CASE OF P.K. v. POLAND
No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
5. The applicant was born in 1978 and lives in Bychawa. 6. The applicant was married in 1999. In 2001 his wife gave birth to P. 7. In December 2001 the applicant filed for divorce with the Lublin Regional Court. In his petition he requested that the child should reside with his mother and that she should be given custody. He submitted that he was not P.’s biological father. 8. At the same time the applicant instituted a separate set of proceedings challenging his paternity in respect of P. In a subsequent decision his claim was dismissed as it had been established by DNA tests that the applicant was in fact the boy’s father. 9. On 6 May 2002 the applicant requested the court conducting the divorce proceedings to give him custody of the child, to rule that the child’s place of residence should be with him, and that the mother should be divested of her parental rights. The Government submitted that he had further requested that the child be placed in a public care institution. The applicant contested this. He argued that his intentions had been misconstrued. 10. On 28 October 2003 the court dissolved the applicant’s marriage. It found that both parties had been at fault in the breakdown of the marital relationship. It held that parental authority was to be exercised by both parents, and stipulated that the place of residence of P. was to be with the boy’s mother. The applicant was allowed to visit the child at his mother’s address and in her presence on every third Sunday of the month between 10 a.m. and noon. 11. In the written grounds of the judgment the court observed that the applicant’s conduct was open to criticism. It referred to the unsuccessful paternity challenge he had brought before the courts and expressed the view that he was not really interested in maintaining meaningful contact with his son. 12. The applicant appealed. On 18 May 2004 the Lublin Court of Appeal dismissed his appeal. The divorce judgment became final. 13. Subsequently difficulties arose as to compliance with the access order, as the mother persistently refused to respect it. 14. On 25 September 2006 the applicant instituted proceedings seeking to have the access arrangements specified by the divorce judgment enforced. On 29 November 2006 the court questioned him in connection with these proceedings. He did not remember when he had last seen his son. 15. The mother was questioned on 17 January 2007. She told the court that the applicant had come to see his son for the first time in 2006, just after she had requested an increase in the amount of the monthly maintenance payments. She was of the view that the applicant was not interested in the child. 16. By a decision of 28 June 2007 the Lublin District Court fixed a onemonth time-limit for the child’s mother to allow the applicant contact with P. on the terms stipulated by the divorce judgment. It held that she was to pay a fine of 600 Polish zlotys (PLN) in the event of continued failure on her part to comply with the access arrangements. 17. In July 2007 the applicant again requested the court to take measures to oblige the mother to cooperate and allow him contact with his child. On 25 September 2007 the Lublin District Court refused to grant the applicant an exemption from the obligation to pay court fees in respect of this request. 18. In October 2007 the applicant complained to the Lublin District Prosecutor about the mother’s conduct. He was informed in reply that issues of compliance with decisions of civil courts did not fall within the jurisdiction of the prosecuting authorities. 19. On 17 December 2007 the Lublin District Court imposed a fine on the mother in the amount of PLN 600 for her failure to allow the applicant contact with P., and set another one-month time-limit for her to comply with that order on pain of a fine in the amount of PLN 700. 20. On a further complaint by the applicant, by a decision of 9 April 2008 the same court ordered the mother to pay the fine of PLN 700 and set another one-month time-limit for her to comply with the access arrangements on pain of a further fine of PLN 800. 21. On 1 July 2008 the Lublin District Court appointed a court guardian (kurator) to supervise the execution of the access arrangements determined by the divorce judgment. It held that the guardian should accompany the applicant on each and every visit to his child under the schedule determined by that judgment. 22. On 26 August 2008 P.’s mother requested the court to restrict the applicant’s parental authority and to change the access arrangements by banning the applicant from contact with his son. 23. On 17 September 2008 the court ordered the mother to pay a fine of PLN 800 for her continued refusals to allow the child to see his father and set a new one-month time-limit for her on pain of a further fine in the amount of PLN 1,300. 24. On 22 September 2008 the applicant requested the court to rule that the child should move to his home and for the mother to be granted access rights. 25. On 25 September 2008 the court refused to examine the applicant’s new request for a fine to be imposed on the mother, having regard to its decision of 17 September 2008 (see paragraph 23 above). 26. On 21 December 2008 the Lublin District Court dismissed the applicant’s request of 23 September 2008 (see paragraph 25 above), finding that the child had good living conditions at his mother’s home and felt safe with her. The applicant did not appeal against this decision. 27. On 12 February, 5 March, 16 April and 10 December 2008 the applicant requested the Lublin District Court to take more vigorous enforcement measures. He submitted that he could not see his son and that the measures applied so far had failed. 28. On 26 January 2009 P.’s mother requested the Lublin District Court to divest the applicant of parental authority. She submitted that the applicant had for many years not been interested in the child and that the child was afraid of him as he had provoked a brawl at the school. 29. On 1 July 2009 the Lublin District Court authorised the courtappointed guardian to take the child from the mother to ensure compliance with the access arrangements so that his father could see him. 30. On 16 August 2009 the court-appointed guardian went with the applicant to the mother’s apartment to visit the child. No one answered the door. On 18 August 2009 the guardian complained to the prosecuting authorities about her failure to cooperate. 31. In September 2009 the applicant again requested the court to take more vigorous measures to ensure that he had effective enjoyment of his access rights. In reply on 16 September 2009 the Lublin District Court informed the applicant that the enforcement order of 1 July 2009 remained valid and that it was operational in respect of every new attempt he made to see his son. 32. On 20 September and 18 October 2009 the court-appointed guardian attended at the scheduled times to assist the applicant for the purposes of his monthly visits to see his son but the applicant failed to turn up for the visits. 33. On 28 October 2009 the applicant informed the court that on 16 August 2009 the court guardian had gone with him to the mother’s apartment. She had refused to open the door or let him see the child. The applicant submitted that the guardian had remained passive in the face of the mother’s defiance. Afterwards, the head of the court-appointed guardians had informed the applicant that no new attempts to assist him in seeing his son would be made, as the previous attempt had failed. He had also informed the applicant that he regarded his case as closed and that he had forwarded the case file to the court. 34. On 8 October 2009 the same court refused to hear a request by the applicant for enforcement of his access rights, referring to the valid decision given on 1 July 2008 (see paragraph 22 above). An identical decision was given by the same court on 12 January 2010 in respect of a fresh request by the applicant for assistance in the execution of the access arrangements. On 21 December the Lublin District Court refused to amend the access arrangements by deciding that the applicant’s son should live with him. 35. On 17 January 2010 the guardian accompanied the applicant. Again, no one answered the door to the mother’s apartment. The guardian called the police. They attended, but their intervention was to no avail as no one answered the door. The guardian again informed the prosecuting authorities about the mother’s conduct. 36. On 20 January 2010 the applicant made a new request for assistance. 37. On 29 March 2010 the court made a new enforcement order, identical to that of 1 July 2008 (see paragraph 22 above). In the written grounds for this order the court emphasised the mother’s uncooperative behaviour in respect of the access arrangements, and stated that the execution of the access arrangements necessitated close cooperation on the part of both parents, who were obliged to act in the child’s best interest. 38. On 6 April and 21 April 2010 the applicant again requested the court to assist him. On 18 April 2010 he failed to turn up for another visit, scheduled on that date. On 16 May 2010 the mother did not answer the door when the applicant, assisted by the court guardian, came to see the boy. The guardian again informed the prosecution about her obstructive behaviour. 39. On 20 June 2010 the mother again failed to open the door to the applicant, accompanied by the guardian and ultimately by the police. 40. On 29 June 2010 the applicant again requested the court to assist him. In reply, the court asked him whether his request was to be understood as a new request for assistance by court-appointed guardians in the execution of the access arrangements. The applicant replied that he had simply sought the court’s advice as to how he could deal with his situation, which remained unchanged as the mother remained uncooperative. 41. On 29 June 2010 the guardian determined that the enforcement proceedings in respect of the order of 29 March 2010 were to be closed, as the three-month period of validity of that period specified in Article 598.12 (a) of the Code of Civil Procedure had expired. 42. In July 2010 the applicant twice complained to the District Prosecutor about his situation. 43. On 18 July 2010 the applicant again sought unsuccessfully to see his son. The court-appointed guardian was not present, apparently because the applicant had failed to lodge a new request with the court for his assistance and the previous execution order had expired (see paragraph 41 before). The applicant called the police. They attended, but he did not succeed in seeing his son, because the police officers refused to assist him, having regard to the fact that the child was not at home at that time. The applicant requested that criminal proceedings be instituted against them on charges of abuse of official authority. His complaint was subsequently investigated. The internal enquiry was closed on 16 September 2009 as the officers’ conduct had not been aggressive or inappropriate. Subsequently, on 15 November 2010 the Lubartów District Prosecutor discontinued the investigation against the officers, having noted, inter alia, that the applicant’s son had not been at home on the material date. 44. On 19 and 26 July 2010, respectively, the applicant again requested the court and the court guardian to assist him in the enforcement of the access arrangements. He reiterated his request on 25 August 2010. In reply, on 4 October 2010 the court issued another order authorising the guardian to assist the applicant in the execution of the access arrangements with a view to addressing the mother’s defiance. 45. On 15 November 2010 the Lublin District Court dismissed the mother’s application for the applicant to be deprived of parental rights. It further amended the access arrangements specified in the divorce judgment. It limited the mother’s parental authority by assigning a guardian to supervise her in the exercise of her parental rights. The court further ordered the mother to attend family therapy in order to improve her communication with the child’s father. 46. In the written grounds of that decision the court noted that between 2001 and 2006 the applicant had shown no interest in his son and had failed to pay maintenance in the amount of PLN 270 per month. The mother had requested the bailiff to institute enforcement proceedings in respect of the maintenance. This decision became final on 23 December 2010. 47. On 21 November 2010 the guardian failed to attend to assist the applicant, as she was ill. On 19 December 2010 the applicant went to see his son accompanied by the guardian but no one answered the door. The guardian informed the prosecutor about the mother’s behaviour. 48. On 27 December 2010 the applicant again requested the court to ensure the mother’s compliance with the access arrangements, and requested the court to assist him. 49. On 4 January 2011 the guardian discontinued the enforcement proceedings, referring to the provisions of Article 598.12 (a) of the Code of Civil Procedure. 50. On 14 March 2011 the court again ordered a court guardian to take the child from the mother to ensure compliance with access arrangements. 51. On 17 April and 15 May 2011 the guardian accompanied the applicant to the visits planned for these dates. No one answered the door and the guardian informed the prosecutor about the mother’s conduct. 52. On 6 July and 9 November 2011 the Lublin District Court gave new decisions authorising the guardian to take the child from the mother to ensure compliance with the access arrangement on terms specified in those arrangements. On 17 July 2011 the applicant requested the court to divest the mother of her parental rights, referring to her persistent refusal to respect the access arrangements. The Lublin District Court requested an assessment by the RODK (Regional Family Consultation Centre) of the family’s emotional skills and their communication and parenting situation. In August, September and October 2011 the applicant again complained to the court about the mother’s failure to respect the access arrangements. On 21 December 2011 the court refused to impose a fine on her, having regard to the amendments to the Code of Civil Procedure which had entered into force in August 2011. 53. On 11 January 2012 the Lublin District Court imposed on the mother an obligation to pay PLN 1,000 to the applicant in punitive damages for each failure to comply with the access arrangements. 54. On 28 February 2012 the Regional Family Consultation Centre submitted its opinion to the court about the emotional ties between the mother, the father and the child, prepared for the purposes of the proceedings in which the applicant had requested the court to envisage that the mother be divested of her parental rights. The experts were of the view that the child’s father was focused on the enforcement of his rights. He was not taking into account the needs and expectations of his child. The experts pointed out the negative consequences for the child’s development of the father’s actions aiming at depriving the child’s mother of parental authority. They stressed the existence of strong emotional ties between the child and the mother and the lack of such ties between the father and his son. They noted the lack of willingness and readiness of the child to maintain contact with his father. The experts noted that the father had taken various steps to deprive the child’s mother of parental authority without taking the child’s feelings into consideration. On 16 April, 25 May and 9 July 2012 the applicant requested the Lublin Zachód District Court to order the mother to pay damages to him for her failure to respect the access arrangements. He subsequently withdrew the first request. The second was rejected for his failure to comply with the applicable legal requirements. Subsequently, the applicant supplemented his request of 9 July 2012 by referring to the mother’s failure to let him see his son during his monthly attempts to see his son in July, August, September and October 2012. 55. During the applicant’s visit in September 2012, P. asked his father to leave the apartment and told him that he was not wanted and not liked there. 56. The Government submitted that on 8 October 2012, during a hearing before the Lublin District Court, the applicant had stated that he had seen his son at the child’s mother’s residence in June, September and October 2012. The applicant contested this statement, arguing that he had seen his son only for several minutes on each occasion. 57. On 5 December 2012 the Lublin District Court, in reply to the applicant’s request of 9 July 2012, ordered the mother to pay PLN 2,100 to the applicant, consisting of PLN 300 for each previous failure to comply with the contact arrangements. The court pointed out that she had prevented the father from having contact with his son four times (in April, May, July and August 2012) and obstructed contact three times (in June, September and October 2012). The applicant appealed. Following his appeal, on an unspecified later date the court amended its own decision and imposed on the mother an obligation to pay PLN 7,000 to the applicant in damages for her failure to comply with his access rights (PLN 1,000 for each occasion of noncompliance). 58. On numerous occasions the applicant and later also the court-appointed guardian, acting on the basis of Article 598.11 of the Code of Civil Procedure, repeatedly informed the Lublin District Prosecutor about the child’s mother’s obstructive behaviour and about her non-compliance with the access arrangements. 59. On 28 June 2006, 9 November 2009 the Lublin police and on 23 March and 30 September 2010, 3 March 2011 and 13 January 2012 the Lublin District Prosecutor discontinued the investigation, finding that the mother had no case to answer, as her failure to answer the door and allow the applicant to see his son did not amount to a criminal offence of unlawful restriction of liberty of a minor (brak znamion czynu zabronionego). The refusals were upheld by the competent court on, inter alia, 7 December 2010 and 26 January 2012. 60. On 27 May 2011 the Lublin District Prosecutor brought a bill of indictment before the Lublin – Zachód District Court against the mother on charges of unlawful restriction of liberty against a minor. On 23 September 2011 the Lublin District Court discontinued the proceedings, holding that a parent who exercised her or his parental authority could not be regarded as a perpetrator of an offence of unlawful detention of a minor under 15 years of age, even if that parent was acting contrary to the wishes or without the consent of the other parent.