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FOURTH SECTION

Application no. 78296/11
Karolina NADOLSKA and Bronek A. LOPEZ NADOLSKA
against Poland
lodged on 15 December 2011

STATEMENT OF FACTS

THE FACTS

The applicants, Ms Karolina Nadolska (“K.N.”) and her minor son, Bronek Alvaro Lopez Nadolska (“B.”), are Polish nationals who were born in 1973 and 2004 respectively and live in Warszawa. They are represented before the Court by Ms N. Olowska-Zalewska, a lawyer practising in Warsaw.

A.  The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

1.  The family situation prior to the applicants’ departure from Mexico

In 1997 the first applicant married a Mexican citizen, A.L.Z., in Washington D.C., the United States of America.

On 7 June 2004 in New York, she gave birth to a son, B., the second applicant.

In 2004 the family settled together in Mexico City.

The first applicant suffers from insulin-dependent diabetes. She has a degree in economics. She speaks fluent Spanish and English. In June 2008 she obtained Mexican citizenship. In Mexico City she had a paid job selling coffee to hotels and restaurants.

A.L.Z. is also an economist. He works as a political consultant. He is also an entrepreneur and a restaurant owner.

The second applicant suffers from respiratory allergies and genetic bronchial asthma. It appears that in Mexico City he was prescribed medicines and wore a hygienic mask outdoors. The child was attending a nursery school where he was learning Spanish and English. The boy spoke Spanish with his father and Polish with his mother.

A.L.Z. paid for complementary health insurance for his son and the first applicant.

On an unspecified date, presumably in June 2007, the first applicant and A.L.Z. decided to separate.

They signed a separation contract in which they agreed upon the following: (1) the child would live with his mother; (2) he would be taken to his father’s every Wednesday afternoon until Thursday morning and every weekend; (3) the parents would share equally the boy’s school holidays; (4) every month A.L.Z. would deposit on the first applicant’s Mexican bank account an unspecified amount of money toward child support and alimony; and (5) the child could leave the city and the country only with the consent of the respective non-accompanying parent.

The applicants moved into a new flat which was rented and paid for by A.L.Z. The flat was chosen by the first applicant. It was located in the best district of Mexico City.

The first applicant took good care of her son and A.L.Z. maintained regular contact with him, in accordance with the schedule in the separation agreement.

2.  The family situation after the applicants’ departure from Mexico

In the spring of 2009 A.L.Z. authorised the first applicant in writing to spend holiday abroad with their son from 2 May until 27 June 2009.

On 2 May 2009 the applicants left Mexico for Germany. Subsequently they came to Poland.

On 7 May 2009 the High Family Court in the Federal District of Mexico granted a divorce of the first applicant and A.L.Z. The court ordered joint-custody over the child, determined the residence of the child with the mother and approved the schedule of the father’s access according to the separation agreement between the parents. Moreover, the court ordered that every month A.L.Z. was to deposit on the first applicant’s Mexican bank account the total amount of 39,000 Mexican pesos (approximately EUR 2,200) towards alimony (55% of the above-mentioned sum) and child maintenance (45% of the above-mentioned sum).

On 12 May 2009 the first applicant informed her former husband that she had decided to settle in Warsaw with their child. She considered that the child had better opportunities of development in Poland and she expressed fears about the outbreak of swine flu in Mexico. A.L.Z. did not agree to his son’s stay in Poland and demanded that he be immediately returned to Mexico. A.L.Z. instituted in Poland proceedings under the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) (see point 3 below).

In September 2009 the second applicant started attending a nursery school in Warsaw. He was also signed up for private classes of Spanish and English and a number of leisure activities.

The boy was mentally well. He quickly adapted to the new environment. He was also in a good physical condition although he suffered from recurring throat infections because of his allergies and bronchial asthma.

In January 2010 A.L.Z. re-married.

In May 2010 the first applicant also re-married.

It appears that after the applicants’ departure from Mexico, A.L.Z. made occasional contributions to the complementary health insurance for his son.

It also appears that he made payments of child support and, until the first applicant’s marriage, of alimony. The applicant submitted that the payments were irregular and scarce. In addition, the money was deposited in her Mexican bank account to which she had a limited access in Poland (unspecified problems with her credit card, State-fixed limits on the amount and frequency of withdrawals etc.).

3.  The Hague Convention proceedings in Poland

On an unspecified date A.L.Z. lodged a motion with the Polish Government for returning his son to Mexico under the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”).

On 12 October 2009 this motion was registered with the Warsaw District Court (Sad Rejonowy).

On 19 January 2010 the Warsaw District Court ordered the first applicant to surrender her son within 30 days.

The domestic court found that the applicant had wrongfully removed and retained her son away from Mexico, the country in which the child had habitually resided (Article 3 of the Hague Convention). That led to the breach of custody rights attributed by the Mexican court to the child’s father, which he had effectively and properly exercised prior to the applicants’ departure from Mexico.

Moreover, the domestic court took note of the fact that the period of less that one year had elapsed from the date of the wrongful removal. Consequently, according to Article 12 of the Hague Convention it was unnecessary to examine whether the child was settled in the new environment.

The domestic court also observed that the applicant had not argued that the child’s father had not been exercising his parental rights and duties before or after the applicants’ departure from Mexico. On the contrary, she submitted that A.L.Z. had spent a lot of time with his son in Mexico and, since May 2009, he had spoken to him on the phone and via Skype. The Warsaw District Court also considered that the applicant had not demonstrated that the child, if returned to Mexico, was at a serious risk of suffering any physical or psychological harm or of finding himself in an otherwise intolerable situation within the meaning of Article 13 (b) of the Hague Convention. To that effect it was noted that the swine flu pandemic was a world-wide phenomenon, however, young people and children were not at a particular risk of contracting it. Moreover, even though Mexico City was the most polluted city in the world, the domestic court was convinced that A.L.Z. would make efforts to protect his son from any medical dangers. It was furthermore observed that, in any event, according to the divorce judgment, the applicant was to receive alimony and child support of a substantial amount, A.L.Z. was paying and intended to continue to pay for a complementary health insurance for his son and the child could live in the city outskirts or in a less polluted district.

Moreover, the Warsaw District Court found that the applicant had not demonstrated any circumstances which would allow for the application of Article 20 of the Hague Convention.

It was also noted that the domestic court in examining the case had been guided above all by the well-being of the child and the case-law of the Polish Supreme Court.

In defining the notion of a child’s well-being or interest, the Warsaw District Court referred to the founding principles of the Hague Convention, the 1989 Convention on the Rights of the Child and the jurisprudence of the Polish Supreme Court and of this Court. The domestic court concluded that the notion in question could not be construed in a free and instrumental manner for the benefit of only one party of the proceedings. To do otherwise would make the Hague Convention a dead and ineffective international document.

The Warsaw District Court concluded that in the circumstances of the case the well-being of the child did not make it necessary to dismiss the father’s motion for his return to Mexico.

The domestic court dismissed the first applicant’s motion to hear the child, as it was considered that at the age of 5 he had not yet reached a degree of maturity which would allow him to construe any reliable and rational opinion concerning the choice of the parent with whom he would like to live.

Likewise, the domestic court dismissed the first applicant’s motion to seek an expert opinion of the Family Consultation Centre (Rodzinny Osrodek Diagnostyczno-Konsultacyjny) on whether the well-being of B. would be threatened by his return to his father in Mexico without his mother because of his young age and his previous experiences. It was held that the first applicant had failed to specify to which “previous experiences” she referred. Moreover, the domestic court agreed that returning a young child to his father’s country without his mother would be a difficult experience for him. Nevertheless, as the first applicant stated, B. had already shown that he could easily adapt to the new environment when he had been taken to Poland. Lastly, the Warsaw District Court invoked the holding of the Supreme Court in the 1999 case no. 1 CKN 992/99 that the separation of the child from the mother could not, in principle, be an obstacle to returning the wrongfully abducted child to the country of his habitual residence. The fact that the first applicant took good care of her child after their departure from Mexico and that she had a proper emotional bond with her son was not an obstacle to the child’s return either. An unlawful situation caused by the child’s wrongful abduction could not be sanctioned by the abducting parent’s attempts to protect the child’s well-being during their stay away from the country of the child’s habitual residence.

The domestic court also dismissed the first applicant’s motion to seek an opinion of the director of B’s nursery school since it was not contested that the child had already settled in the new environment.

The Warsaw District Court observed that the obligation to surrender the child to his father did not mean that the child had to be separated from his mother. To that effect it was noted that the first applicant was a Mexican citizen, she spoke Spanish fluently, she knew how to function in the Mexican employment market since prior to her departure she had had a paid job selling coffee to hotels and restaurants and that she was bound to receive alimony from A.L.Z. The first applicant was therefore free to decide if she wanted to accompany her son in his return to Mexico.

The domestic court was of the opinion that there was no danger that the second applicant would suffer a serious psychological or physical harm regardless of whether he was to return to Mexico with or without his mother. It was stressed that the boy was no longer an infant requiring his mother’s constant care and that he could be well taken care of by his father.

Lastly, the Warsaw District Court did not find it established that the applicants did not have the health insurance in Mexico. On the other hand, it was considered that A.L.Z., who had submitted receipts of alimony and child support payments, had proved that he cared for the well-being of both his child and his former wife. It was also found that B. could still speak Spanish because he often spoke to his father over the phone and internet and took private language classes. The domestic court did not find it proved that there was a real risk that the child’s health would be in danger in Mexico.

The first applicant appealed.

She argued that B. had much stronger bonds with her than with his father and that he was perfectly settled in his environment in Poland. The first applicant submitted that she feared that if separated from her and returned to Mexico, the boy would sustain a serious and irreversible psychological damage. She also argued that because of her poor medical condition, namely insulin-dependent diabetes, the fact that she had a job and a new family in Poland, she could never settle in Mexico with her son. The boy could no longer speak Spanish and was having a hard time communicating with his father. He had also developed strong bonds with the first applicant’s new husband. Moreover, the first applicant submitted that her son, who had been diagnosed with respiratory allergies and genetic bronchial asthma, was not at all fit to live in the environment of Mexico City. She also complained about the lack of adequate medical treatment and health insurance in Mexico.

When the appellate proceedings were pending, the first applicant applied twice for the stay of the execution of the court’s order to return the child to Mexico.

On 19 February 2010 and on 26 May 2010 the Warsaw District Court dismissed the first applicant’s motions.

On 28 May 2010 the Warsaw District Court appointed a court guardian and authorised him to take the child away from his mother by force.

On 11 June 2010 the Warsaw Regional Court (Sad Okregowy) quashed the first instance decision and ordered re-examination. The Regional Court considered that the first-instance court had failed to examine whether the circumstances of the case satisfied the requirements of Article 13 (b) of the Hague Convention.

On 8 July 2010 the Warsaw District Court ordered that an expert opinion be prepared by the Family Consultation Centre on the questions of B’s relationship with his parents, the parents’ capacity to raise their son and on whether B’s return to his father in Mexico without his mother would cause a risk of his physical or psychological harm or would place him in an “intolerable situation”.

On 20 October 2010 the Warsaw Family Consultation Centre submitted to the Warsaw District Court an expert opinion containing the following conclusion:

“ 1.  ...The boy has an emotional bond with is mother, he has a sense of belonging to the family comprising his mother and her husband. The emotional bond with the father has been preserved, however, it is ambivalent. The boy desires to meet with his father but he sees his place with the mother.

2.  Both parents have emotional bonds with their child.

3.  Both parents have sufficient capacity to raise their child. It is true that since the child’s birth, it is the mother who has been more engaged into his care.

4.  Taking into the consideration the fact that the mother has played the first-plan role in the child’s life, B’s return to Mexico without her, could have negative effects on his psychological well-being and his emotional stability by making him lose the sense of security. It cannot be excluded that this kind of psychological harm could also cause a somatic damage, which could constitute an intolerable situation for the child.”

On 29 December 2010 the Warsaw District Court ordered the first applicant to surrender her son within 30 days.

The domestic court concluded that the risk of a psychological harm caused by the separation of the child from his mother, as described in the expert report prepared by the Warsaw Family Consultation Centre and his taking from the environment in which he had already settled, did not fall within the meaning of a “psychological harm” and an “intolerable situation” under Article 13b of the Hague Convention. In the court’s view, that provision had to be interpreted in a strict and narrow manner and the only situations which would allow for the stay of the abducted child in the receiving country with the accompanying parent, would be the risk of a serious physical, psychological or sexual abuse at the hands of the other parent or neglect by that parent because of his or her alcohol or drug addiction, his or her unemployment or inability to take care of the child.

The applicant appealed.

On 15 June 2011 the Warsaw Regional Court dismissed the appeal. The appellate court affirmed the findings of fact and of law made by the first-instance court.

On 27 July 2011 the Warsaw Regional Court confirmed that that judgment was final and binding and that the order to surrender the child issued on 29 December 2010 was to be executed.

On 12 October 2011 the Warsaw District Court assigned a court guardian to take the child away from the mother or any other accompanying person and to hand him over to his father in Mexico. In the subsequent weeks the boy’s school and other institutions were contacted by the guardian in order to enforce the surrender order.

The applicants’ representative informed the Registry that the second applicant is currently in hiding.

B.  Relevant International Law

The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction which has been ratified by Poland and Mexico, provides, in so far as relevant, as follows.

Article 3

“The removal or the retention of a child is to be considered wrongful where -

a)  it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

b)  at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

Article 4

The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.

Article 12

Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.

Article 13

Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -

a)   the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

b)   there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.

Article 14

In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognised or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.

Article 15

The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination.

Article 19

A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.”

COMPLAINT

The applicants complain under Article 8 of the Convention that the Polish courts’ decisions ordering B’s return to Mexico were contrary to his best interests because he the medical risks involved and the danger that the separation from his mother would cause him an irreparable and serious psychological harm.

QUESTIONS TO THE PARTIES

Has there been a violation of the applicants’ right to respect for their family life, contrary to Article 8 of the Convention?

In particular, is the interpretation of the notion of a “psychological harm” and an “intolerable situation” within the meaning of Article 13b of the Hague Convention as it is derived from the jurisprudence of the Polish Supreme Court and as it was applied by the domestic courts in this case, compatible with the requirements of Article 8 of the Convention and the notion of a “child’s well-being” within the meaning given in the Court’s case-law?