IWUC-BETCHER v. POLAND
Inadmissible
George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
1. The applicant, Ms Grażyna Iwuć-Betcher, is a Polish national who was born in 1961 and lives in Częstochowa. 2. The facts of the case, as submitted by the applicant, may be summarised as follows. 3. In 1993 the applicant married R.B. The couple had a son O., born on 10 April 1994. The family lived together until November 2002 when the applicant took O. and moved back to her old house. On the same day, after a scuffle with the applicant, R.B. took O. from her and from that time onwards maintained the actual custody over the child. 4. On 12 December 2002 the applicant filed a petition for divorce. At the Częstochowa Regional Court’s (Sąd Okręgowy) request, on 30 April 2003 three experts of the Family Diagnostics Centre (Rodzinny Ośrodek Diagnostyczno-Konsultacyjny, hereinafter: the Family Centre) gave an expert opinion, in which they pointed to O.’s clear entanglement in the strong marital conflict between the applicant and R.B. The experts observed that O. was being strongly influenced by his father and that many of his statements were “induced” statements deprecating the applicant whom the child perceived very negatively. They found the existing family situation to be detrimental to the child and proposed to separate him temporarily from both parents and place him in a health resort (sanatorium). They moreover advised the court to consider the supervision of the family situation by an appointed court guardian (kurator sądowy). 5. On 22 May 2003 the Częstochowa Regional Court specified the access arrangements, allowing the applicant to visit O. once a week for four hours at R.B.’s house and under the supervision of a court guardian. On 20 November 2003 the Katowice Court of Appeal (Sąd Apelacyjny) dismissed the applicant’s appeal, holding that the access arrangements specified by the Regional Court were reasonable. 6. At the court hearing held on 24 May 2004, an expert of the Family Centre recommended that the applicant’s contacts with O. take place in a neutral place instead of the father’s house. Consequently, on 23 August 2004 the Częstochowa Regional Court provisionally changed the access arrangements, allowing the applicant to meet O. on three consecutive Sundays in a fast-food restaurant under the supervision of a court guardian. Due to unspecified organisational problems, only one of the three planned meetings took place. 7. On 18 October 2004 the Regional Court permanently changed the access arrangements, allowing the applicant to see O. once a week for two hours in a fast-food restaurant under the supervision of a court guardian. On 9 December 2004 the Katowice Court of Appeal dismissed the applicant’s appeal, finding that the right of access was primarily the right of the child and not that of the applicant. The Court noted that the child apparently did not wish to see the applicant and pointed to the applicant’s lack of patience and her unwillingness to cooperate with the supervising court guardian. 8. At the hearing held on 18 April 2005, the court guardian informed the court that during the meetings in the restaurant O. had not wanted to see the applicant without his father’s presence. 9. At the Częstochowa Regional Court’s request, on 12 December 2005 the Family Centre prepared another opinion. The opinion stated that the reason for O.’s aversion to the applicant had been his father’s behaviour. The experts noted that the child was under the strong influence of his father and reacted hysterically to the applicant’s presence. They urged the court to suspend O.’s meetings with the applicant and to undertake steps aimed at improving their mutual relations. The opinion moreover recommended placing the child under psychological assistance and stated that the child’s father should be persuaded to participate in the meetings with a psychologist in order to correct his attitude. 10. On 6 January 2006 the applicant requested the court to change the access arrangements and allow her to meet O. at her own home. On 13 January 2006 the Regional Court dismissed her request, holding it to be premature, on account of the Family Centre’s recommendation that the applicant’s contacts with O. be temporarily suspended. The Regional Court noted that O. clearly did not wish to see his mother and that it would be contrary to the child’s best interests if the meetings were to take place at the applicant’s home. 11. On 14 March 2006 the Katowice Court of Appeal dismissed the applicant’s appeal. The Court of Appeal observed that the Regional Court should issue appropriate decisions in view of the expert findings indicating the child’s father’s incorrect parental behaviour. The Court of Appeal urged the Regional Court to consider changing the access arrangements and, in particular, to consider the possibility of allowing the applicant to meet her son without the father’s presence, under the supervision of the court guardian, in order to improve the relations between the applicant and the child. It further noted that it would be detrimental to the child’s emotional health if the existing situation were to persist. 12. On 13 June 2006 the Częstochowa Regional Court dissolved the applicant’s marriage without attributing the fault to either party. The court awarded custody rights to R.B., finding that O. demonstrated strong affection for his father who, in the court’s view, offered better prospects for the proper exercise of custody. The court restricted the applicant’s custody rights over O., holding her to have been an inept mother who in the past had largely neglected O.’s education. The Regional Court further decided that the access arrangements would be specified by the Public Psychological and Pedagogical Counselling Service (Publiczna Poradnia PsychologicznoPedagogiczna, hereafter: the Counselling Service) in Częstochowa. The divorce court also held that placing O. in a health resort (sanatorium) would only constitute a temporary remedy while putting him in a foster family would be contrary to his best interests, given his affection for, and dependence on, his father. 13. The applicant did not appeal against the divorce decision and it subsequently became final. 14. In March 2007 the Director of the Counselling Service informed the applicant that her weekly meetings with O. would be one hour long and take place on the premises of the Counselling Service. It appears that no psychologist has ever assisted in the meetings. 15. In June 2007 the Director of the Counselling Service requested the court to discharge the Counselling Service from the duty to organise the applicant’s meetings with O., due to the child’s and his father’s visible unwillingness to comply with the access arrangements. The Director explained that from the very outset the meetings had met with difficulties and that from 13 April 2007 onwards O. had no longer been coming to the meetings. 16. On 3 July 2007 the Częstochowa District Court (Sąd Rejonowy) ordered R.B. to comply with the access arrangements, on pain of a fine in the amount of PLN 500 (approx. EUR 125) being imposed on him. R.B.’s appeal was dismissed by the Częstochowa Regional Court on 6 September 2007. It appears that R.B. has since then complied with the access arrangements and brought O. to the meetings with the applicant. 17. On 28 August 2007 the applicant requested the court to fine R.B. once more for his non-compliance with the access arrangements. The applicant argued that O. would only briefly appear at the meetings and not talk to her, after which he would leave the Counselling Service and be driven home by his father or grandfather. 18. On 16 April 2008 the Częstochowa District Court dismissed her request, finding that R.B. had complied with the access arrangements by bringing O. to the meetings and that he could not be blamed for O.’s own reluctance to see the applicant. On 26 June 2008 the Częstochowa Regional Court dismissed the applicant’s appeal. In passing, the Regional Court expressed a view that the child was clearly being harmed, a circumstance which both parents – R.B. and the applicant alike – refused to admit. 19. On 18 March 2008 the Częstochowa District Court ex officio issued a temporary order on access arrangements, allowing the applicant to meet O. at her home every first Sunday of each month for three hours and for another three hours on Easter Sunday. The applicant’s appeal was dismissed by the Częstochowa Regional Court on 19 June 2008. 20. At the Częstochowa District Court’s request, on 27 November 2008 the Family Centre in Zawiercie issued another expert opinion. Without giving any excuse, the applicant did not appear at either of the two interviews with the Family Centre’s experts. The experts found that in the past several years the applicant had been absent from O.’s life and that O.’s attitude towards her was hostile. They noted that O. did not wish to see the applicant and they recommended a temporary suspension of their contacts. The experts moreover recommended that psychological assistance be given to O. with a view to analysing and rectifying his relations with the applicant. At the same time, they criticised the applicant for her inability to deal with her role as a mother and observed that her motivation for having access to her son appeared to be superficial. 21. On 9 December 2008 the Częstochowa District Court dismissed the applicant’s renewed request for changing the access arrangements. It noted that O. had come to the applicant’s home on several occasions and invited her out for a walk or for coffee but that the applicant, to O.’s disappointment, had shown no flexibility and insisted that the meetings only take place at her home. The District Court concluded that the applicant’s inflexible stance did not warrant changing the access arrangements. The applicant’s appeal was dismissed by the Częstochowa Regional Court on 12 March 2009. 22. At the applicant’s request filed on 8 August 2008, on 8 April 2009 the Częstochowa District Court ordered R.B. to comply with the access arrangements, on pain of a fine in the amount of PLN 500 (approx. EUR 125) being imposed on him, as the applicant had had no effective access to O. since 23 November 2008. 23. On 20 May 2009 the Częstochowa District Court ex officio changed the access arrangements, deciding that the venue of the applicant’s contacts with O. was to be a local café instead of the applicant’s house. The Court recognised that O. was disappointed with the applicant’s lack of flexibility as to the venue of the meetings and it acknowledged the findings of an expert psychologist, according to which O.’s attitude towards the applicant was now genuinely his own and no longer influenced by his father. The applicant’s appeal was rejected by the Częstochowa Regional Court on formal grounds on 22 October 2009. 24. On 4 August 2009 the Częstochowa District Court refused the applicant’s request to fine R.B. for non-compliance with the access arrangements, finding the applicant to be at fault for the unsuccessful meetings with O. on account of her bringing other members of her family to the meetings without seeking O.’s prior consent. The applicant’s appeal was dismissed by the Częstochowa Regional Court on 29 October 2009. 25. According to the applicant, O., who is now seventeen years old, currently does not come to the meetings with her or appears at the meetings in the café but stays for no longer than half an hour, instead of the two hours specified by the access arrangements. On several occasions, the applicant unsuccessfully requested the court to change the venue of the meetings with O. back to her house. 26. If the court obliges a parent exercising custody rights to ensure access by the other parent to the child, Article 1050 of the Code of Civil Proceedings (Kodeks postępowania cywilnego) is applicable to the enforcement of this obligation. 27. Article 1050 provides, in so far as relevant: “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 the 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 being imposed on him. 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.”