J.L. AND M. H.-L. v. POLAND
Inadmissible
Nicolas Bratza
The applicants, Mr J.Ł. and Mrs M. H.-Ł., are Polish nationals, who were born in 1957 and 1959 respectively. They are married to each other. The first applicant is a physiotherapist and the second is a teacher. They live in Warsaw. In the proceedings before the Court the applicants chose not to be represented. The respondent Government are represented by Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 13 November 1998 the applicants signed an agreement with the Catholic Adoption Centre in Warsaw. Under the terms of the agreement they agreed to provide care to X, a boy born on 16 July 1998. The applicants were chosen as prospective adopters for X because of their professions since the child required special care on account of his health problems. In this connection, the applicants referred to the conclusions of a medical opinion of 30 October 1998 which stated that X showed disturbed physical development and slightly retarded psychomotor development. It was also recommended in the opinion that the child should be placed without delay with a caring adoptive family, which would create the conditions for his proper development. On 13 November 1998 E.K., the biological mother of X, was deprived of her parental authority for X. On the same day the boy began to live with the applicants. On 16 December 1998 the Warsaw District Court appointed a guardian (opiekun prawny) for X. On 25 January 1999 the applicants filed with the Warsaw District Court an application for the adoption of X. On 4 February 1999 E.K. requested the Warsaw District Court to restore her parental authority for X. As a result of this request the Warsaw District Court stayed the adoption proceedings on 8 February 1999. On 25 March 1999 the court held the first hearing at which it heard E.K. and X’s guardian. The next hearing was held on 15 June 1999. On an unspecified date in 1999 E.K. applied to the Warsaw District Court for interim measures. In particular, she asked the court to change the guardian of X and to grant her and her parents, J.K. and B.K., visiting rights. On 23 June 1999 the District Court rejected her application for interim measures. The court did not see any grounds for changing the guardian. It pointed out that X had been born with a serious neurological disorder and required physiotherapy on a daily basis. As for the request to grant visiting rights to E.K. and her parents, the court rejected it for the following reasons: “The application for interim measures does not contain any reasons for allowing [E.K.] and her parents to visit the child. The District Court considers that this request is not aimed at the well-being of the child but results from the change in the attitude of [E.K] and (...) her parents’ endeavours to obtain the legal custody of [X]. The evidence gathered shows that [E.K.] is still undergoing therapy. Getting back the child is a part of that therapy and would allow [E.K.] to return to normal life. The decision to allow [E.K.] and her parents to visit the child would require the return of the child to a child-care facility. Therefore, the child would be deprived of his present living conditions which provide him with proper physical and (...) emotional development. The child has been living in this environment for six months. (...)” On 21 September 1999 the Warsaw Regional Court (Sąd Okręgowy) dismissed E.K.’s appeal against the decision of 23 June 1999. The Warsaw District Court held hearings on 21 October, 18 November and 16 December 1999 and 9 February 2000. On 2 March 2000 the Warsaw District Court dismissed E.K.’s request to restore her parental authority for X. The court observed that since June 1997 E.K. had cohabited with a man who had fathered X. Her parents had not approved of that relationship. E.K. had concealed her pregnancy. She had not consulted a doctor and smoked. E.K. had been interested in continuing the relationship with her child’s father, who had, however, not accepted the child. When X was born, E.K. declared that she wanted to leave him in the hospital for subsequent adoption. In August 1998 the father of X had left E.K. and she had moved into her parents’ flat. She started psychological therapy and in December 1998 informed her parents about the birth of X. The court considered that E.K. was not emotionally ready to take care of a child. Moreover, her actions had been influenced by her parents. E.K. was responsible for the fact that there did not exist any emotional bonds between her and X. At the same time, X had strong emotional bonds with the applicants who provided him with very good living conditions. On 29 May 2000 E.K. appealed against this decision. On 13 July and 23 November 2000 the Warsaw Regional Court held hearings and on the latter date it quashed the decision of the Warsaw District Court and remitted the case for reconsideration. On 19 December 2000 the Warsaw District Court held the first hearing at which it decided to order opinions of two experts in psychology. The experts submitted their opinions on 2 March 2001. At the hearing held on 8 March 2001 the Warsaw District Court again dismissed E.K.’s request to restore her parental authority for X. At the same time the court decided that X should be placed in the foster family of J.K. and B.K. It pointed out that E.K. was not able to provide X with proper care. The court referred to expert evidence which showed that she was emotionally and socially immature and behaved like a child who needed care and who was not responsible for her actions. As for its decision to place X with E.K.’s parents the court was of the view that “it was justified to place the child in the foster family of the maternal grandparents since the advantages from growing up in a biological family exceeded the disadvantages resulting from the change of [X’s] environment.” E.K. appealed against the decision. On 23 May 2001 the Warsaw District Court refused the applicants’ standing in the proceedings for an application for the restoration of E.K’s parental authority. The applicants appealed, but their appeal was dismissed on 26 June 2001 by the Warsaw Regional Court. On 4 July 2001 the Warsaw District Court rejected the applicants’ appeal against its decision to place X with his biological grandparents, J.K. and B.K., since the applicants did not have standing in those proceedings. On 5 September and 4 October 2001 the court held hearings. At one of the hearings the Regional Court heard the applicants. On 18 October 2001 the Warsaw Regional Court allowed E.K.’s appeal against the decision of the Warsaw District Court and granted her parental authority for X. Basing itself on the expert opinions, the court established that there were at present no indications that E.K. should not be personally taking care of X. The court then stated: “An important issue, undoubtedly of the greatest significance, is to establish whether the wellbeing of [X] requires that he be returned to his biological mother. The interest of the child is the overriding factor in the instant case. According to the experts, whose opinions were followed by the District Court, a child will have the best conditions for its development in the biological family. Other forms of foster family are allowed only if the biological parents are unable or inept to care [for the child]. Obviously, every change in the environment of [X] might give rise to difficulties of adaptation; however, it is common knowledge that small children adapt quickly to new conditions. The Adoption Centre offers to help in this respect. The experts underlined that the removal of [X] to the biological family had to be carried out correctly; it did not have to create a shock for him. The pre-adoptive family, for which the separation would be extremely painful, declares that, to ensure the best for X, they will do everything to make the removal of X as painless as possible for him. The behaviour of the biological family ... shows their understanding that ... entering into X’s life must come gradually, consensually and in a manner accepted by both parties. The [applicants’ and E.K.’s] position on that issue lead [the court] to believe that the biological mother’s taking over the care of [X] would not create a shock for the child. In the light of the above, the court decided as in the operative part.” The decision was final. On 8 November 2001, X, who had been living with the applicants for three years and considered them as his parents, was taken away from them. On 30 January 2002 the Warsaw District Court discontinued the adoption proceedings. On 25 September 2002 the Warsaw District Court dismissed the applicants’ application to grant them visiting rights. The custody and adoption of children are regulated by the Family Code 1964 (Kodeks Rodzinny i Opiekuńczy). Article 111 of the Family Code provides as follows: “1. If parental authority cannot be carried out due to a permanent obstacle or due to fact that the parents abuse their parental authority or grossly neglect their duties with respect to children, the family court shall deprive the parents of their parental authority... 2. If the reasons for which deprivation of the parental responsibilities was ordered cease to exist, the family court may restore parental authority.” On 17 September 2004 the 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”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings. A more detailed rendition of the relevant domestic law provisions is set out in the Court’s judgment in Krasuski v. Poland, no. 61444/00, §§ 3446, ECHR 2005–... (extracts) and in Charzyński v. Poland (dec.), no. 15212/03, §§ 1223, ECHR 2005–....