FOURTH SECTION

CASE OF P.F. v. POLAND

(Application no. 2210/12)

JUDGMENT

STRASBOURG

16 September 2014

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of P.F. v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
	Ineta Ziemele, President,
	Päivi Hirvelä,
	Ledi Bianku,
	Nona Tsotsoria,
	Paul Mahoney,
	Krzysztof Wojtyczek,
	Faris Vehabović, judges,
and Françoise Elens-Passos, Section Registrar,
Having deliberated in private on 26 August 2014,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 2210/12) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr P.F. (“the applicant”) on 4 January 2012.
2.  The applicant was represented by Ms M. Gąsiorowska, a lawyer practising in Warsaw. The Polish Government (“the Government”) were represented by their Agent, Mrs Justyna Chrzanowska of the Ministry of Foreign Affairs.
3.  The applicant alleged, under Article 8 of the Convention, that the Polish authorities had failed to take effective steps to enforce his right of contact with his daughters.
4.  On 24 September 2012 the application was communicated to the Government. Furthermore, on 26 August 2014 it was decided to grant the applicant ex officio anonymity under Rule 47 § 4 of the Rules of Court.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1963 and lives in Warsaw.
A.  Access arrangements
6. The applicant and A.W. were in a relationship that started in May 2003. On 13 April 2004 their twin daughters were born (A. and J.). Subsequently, in February 2005, the applicant and A.W. separated.
7.  On 2 November 2007 the applicant lodged a motion with the Warsaw Mokotów District Court (Sąd Rejonowy) for the establishment of contact and an interim contact order.
8.  At the same time A.W. lodged a motion with the Warsaw District Prosecutor alleging that the applicant had sexually abused A. and J. On 8 January 2008 the prosecutor informed the Warsaw District Court about the allegations of sexual abuse. The court ordered a social enquiry report (wywiad środowiskowy) into the case, which was conducted on 9 February 2008. On 19 February 2008 the prosecutor instituted a criminal investigation into the allegations of sexual abuse.
9.  On 21 January 2008 the Warsaw Mokotów District Court issued an interim contact order. Under the terms of that order, the applicant was allowed to visit the children every other Sunday between 10 a.m. and 2 p.m.
10.  On 28 March 2008 the court stayed the custody proceedings as the criminal proceedings into the alleged sexual abuse were pending.
11.  Meanwhile, on 15 June 2008 the Warsaw District Court of its own motion instituted proceedings concerning the limitation of the applicant’s custody rights.
12.  During the course of the criminal proceedings, the prosecutor obtained two expert reports and heard a number of witnesses. On 31 October 2008 the prosecution discontinued the criminal proceedings into the allegations of sexual abuse on the grounds that there was not enough evidence that the alleged offences had been committed. The court-appointed expert established that A. and J. had not demonstrated the psychological symptoms of a sexually abused child. However, according to a private expert opinion provided by A.W., the facts of the case demonstrated that the children had been sexually abused. A.W. appealed against the decision to discontinue the proceedings. The prosecutor’s decision was upheld by the Warsaw Mokotów District Court.
13.  On 20 January 2009 the Warsaw Mokotów District Court resumed the proceedings for the establishment of contact. At the same time it also resumed the proceedings for limitation of the applicant’s custody rights.
14.  On 10 June 2009 the District Court modified the interim contact order, allowing the applicant to see his daughters every Saturday between 9 a.m and 6 p.m. in their home. The court also ordered A.W. to set a new time in case a Saturday visit was not possible. Both parties lodged interlocutory appeals. They were dismissed on 9 November 2009.
15.  On 3 September 2009 the applicant submitted a report to the court indicating that the mother had failed to comply with the terms of the access arrangements. The applicant’s letter also contained a description of several visits that had taken place between May 2008 and August 2009.
16.  On 23 December 2009 the mother applied for a change to the access arrangements. She asked the court to order visits every two weeks for four hours.
17.  On 24 February 2010 the Warsaw Mokotów District Court again modified the interim contact order, allowing the applicant to visit his children every Saturday between 10 a.m. and 2 p.m. in their home. The court also ordered that the parents and children be examined by experts in the Regional Family Consultation Centre (Rodzinny ośrodek diagnostyczno-konsultacyjny) (“RODK”). The court also ordered a further expert opinion.
18.  The meeting scheduled with RODK for June 2010 did not take place because the daughters were ill. The next meeting took place on 20 September 2010. According to the expert opinion, the daughters were drawn into the parents’ conflict by their mother. Both daughters sought contact with their father and wished to visit him in his home. The experts recommended therapy involving both parents and children.
19.  The opinions of RODK and of the court’s expert were submitted to the court on 22 October 2010 and 7 February 2011. Following the change of the presiding judge, a hearing date was set for 2 March 2011.
20.  Subsequently, the applicant applied for a change of the access arrangements. On 9 March 2011 the court issued yet another interim contact order and ruled that the applicant could meet his children every other Saturday and Sunday between 10 a.m. and 4 p.m. outside their home. The court considered that there was an emotional bond between the applicant and his daughters and in order to preserve it, it was important that the contact take place outside the children’s home. The court further referred to the expert opinion of W.B., who confirmed that A. and J. had not demonstrated symptoms of being victims of sexual abuse. However, the mother refused to comply with this order and lodged an appeal. On 25 July 2011 the Warsaw Regional Court upheld the first-instance decision.
21.  Subsequently, A.W. cancelled most of the visits on the grounds that the children had been away and from 10 September 2011 she refused all visits.
22.  On 7 October 2011 A.W. applied for modification of the access arrangements. Her motion was dismissed by the Warsaw Mokotów District Court on 24 October 2011.
23.  During a hearing held on 11 October 2011, A.W. again applied for a change of access arrangements. She agreed to respect the interim order of 9 March 2011, however she made a request to the court that the contact should take place in the presence of the children’s babysitter or a court-appointed guardian. During that hearing the court heard evidence from the expert W.B., who confirmed that he did not consider that A. and J. demonstrated behaviour typical of children who had been sexually abused. He based his opinion on an analysis of the court files and a VHS recording of the children’s interview.
24.  On 16 December 2011 the Warsaw Mokotów District Court gave a final decision in the case. It ordered that the applicant could meet his children every other Saturday and Sunday between 10 a.m. and 4 p.m. The visits would take place in the children’s home with the mother present and in the applicant’s home with the presence of a court-appointed guardian. The court considered that the applicant should be allowed to meet his daughters outside their home and without the mother’s presence since the girls needed contact with their father. However, the court also stressed that, because the applicant’s contact with his daughters had not been regular, he did not know much about them. The applicant appealed.
25.  After February/March 2012, the applicant was again able to exercise his right of contact with his daughters on a weekly basis, every Saturday between 9 a.m. and 1 p.m. at A.W.’s home.
26.  On 29 May 2012 the Warsaw Regional Court quashed the Warsaw District Court’s decision. The court held that the proceedings concerning the limitation of the applicant’s custody rights should not have been joined with the access proceedings. In addition, due to different requirements concerning the composition of the court in both cases, the District Court had sat in an incorrect formation and the proceedings were null and void.
27.  At a hearing held on 30 November 2012 both the applicant and A.W. testified. The applicant submitted that after their separation in 2005 the contact with his children had been irregular. In September 2007 A.W. (who is an actress) had participated in a live TV show and the girls had stayed at the applicant’s home every Saturday and had been collected by their mother on Sunday morning. Once the TV shows were finished at the beginning of October 2007, the applicant had wished to continue this arrangement, however A.W. disagreed. Consequently he lodged his application with the District Court. He stressed that after the court had delivered its first interim order (see paragraph 9 above), many of the visits had not taken place since A.W. had been absent for the weekend. The applicant further submitted that the interim order of 9 March 2011 (see paragraph 20 above) had never been enforced because whenever he had come to collect the children either A.W. had not been at home or she had refused to open the door. Lastly, the applicant confirmed that between September 2011 and February 2012 he had not seen his children at all. Since March 2012 he had been visiting his daughters every Saturday for 4 hours at their home.
The children’s mother A.W. confirmed to the District Court that between 2005 and September 2007 she had allowed the applicant to contact their daughters on many occasions. However, after she discovered that the applicant might have abused her daughter A., she had prohibited all contact. The contact had restarted in January 2008. She had never complied with the order of 9 March 2011 since she had been concerned about her daughters’ wellbeing. She further informed the court that she was planning to move to Gdansk with the daughters and her new partner.
28.  On 3 December 2012 the Warsaw District Court gave its decision. The court ordered that the applicant could meet his children every other Saturday and Sunday between 10 a.m. and 4 p.m. The visits would take place outside the children’s home and without the presence of their mother. In addition, he could spend Christmas with them every odd year and Easter every even year and also parts of the summer and winter holidays. However, the applicant was only allowed to visit his daughters between 10 a.m. and 4 p.m. and they were not allowed to stay overnight at his home.
29.  Both parties appealed.
B.  Enforcement proceedings
30.  The applicant instituted proceedings for enforcement of the interim contact orders and made several applications for fines to be imposed on A.W. under Article 1051 of the Code of Civil Procedure.
31.  On 23 November 2009 the applicant lodged a motion for the imposition of a fine on A.W. for failure to comply with the access arrangements as specified in the interim contact order of 10 June 2009.
32.  On 17 May 2010 the Warsaw Mokotów District Court ordered A.W. to enforce the interim contact order of 27 February 2010 within 30 days, on pain of payment of a fine of 500 Polish zlotys (PLN).                                                   The court established that initially the contact had taken place regularly, but this had been in accordance with the terms of the previous interim contact order of 21 January 2008 (every other Saturday from 10 am to 2 pm instead of every Saturday from 9 am to 6 pm). Such an arrangement had resulted from the interpretation given to A.W. by the lawyers from the Ombudsman’s Office, who informed her that the new interim contact order would be effective only once it had become final. The court further observed that the contact had been regular; most of the visits were shortened or cancelled by the applicant and not by the mother. Lastly, the court ordered the mother to comply with the interim order of 27 February 2010.
33.  On 24 August 2010 the applicant lodged a motion for imposition of a fine on A.W. He submitted that she had failed to comply with the order of 17 May 2010.
34.  On 15 March 2011 the Warsaw Mokotów District Court discontinued the enforcement proceedings. The court held that the interim contact order had been modified in the meantime (on 9 March 2011) and there was therefore no need to deliver a decision in the present set of proceedings. The applicant appealed, asking the court to impose a fine on A.W. His appeal was dismissed by the Warsaw Regional Court on 11 August 2011. The court repeated the reasons given by the District Court and held that the interim order of 10 June 2009 had been replaced by a new interim order of 9 March  2011.
35.  In November 2012 the applicant lodged a new motion for the imposition of a fine on A.W.
36.  On 4 January 2013 the court imposed a fine on A.W.
II.  RELEVANT DOMESTIC LAW AND PRACTICE
A.  Visiting rights
37.  Under Article 106 of the Family and Custody Code (Kodeks rodzinny i opiekunczy), a final court decision as to parental responsibility and contact arrangements can be modified at any time if the interests of the child so require. This can be done pursuant to an application by either parent or by the court acting of its own motion.
38.  Pursuant to Article 730 of the Civil Procedure Code (Kodeks Postępowania Cywilnego) (“CCP”) a party can ask the court to issue an interim order in order to secure a claim concerning contact arrangements, for instance.
B.  Enforcement of contact arrangements
39.  If a parent who has been ordered by a court decision to respect the other parent’s access rights refuses to do so, that access rights decision will be liable to enforcement proceedings. Until August 2011, the general provisions of the CCP on the enforcement of non‑pecuniary obligations were applicable to the enforcement of court decisions concerning parental rights or access rights.  If a court had ordered a parent exercising his or her custody rights to ensure the other parent’s access to a child, Article 1050 of the CCP was applicable in respect of the enforcement of this obligation. This article provided:
“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 the motion of a 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 ...
2. If the debtor fails to comply with this obligation, further time‑limits may be fixed and further fines may be imposed by a court.”
40.  On 13 August 2011 certain amendments to the CCP entered into force and Chapter 6 on “Cases concerning execution of contact with a child.” was added. Articles 59815 to 59821 provided for a separate procedure for imposing a fine on a parent who fails to comply with access arrangements.
THE LAW
ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
41.  The applicant complained that the Polish authorities had failed to take effective steps to enforce his right of contact with his daughters. He alleged a violation of Article 8 of the Convention, which reads:
“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.
2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
42.  The Government contested that argument.
A.  Admissibility
43.  The Government submitted that the applicant had not exhausted the remedies available under Polish law in that he had lodged the application with the Court without waiting for the outcome of the proceedings concerning contact arrangements, and the application was therefore premature.
44.  The applicant submitted that while the contact proceedings were pending, the interim contact orders had not been executed and no fines had been imposed on A.W.
45.  The Court observes that in the present case the applicant did not object to the contact arrangements as specified in several interim orders (see paragraphs 9, 14, 20, 24 and 28 above). He maintained only that the Polish authorities had failed to take effective steps to enforce his right of contact with his daughters. In this respect the Court notes that the applicant had initiated enforcement proceedings and on several occasions had asked the domestic courts to fine A.W. for failure to comply with the access arrangements (see paragraphs 30, 31, 33 and 35 above).
Against this background, the Court concludes that the applicant did everything that could reasonably be expected of him to exhaust the national channels of redress. The Court accordingly dismisses the Government’s objections.
46.  The Court notes that the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
1.  The parties’ submissions
(a)  The applicant
47.  The applicant submitted that despite the discontinuance of the criminal proceedings, the Warsaw District Court had treated him as a “suspect” and had limited his custody rights and the times when he had been allowed to meet his children. He stressed that the domestic court had been aware that the mother had denied contact with the children for long periods, but nothing had been done in order to facilitate the contact. No fine had been imposed on A.W. until January 2013. In addition, the District Court had not informed the mother in any way about her obligation to comply with its orders. There had been delays in the proceedings for the establishment of contact and in the enforcement proceedings. The proceedings concerning his contact rights had been lengthy, and the District Court heard the same experts and witnesses. In addition, due to the incorrect composition of the District Court, the first-instance proceedings had been declared void by the Regional Court and had to be repeated.
(b)  The Government
48.  The Government submitted that the authorities had taken all the appropriate steps that could reasonably have been demanded in the circumstances of the applicant’s case. They argued that the applicant had been able to exercise the right of contact with his daughters on a regular basis for most of the time since his separation from A.W., albeit with certain interruptions at the end of 2007, between 10 June and 9 November 2009, between 9 March and September 2011 and after September 2011.
49.  The Government stressed that there had been no contact between October 2007 and 21 January 2008, after the mother had discovered the alleged inappropriate behaviour of the applicant, amounting in her opinion to sexual abuse. In addition, after 9 March 2011, when the court had authorised unsupervised visits outside the children’s home, A.W. had also refused any visits without her presence, owing to fear for her children’s safety.
50.  The Government were of the opinion that the proceedings had been swift and the authorities had conducted them in a diligent manner. There had been no periods of inactivity. The proceedings had been resumed immediately after the criminal proceedings against the applicant had been discontinued. Several expert opinions had been obtained, including an opinion from the Regional Family Consultation Centre (RODK), and local inquiries had been conducted.
51.  Lastly, the Government noted that a fine of PLN 500 had eventually been imposed on A.W. The court imposing the fine stressed that contact had taken place on a regular basis, but not in full compliance with the interim access order.
2.  The Court’s assessment
(a)  General principles
52.  The relationship between the applicant and his daughters amounted to “family life” within the meaning of Article 8 § 1 of the Convention. This has not been disputed.
53.  The Court reiterates that the fundamental object of Article 8 is to protect the individual against arbitrary action by public authorities. There are also positive obligations inherent in effective “respect” for family life, however. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, and in both contexts the State enjoys a certain margin of appreciation (see, among other authorities, Dąbrowska v. Poland, no. 34568/08, § 44, 2 February 2010).
54.  The Court has repeatedly held that in matters relating to child custody the interests of the child are of paramount importance. The child’s best interests must be the primary consideration (see, to that effect, Gnahoré v. France, no. 40031/98, § 59, ECHR 2000-IX) and may, depending on their nature and seriousness, override those of the parents (see Sahin v. Germany [GC], no. 30943/96, § 66, ECHR 2003-VIII). In particular, a parent cannot be entitled under Article 8 of the Convention to have measures taken which would harm the child’s health and development (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 169, ECHR 2000-VIII, and P., C. and S. v. the United Kingdom, no. 56547/00, § 117, ECHR 2002-VI).
55.  The Court’s case-law has consistently held that Article 8 includes both the right for a parent to have measures taken with a view to his or her being reunited with the child and an obligation for the national authorities to take measures to facilitate that reunion, in so far as the interest of the child dictates that everything must be done to preserve personal relations and, if and when appropriate, to “rebuild” the family; the State’s obligation is not one as to results, but one as to means (see, among other authorities, Ignaccolo-Zenide v. Romania, no. 31679/96, § 94, ECHR 2000‑I; Nuutinen v. Finland, no. 32842/96, § 127, ECHR 2000‑VIII; Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299‑A; Gnahoré, cited above, § 59, ECHR 2000‑IX; Nistor v. Romania, no. 14565/05, §§ 70, 109, 2 November 2010; and Cristescu v. Romania, no. 13589/07, § 57, 10 January 2012). This applies not only to cases dealing with the compulsory taking of children into public care and the implementation of care measures (see, among others, Olsson v. Sweden (no. 2), judgment of 27 November 1992, Series A no. 250, pp. 35-36, § 90) but also to cases where contact and residence disputes concerning children arise between parents and/or other members of the children’s family (see Hokkanen, cited above, § 55, and Zawadka v. Poland, no. 48542/99, § 55, 23 June 2005).
56.  In such cases the obligations of the national authorities are not, however, absolute. The key consideration is whether those authorities have taken all the appropriate steps for facilitating such contact as can reasonably be demanded in the particular circumstances of each case (see, mutatis mutandis, Hokkanen, cited above, § 58). Another important factor in proceedings concerning children is that time takes on a particular significance, because there is always a danger that any procedural delay will result in the de facto determination of the issue before the court (see W. v. the United Kingdom, judgment of 8 July 1987, Series A no. 121, pp. 28‑29, §§ 62‑64).
57.  The Court notes that there is a broad consensus – in international law, too – in support of the idea that in all decisions concerning children, it is the latter’s best interests that must be paramount (see, among many other authorities, Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 135, 6 July 2010).
(b)  Application of the above principles to the present case
58.  The decisive question in the present case is whether or not the Polish authorities took all the appropriate steps that can reasonably be demanded to facilitate the enforcement of the contact arrangements as specified on 21 January 2008, 10 June 2009, 24 February 2010, 9 March 2011 and 3 December 2012 (see paragraphs 9, 14, 17, 20 and 28 above). According to the access orders, the applicant was firstly authorised to meet his daughters in their home every other Sunday, then every Saturday and subsequently every other Saturday and Sunday outside their home.
59.  In this respect the Court first notes that the applicant and A.W. separated in 2005, when A. and J. were less than a year old. Although the applicant and A.W. initially managed to reach an agreement on a contact schedule, problems arose soon afterwards with regard to its implementation (see paragraph 27 above).
60.  The difficulties in arranging contact were admittedly in large measure due to the animosity between the applicant’s former partner and the applicant. Moreover, for some time the applicant himself failed to undertake effective steps in order to improve his contact with his daughters, with many visits being cancelled or shortened at his request (see paragraph 32 above). The Court is mindful of the fact that contact and residence disputes are by their very nature extremely sensitive for all the parties concerned, and it is not necessarily an easy task for the domestic authorities to ensure enforcement of a court order where the behaviour of one or both parents is less than constructive. In the present case the conflict between the applicant and the children’s mother made it particularly difficult for the domestic authorities to take action to fully enforce the applicant’s right to contact.
61.  The Court notes that while there were indeed periods when the applicant’s contact with his children was irregular – as admitted by the Government – there were also two periods when no contact took place, in particular between October 2007 and January 2008 and between September 2011 and February 2012 (see paragraphs 27, 48-49 above). However, the Court observes that during the first period the applicant was involved in proceedings relating to the alleged sexual abuse of his children. While none of the court-appointed experts was able to confirm that the children had in fact been sexually abused, an expert appointed by A.W. maintained that they had suffered such abuse (see paragraph 12 above). In this respect the Court reiterates that it is not seeking to substitute itself for the domestic authorities in the exercise of their responsibilities as regards parental authority, but rather to review under the Convention the decisions taken by those authorities in the exercise of their power of appreciation (see Olsson, cited above, § 68).
62.  The Court considers that the domestic authorities had an obligation to ensure enforcement of the contact arrangements, since it is they who exercise public authority and have the means at their disposal to overcome problems standing in the way of execution. In this respect the Court notes that the applicant’s enforcement request eventually led to the District Court’s order to the mother – on 17 May 2010 – to comply with the access arrangements and to the imposition of a fine on 4 January 2013 (see paragraphs 32 and 36 above).
63.  In the light of the foregoing and in view of the margin of appreciation afforded to the national authorities, the Court considers that the latter’s handling of the applicant’s case had due regard to the best interests of the children in question and of the family as a whole, while taking all the steps to enforce the applicant’s contact rights which could reasonably have been demanded in the very difficult situation at hand.
Accordingly, in the circumstances of the case there has been no violation of Article 8 of the Convention.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Declares the application admissible;

2.  Holds that there has been no violation of Article 8 of the Convention.
Done in English, and notified in writing on 16 September 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Françoise Elens-Passos	Ineta Ziemele
	Registrar	President