The ageing grandparents were clearly unable to ensure such care for them, as shown by the fact that their care in respect of the older children had already proved inadequate. They limited their role to ensuring basic living conditions, but their educational skills left much to be desired. The court acknowledged that the first applicant's parents loved their grandchildren, but the emotional state of the younger children and the delays in normal development warranted their placing in public care. This solution was dictated by their best interests: they should be permanently separated from their mother so that she would not have any detrimental influence on their education. Thus, the placing of the children in public care, with a view to a possible adoption, would ensure their normal and healthy development. The following evidence was relied on: the testimony of the first applicant's parents, her own testimony, the case-files of the previous proceedings, the testimony of the guardian appointed to monitor the family, the reports she had prepared from the monitoring exercise and the report on the children drafted by the staff of the local emergency public care centre in which the three children had been placed. The court relied on Article 111 and 109 §§ 1 and 2, item 5, of the Family and Custody Code. The first applicant and her parents appealed against this decision. On 7 August 1998 the Konin Regional Court upheld the contested decision. The court observed that the lower court, when taking its decision, had primarily had regard to the best interests of the children and had carefully reasoned its decision. It had had regard to the opinion prepared by the local public care centre as to the children's state, which certified that they had been badly neglected. It had also questioned the guardian, who stated, in particular, that the first applicant's parents used to drink occasionally, as they had themselves confirmed before the court. The lower court had further taken into consideration that the first applicant's parents lacked parenting skills as shown by the difficulties they had with the older children: Em. had schooling problems and was very often absent, Dor. was in a school for retarded children and therefore needed special attention, Dom. was neglected, dirty, and also had school problems and was, as a result, ostracised by other pupils. It was stressed that the placing of the children in a public care did not mean that all contacts with their family would be cut. It remained open to them to visit the children at the children's home, and to take them for holidays, if the family court decided that this was appropriate. It further examined the first applicant's appeal. It noted that she had stated that she had a new partner whom she wished to marry. This, in the court's opinion, did not amount to a convincing argument that she would mend her ways: in the past it was primarily the applicant's new relationships with her successive partners which had made her focus entirely on her personal life and neglect her mothering obligations. Thus, the fact that she had a new partner did not guarantee in itself that she would take adequate care of her children. It also noted that the new partner, the second applicant, did not himself provide any guarantees in this respect, given that he had allowed her to live with him for four months and had disregarded the fact that she left her children for several months without any information about her whereabouts. The court concluded that the decision of the lower court, upheld by the Konin Regional Court, was lawful and justified. The Family and Custody Code (Kodeks Rodzinny i Opiekuńczy) of 1964 provides: Article 109 “1. If the interests of a child are in danger, the court shall issue a relevant order. 2. In particular, the court may: 5 ) decide that the child should be placed in the custody of a public care institution (...)” Pursuant to Article 111, if parental rights cannot be exercised due to a permanent obstacle, or if parents abuse their rights, or neglect their children in a flagrant manner, the family court shall divest them of their parental rights. If the grounds on which the parental rights had been withdrawn, cease to exist, the court may restore the rights to the parents. Under Article 112.1 of the Code, the duties and rights connected with carrying out the day-to-day care and educational obligations in respect of the children who have been placed in a public care institution or with a foster family, are carried out by the institution or by the foster family. According to Article 113 of the Code, the family court shall, if the best interest of the child so requires, prohibit access to the child by parents who have been divested of their parental rights.