CASE OF MALEC v. POLAND
Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer
5. The applicant was born in 1973 and lives in Bibice. 6. In 1997 the applicant married E. In 2004 their daughter, N., was born. In 2008 the applicant and E. separated. In May 2008 the applicant moved out of the family home. 7. After the separation, the applicant and E. agreed on access arrangements (every second weekend, one day during the week, and the winter and summer holidays). 8. On 16 January 2009 the applicant lodged a divorce petition with the Kraków Regional Court (Sąd Okręgowy) together with an application for an interim contact order. 9. On 26 February 2009 the Regional Court ordered a local assessment (wywiad środowiskowy) to be conducted at the mother’s home by a courtappointed guardian with a view to establishing N.’s situation and the parenting skills of the mother and father. The guardian submitted her report on 21 July 2009. The guardian established that N. loved both parents but was more attached to the mother. The applicant had frequent contact with his daughter. However, the parents were in conflict with each other and had negative feelings about each other. The applicant had authorised M.T., his new partner, to collect N. from the nursery, which was a source of great conflict between the parents. The guardian concluded that the access arrangements should be speedily determined by the court in order to minimise the negative consequences of the divorce on N. The child should stay with the mother and the father should be allowed frequent visits. He should, however, inform the mother of the child’s whereabouts as he had taken N. abroad without the mother’s knowledge. 10. A hearing scheduled for 17 February 2010 did not take place as the case file had not been returned from the Court of Appeal (where maintenance proceedings had taken place) and because the applicant had been in pre-trial detention in connection with a corruption case against him. 11. On 2 June 2009 and 14 October 2010 the applicant again applied for interim contact orders, specifying different arrangements. On 18 November 2010 the mother replied, setting out her own request for contact arrangements. 12. In summer 2010 the applicant moved in with M.T. and in September 2010 a son was born. 13. On 22 November 2010 the Kraków Regional Court issued an interim contact order. It decided that the applicant was allowed to see his daughter every second weekend between 3 p.m. on Friday and 5 p.m. on Sunday, and also between 3 p.m. on Tuesday and 3 p.m. on Wednesday. In addition, he could spend every second Christmas Eve, every Christmas Day and every Easter Sunday with her. The applicant was allowed to take N. for the first week of the winter school holidays and between 1 and 21 July of the summer holidays. 14. On 21 January 2011 the Kraków Regional Court issued a writ of execution in respect of that decision. 15. On 17 May 2011 E. asked the court to restrict contact between the applicant and N. owing to the child’s fragile emotional condition. N. had therapy with a psychologist between April 2011 and February 2012. 16. A hearing scheduled for 22 March 2011 was adjourned after the applicant lodged an application for the judge to step down. That application was dismissed on 29 March 2011. A further appeal by the applicant was dismissed on 7 September 2011. 17. On 20 May 2011 the psychologist treating N. suggested a change in the contact order so that N. would not have to stay overnight at the applicant’s house, as that was apparently causing her a lot of stress. 18. On 13 July 2011 the Kraków Regional Court ordered another local assessment. The guardian submitted her report on 16 December 2011. She established that contact visits with N. had taken place as agreed by the parents after their separation, with the exception of the period between January-May 2010 (when the applicant had been detained on remand on corruption charges). Contact meetings had resumed in May 2010 and had continued regularly until November 2010. Subsequently, after the court had begun supervising the contact visits, the conflict between the parents had escalated. The mother had been of the opinion that the applicant had wanted the contact meetings to take place regardless of the child’s needs and her after-school activities (ice skating practice). On the other hand, the father was convinced that the practice schedule had been manipulated by the mother so that it took place during his contact visits. As of 17 December 2011, the contact visits had not taken place according to the interim contact order. The applicant saw his daughter on her birthday and on a few occasions after school. 19. On 2 January 2012 the guardian submitted a supplementary report to the court. She noted that N. did not enjoy the way the contact with the applicant was taking place. She did not mind seeing him more often than scheduled, but she did not want to stay overnight at his house. 20. On 11 January 2012 a hearing took place during which the applicant and E. agreed on access arrangements. On the same day, the Kraków Regional Court issued a divorce decree. The court ordered that in the period up to 30 June 2012 the applicant could see his daughter every Thursday between 3 p.m. and 7 p.m.; every second Saturday and Sunday between 11 a.m. and 7 p.m.; as well as on Easter Sunday between 11 a.m. and 7 p.m. From 1 July 2012, the applicant could see his daughter every second weekend from 3 p.m. on Friday until 5 p.m. on Sunday; every Wednesday from 3 p.m. until Thursday 3 p.m.; for the whole of the period between 1 and 21 July; the first week of the winter holidays; the first day of Easter; and on Christmas Day. 21. On 5 March 2012 the applicant appealed. On 31 July 2012 the Kraków Court of Appeal upheld the first-instance judgment. 22. On 14 and 20 December 2010 and on 17 January 2011 the applicant complained to the court that the mother had refused to comply with the access arrangements. 23. On 7 March 2011 the applicant lodged two applications for the court to impose a fine on the mother for failing to comply with the interim contact order of 22 November 2010. 24. The applicant subsequently lodged three applications on 15 April 2011, three on 28 April 2011 and four on 18 May 2011. 25. The court scheduled a hearing for 27 May 2011. However, E. failed to appear on that date (she was on leave to take care of her sick child). 26. The applicant lodged numerous further applications for the court to impose fines on E. In particular, he lodged two applications on 1 June 2011, two on 7 June 2011, four on 24 June 2011, three on 25 July 2011, three on 8 August 2011 and one on 23 August 2011. 27. The next hearing took place on 31 August 2011. 28. At a further hearing held on 28 October 2011, with reference to the applicant’s motion of 7 March 2011, the Kraków-Krowodrza District Court ordered the mother to comply with the interim contact order within two weeks on pain of a fine of 1,000 Polish zlotys (PLN). On 30 December 2011 the Kraków Regional Court dismissed an appeal by E. against that decision. 29. The applicant made further requests to the court to impose fines on E.: on 1 February 2012, 20 February 2012, 20 March 2012, 3 April 2012 (six motions); 24 April 2012 (two motions); and on 21 May 2012 (three motions). 30. On 8 March 2012 the Kraków-Krowodrza District Court severed to a separate set of proceedings the applicant’s application of 23 August 2011 (see paragraph 26 above). It was subsequently dismissed on 18 April 2012. Upon further appeal, the Kraków Regional Court quashed that decision on 30 July 2012. On 3 September 2012 the proceedings were further severed and the part concerning the applicant’s application of 23 August 2011 was assigned a new case number. It was subsequently transferred to KrakówNowa Huta District Court on account of a change of address by E. The proceedings were eventually discontinued on 24 April 2013. 31. On 15 March 2012, in reply to the applicant’s claim of 7 March 2011, the District Court imposed a fine of PLN 1,000 on E. (which she subsequently paid). It further ordered her to comply with the interim contact order within two weeks, on pain of another fine of PLN 1,000. 32. On 24 April 2012 a court-appointed guardian submitted a report to the court on arrangements for the applicant’s contact with his daughter. She observed that contact visits were not taking place in accordance with the contact order. N. sometimes met the applicant on Tuesdays after school, staying with him until about 3-4 p.m. She further noted that while N. did not want to stay overnight at the applicant’s home, she did not mind seeing him more often after school during the week. The guardian suggested that the parents and the child undergo an assessment at the Regional Family Consultation Centre (Rodzinny ośrodek diagnostyczno-konsultacyjny) (“the RODK”). 33. On 8 August 2012 the court imposed another fine of 1,000 PLN on E. However, on 22 November 2012 the Kraków District Court discontinued the proceedings on the grounds that the interim contact order of 22 November 2010 was no longer in force. 34. The court-appointed guardian submitted two reports to the Kraków District Court, dated 20 and 29 October 2012. She noted in the reports that the contact arrangements set out in the latest interim contact order were not being enforced. From May 2012 the father had only been able to see his daughter for a few minutes at occasional meetings. In the guardian’s opinion, the father was ready and able to take care of his daughter and organise interesting activities for their meetings. However, when questioned by the guardian, N. had been unenthusiastic about seeing her father and had said only negative things about him. The guardian concluded that a family assessment at the RODK was required. 35. Meanwhile, the applicant lodged numerous applications for a forcible removal of N. for various visits (in May, July and August 2012, and in February 2013). The Kraków District Court issued orders for a forcible removal of the child by the guardian on 15 May 2012 (for 1 July 2012), on 13 December 2012 (for 23 December 2012) and on 6 March 2013. In the latter decision, the court stressed that under no circumstances should physical force be used when collecting N. as that would be against her best interests. 36. On the first occasion, the guardian found that E. was not living at the address she had submitted to the court and he was therefore unable to collect the applicant’s daughter. On the two later occasions, the guardian tried to mediate between the parents and talk to the child in order to make her change her mind, but the child refused to go with the father. 37. During the divorce proceedings, both the applicant and E. asked the police to intervene on several occasions. In particular, on 3 September 2011 the applicant arrived at E.’s home to collect N. However, N. was crying and refused to go with him. E. called the police because the applicant was allegedly behaving in an aggressive manner. On 25 October 2011 the police again intervened at E.’s home. On that occasion, E. refused to allow the applicant to take N. for a court-scheduled contact visit as the child was allegedly afraid of him. 38. On 20 February 2012 the applicant complained to the Kraków-Nowa Huta District Court that the mother had failed to comply with the interim contact order and asked the court to order her to give an undertaking related to her behaviour (odebranie przyrzeczenia określonego zachowania). 39. A hearing planned for 25 April 2012 was adjourned owing to the absence of both parents. The following hearings took place on 20 July 2012 and 23 August 2012. 40. On 23 August 2012 the Kraków-Nowa Huta District Court dismissed the applicant’s application because the interim contact order was no longer in force. That decision was quashed on appeal on 30 January 2013. The Kraków Regional Court held that the District Court had focused on the application to fine E. and had failed to consider the applicant’s other requests. 41. On 28 February 2013 the Kraków-Nowa Huta District Court again discontinued the proceedings relating to the applicant’s application to impose a fine on the mother because the interim contact order was no longer in force after the divorce judgment had become final. As of the date of the submission of the Government’s observations to the Court, the remainder of the applicant’s request (proceedings for the mother to give an undertaking) was still pending. 42. On 9 August 2012 E. applied for a change of the access arrangements which were specified in the divorce judgment. She submitted that N. did not want to stay overnight at the applicant’s house. 43. On 1 October 2012 the Kraków-Nowa Huta District Court issued an interim contact order and allowed E.’s request. The court ruled that the applicant could meet his daughter every other Sunday between 2 p.m. and 6 p.m. The court held that the modification of the access arrangements was in the best interests of the child at that moment and that it was essential to rebuild the emotional ties between N. and the applicant. 44. On 2 October 2012 the court ordered another local assessment and an examination of the parents and the child by the RODK experts. 45. On 3 December 2012 a psychologist submitted his opinion to the court. The expert stated that the weakening of the emotional bond between the applicant and N. had been caused by a series of events. Those were, in particular, the applicant’s arrest in N.’s presence and his subsequent detention on remand; the applicant’s new relationship and new child; the applicant’s attempt to enforce the contact order, without any regard to N.’s needs; and the escalation in the conflict between E. and the applicant. The expert concluded that family therapy was needed in order for family ties to be re-established. In addition, changes to contact arrangements, such as an increased frequency of visits, were not in the child’s best interests at that time. 46. At a hearing held on 10 December 2012, the applicant informed the court that the day before, when he had arrived to see his daughter, she had not wanted to go with him. Apparently, N. had gone outside to talk to the applicant but when she had seen M.T. (his new partner) she had returned home crying and had refused to go with her father. In reply to a question from the court whether he would participate in family therapy, the applicant stated that he would have to think about it, as in his view the problems with enforcing the contact arrangements were the mother’s fault. 47. On 11 January 2013 the Kraków Regional Court allowed the applicant’s appeal against the interim order of 1 October 2012. It considered that the access arrangements specified in the District Court’s contact order had gone beyond what the mother had requested in her application. 48. On 1 March 2013 the RODK submitted its opinion to the court. Firstly, the experts observed that both parents loved N. and were able to attend to her needs. The father was determined to have a place in her life and play an important role. The mother had not been right to cut off contact between N. and her father. While she claimed that she had not obstructed the contact arrangements, she was not aware that her passive approach and clear animosity towards her ex-husband had impeded father-daughter contact. The experts stressed that N. had a strong emotional bond with the mother and remained under her influence. She did not feel loved by her father and was afraid of having contact with him. The experts concluded that N. was not able to cope with the emotional consequences of the conflict between her parents and that family therapy was indispensable. Furthermore, despite her negative reaction to the applicant, she should have contact with him. However, contact visits should not take place in the mother’s presence as that would increase N.’s negative attitude towards her father and prevent her from re-establishing a bond with him. Contact meetings should take place on neutral ground in the presence of a neutral person. 49. On 24 April 2013 the Kraków District Court issued a contact order. According to that decision, the applicant could meet N. every second Sunday between 3 p.m. and 6 p.m., with the exception of the first week of the winter school holidays and the period between 15 July and 15 August. In addition, he could see N. on the first day of Easter between 3 p.m. and 6 p.m., and on 24 December every even year and on 26 December every odd year. The court held that contact meetings should take place in the presence of a court-appointed guardian.