Application no. 4993/15
The European Court of Human Rights (First Section), sitting on 3 September 2019 as a Committee composed of:
Armen Harutyunyan, President,
Pere Pastor Vilanova, judges,
and Renata Degener, DeputySection Registrar,
Having regard to the above application lodged on 16 January 2015,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
1. The applicant, Mr B.S., is a German national, who was born in 1973 and lives in Bad Iburg. The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 4). He was represented before the Court by Mr W. Studziński, a lawyer practising in Wroclaw.
2. The Polish Government (“the Government”) were represented by their Agents, Ms J. Chrzanowska and, subsequently Mr J. Sobczak, of the Ministry of Foreign Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
(a) The applicant’s family status
4. The applicant was married to S.S., a Polish national. The couple lived in Germany together with S.S.’s daughter, M., a minor. In December 2010 the couple’s son, C., was born. C. has German and Polish nationality. The couple split up in July 2012.
(b) Criminal proceedings against the applicant
5. In 2012 S.S. lodged numerous criminal complaints and contacted various authorities, alleging that the applicant had harassed her and had sexually abused C. From September 2012 until her departure for Poland in July 2013 S.S. and the family were under the supervision of social workers from the local Youth Office. As stated in a letter from the Youth Office dated 4 November 2013, social workers reported that C. had no visible marks of sexual abuse by his father, and that the father was a caring, tender and cooperative parent.
6. On 1 November 2012 S.S. lodged a criminal complaint, submitting that on 1 July 2012 the applicant had assaulted her by painfully twisting her arms. On 11 September 2013 the Bad Iburg District Court acquitted the applicant of that charge, considering that the allegation was not sufficiently corroborated by any evidence. S.S. appealed, but later withdrew that appeal.
7. On an unspecified date in the second half of 2013 S.S. lodged criminal complaints with the Świdnica District Prosecutor, alleging that between 3 and 28 February 2013 the applicant had committed criminal offences by mistreating her two children, and had subjected her to physical violence. In respect of the former complaint, a criminal investigation was opened in Germany by the Osnabruck District Prosecutor. It was discontinued on 22 November 2013 on the grounds that S.S.’s allegations were not corroborated by any evidence obtained during the investigation. As to the latter complaint, on 11 September 2013 the Bad Iburg District Court acquitted the applicant.
(c) Proceedings before the family courts in Germany
8. It appears that on an unspecified date in August 2012 a German court declared that the applicant and S.S. were officially separated.
9. On 25 October 2012 the Bad Iburg District Court (Amtsgericht) appointed a guardian to represent C. in proceedings for custody and contact.
10. On 15 February 2013 the Bad Iburg District Court granted the applicant contact rights in respect of M. and C. The District Court authorised the applicant, inter alia, to take the children to his home every other weekend and also have them sleep there. The District Court considered that even if the applicant had physically attacked S.S. in front of M. in 2012, as submitted by S.S., that incident was of no relevance for the contact proceedings concerning M. and C. On the basis of evidence which included the testimony of M., the court found that the applicant had not been violent towards the children.
11. As established by the Świdnica District Court (Sąd Rejonowy), a Polish family court, in the course of the Hague Convention proceedings which are described below (see paragraphs 20-43 below), and as confirmed by the applicant, the father’s contact with C. was initially irregular and then ceased completely in March 2013, after having been obstructed by S.S. The applicant has not taken any legal steps to enforce his contact rights.
12. On 31 July 2013 the Bad Iburg District Court issued a residence order, granting the applicant the exclusive right to decide on where C. should reside. The District Court held that it was in C.’s best interests to live with his father. It relied on: a report submitted on 30 May 2013 by an expert from the Forensic Psychology Institute; medical certificates of 5 November 2012 and 22 July 2013 which stated that S.S. had been suspected of having had a psychotic episode; a police report of 1 August 2012; submissions of 17 May 2013 by the court-appointed guardian, who had recommended that C. should live with his mother provided that the latter cooperated with the child’s father; and correspondence with S.S. The Bad Iburg District Court thus found that S.S. had been hindering the applicant’s contact with C., that she had not been cooperative, and that she was possibly suffering from a psychiatric condition which she refused to treat. The decision also stated that S.S. rejected everyone who did not share her subjective fears that the children were in danger, including her own lawyer and the court-appointed guardian.
13. The two above-mentioned decisions were certified under the European Council’s Regulation no. 221/2003.
14. On 9 September 2013 the Bad Iburg District Court issued an interim order that C. should be immediately returned to the applicant.
15. On 2 December 2013 the Oldenburg Court of Appeal (Oberlandesgericht) dismissed an interlocutory appeal by S.S. against the decision of 31 July 2013. S.S. participated in those proceedings.
16. On 22 January 2014 the Bad Iburg District Court upheld its interim order that C. should be immediately returned to the applicant.
17. On 27 May 2014 the Oldenburg High Court dismissed an interlocutory appeal by S.S. against that decision. As submitted by the applicant, the interim order in question could not be enforced because of the ongoing proceedings in Poland.
18. Meanwhile, on 28 April 2014 the Bad Iburg District Court had declared the couple divorced.
(d) Criminal proceedings against S.S.
19. As established by the Świdnica District Court in the course of the Hague Convention proceedings described below (see paragraphs 20-43 below), the Osnabruck District Prosecutor opened a criminal investigation into perjury allegedly committed by S.S. on 11 September 2013 and into her abduction of C. The Court has not been informed about the outcome of those proceedings.
2. Child retention and proceedings under the Hague Convention
20. In early July 2013 S.S. travelled with the children to Poland without the applicant’s consent. It appears that she had informed the applicant that she was taking the children to Poland on a three-week holiday. In early August 2013 S.S. informed the applicant that she would not be returning to Germany with the children. S.S. and the children moved in with S.S.’s mother in Świdnica. C. had already been registered as residing at that address on 26March 2013.
21. On 21 August 2013 the applicant lodged an application for C.’s return with the German Hague Convention Central Authority. He stated that S.S. suffered from undiagnosed emotional and mental conditions, in particular paranoia, and that she had imagined that he had been violent and had sexually abused their son.
22. On 30 September 2013 the application was registered with the Świdnica District Court.
23. As submitted by the Government, on 10 and 11 October 2013 the judge in charge of the case ordered that a community interview report be drawn up by a court-appointed guardian (kurator) in respect of C.’s living and family situation in Poland, and that the submissions made by the applicant in his Hague Convention request be translated into Polish. On 23 October 2013 the judge sought information from the District Prosecutor on the criminal case instituted by S.S. against the applicant.
24. According to the Government, on 21 October 2013 the court-appointed guardian produced the report sought. The report concluded that C. and M. were in good shape and that S.S. had adequate parenting skills to provide her children with the necessary quality of care.
25. On 27 October 2013, in response to the applicant’s Hague Convention application, S.S. submitted that the applicant had subjected the family to psychological and physical violence, and had sexually molested their son. The child had continued to be exposed to danger, despite the couple’s separation, because the Bad Iburg District Courthad authorised visits by the child to his father’s house. S.S. described various incidents of abuse which had allegedly been described by her son after the visits. She also stated that she had had to leave Germany because her neighbours had harassed her and she had not obtained help from the authorities, hospitals or doctors she had contacted on numerous occasions. On the other hand, help provided to the children in Poland had re-established their psychological balance. S.S. stressed that her decision to leave Germany had been made in the best interests of her children.
26. As submitted by the Government, on 4 November 2013 the Świdnica District Court ordered an expert in psychiatry and an expert in psychology to produce reports within fourteen days. The expert in psychiatry was to produce a report on S.S.’s mental health, and the expert in psychology was to produce a report on whether C. might have been the victim of violence or sexual abuse at the hands of his father and whether his return to Germany with his father and without his mother would expose him to psychological or physical harm. S.S.’s psychiatric examination was first scheduled for 6 November 2013, and the psychological examination of C. for 13 November 2013. The court did not manage to inform S.S. of those decisions in time. Consequently, the examinations were rescheduled for 11 December 2013. On 10 December 2013 S.S. informed the court that the child was ill and unable to attend the examination.
27. As submitted by the Government, on 15 November 2013 the Świdnica District Prosecutor informed the District Court that the criminal investigation concerning S.S.’s allegation that the applicant had sexually abused C. was going to be transferred to the jurisdiction of a German prosecutor. The prosecutor also submitted a psychological report which had been produced in respect of C.’s sister.
28. On 5 December 2013 the experts submitted a report on S.S.’s mental health, concluding that she did not suffer from any psychosis, mental retardation or short-term mental disorder which could have a negative impact on her minor children. The experts were of the view that S.S.’s mental health allowed her to fulfil adequately her parenting duties and did not pose any threat to the well-being of the children.
29. According to the Government, on 11 December 2013 the Świdnica District Court held a hearing and issued an interim order barring S.S. from leaving the country with C. and retaining the child’s passport until the completion of the main proceedings.
30. On 11 December 2013 the Świdnica District Court also decided to do without the psychologist’s report concerning C. which had been ordered earlier, and instead to obtain a report from the Family Consultation Centre (Rodzinny Ośrodek Diagnostyczno-Konsultacyjny – “the RODK”). The RODK’s experts were ordered to assess C.’s bond with each of his parents; whether the child displayed any signs of having been sexually molested or subjected to psychological or physical violence at the hands of any person; and whether there was a serious risk that returning the boy to Germany to be cared for by his father and separating him from his mother would expose him to physical or psychological harm or otherwise place him in an intolerable situation. The examination was scheduled for 15 January 2014 and both parties were ordered to take part in it.
31. It appears that on 19 December 2013 the Regional Prosecutor joined the proceedings.
32. According to the Government, on 17 January 2014 the Świdnica District Court authorised C. to travel to Germany to attend a hearing before the court there. On 28 January 2014 S.S. lodged an interlocutory appeal against that decision.
33. The RODK’s experts spoke with the family on two unspecified dates. C. was accompanied by his elder sister, his mother and grandmother. The applicant was assisted by an interpreter and accompanied by a friend.
34. On 6 February 2014 the RODK report was submitted to the District Court. It contained the following conclusions: C. was most attached to his mother; their emotional bond was very strong; S.S. provided C. with love, care and a feeling of security; C’s bond with his father was not strong, but the boy did not fear his father; C. did not present any signs of being a child who had been subjected to violence of any kind; and the child’s return to the care of his father in Germany and separation from his mother would expose him to a serious risk of physical and emotional harm, because it would shake the foundations of the stability in his life and change the centre of his life. That, in turn, would drastically disrupt his relations with the people who were important to him and cause him trauma.
35. The experts also observed that a psychiatric examination of S.S., which she had undergone for the purposes of the RODK report, had not confirmed the allegation that she suffered from a mental illness.
36. On 12 February 2014 the court heard the expert psychiatrist who had examined S.S. earlier.
37. On 19 February 2014 the Świdnica District Court dismissed the applicant’s Hague Convention application. It relied on the following material: the testimony of the applicant and S.S.; the RODK report; various medical certificates; the decisions of the German courts and authorities which had been produced in the course of the criminal proceedings against the applicant and in the proceedings before the family courts; and material which had been obtained for the purpose of those proceedings, including the report from the Forensic Psychology Institute and the letter from the Youth Office.
38. The Świdnica District Court held that the child had indeed been wrongfully abducted by his mother within the meaning of Article 3 of the Hague Convention, but his return to Germany would put him at serious risk of psychological harm. Consequently, it was in the child’s best interests for the applicant’s request to be rejected.
The reasons for the Świdnica District Court’s decision can be summarised as follows: (i) the best interests of the child were of paramount importance in the proceedings brought under the Hague Convention and prevailed over the interests of the parents; (ii) the ongoing criminal proceedings against S.S. in Germany were an objective obstacle to her return to that country; (iii) a serious risk existed that the child, if returned to Germany, would have to be separated from his mother and his sibling; (iv) C.’s separation from his mother would be very traumatic for him because S.S. was his primary and only carer; (v) it would be equally destructive to separate C. from his elder sister; (vi) contact between the child and his father had ceased almost completely in March 2013 and the applicant had not taken any formal action to have it resumed; consequently, the child saw the applicant as a stranger and had an indifferent attitude towards him; no emotional bond existed between the father and the son; (vii) when tested by the RODK, the applicant had avoided stressful situations, which confirmed that he would have difficulty taking care of his son and providing him with emotional security.
The District Court also observed that, in view of C.’s young age, he was likely to accept any place of residence as long as his mother and sister were there with him. Lastly, the court observed that the large amount of evidence obtained in the case showed that S.S.’s allegations of violence and child abuse by the applicant were ill-founded.
39. On 2 April 2014 the applicant appealed, arguing that the court had erred by, inter alia, ignoring the precedence of the 2003 EU Council Regulation and instead examining the case under the Hague Convention. It had also relied on the assumption that the child’s mother would not return to Germany with the child, had tested the child-father relationship in the presence of other relatives, and had not sought any supplementary report from the RODK.
40. On 17 July 2014 the Świdnica Regional Court (Sąd Okręgowy) dismissed the applicant’s appeal.
41. Firstly, the appellate court observed that the EU Regulation was a secondary legal instrument, and that the case had been rightly brought and examined under the Hague Convention.
42. The appellate court then held that the return of S.S. to Germany was indeed impossible in the circumstances of the case, in particular in view of the major conflict between the parents and the criminal proceedings against S.S. which were ongoing in Germany. It also made the following observations about the applicant: he had ignored the question of the return of C.’s elder sister, which had not been covered by the Hague Convention proceedings; he had not thought through the logistics of how he would take care of his son in Germany; and he had much less practical experience in raising children. The court also observed that the reports by the experts from the RODK and the German Forensic Psychology Institute had been clear and consistent in their conclusion that S.S. was C.’s primary carer and more important to him than his father. It was therefore unnecessary to seek any supplementary reports. Lastly, the appellate court expressed the view that to order C.’s return would cause him serious psychological harm which could be detrimental for the child’s development. In particular, the boy’s return could have a destabilising effect on his school environment and his sense of security.
43. The decision was served on the applicant on 6 August 2014.
3. The applicant’s contact with the child during the Hague Convention proceedings
44. As established by the Świdnica District Court in the course of the proceedings described in paragraphs 20-43 above, for the first seven months after the children’s departure for Poland the applicant sought contact with C. and M. but was not able to see them. During that period of time he did not lodge any formal application in respect of his contact with the children.
45. The applicant explained that he had not taken any legal action to have his contact rights in respect of his son granted by a Polish court while the main case for the child’s return had been ongoing because he had not wanted to protract those proceedings.
46. From April 2014 onwards the Polish courts were called on many times to rule on the parents’ custody and contact rights.
B. Relevant domestic law and practice
47. The relevant domestic and international law is set out in the Court’s judgment in K.J. v. Poland, no. 30813/14, §§ 33-41, 1 March 2016.
48. The applicant complained under Articles 6 and 8 of the Convention of a breach of his right to respect for his family life because of the dismissal of his Hague Convention application and various alleged shortcomings in the decision-making process, including the lack of expedition in the examination of his request to have his child returned to Germany.
49. As master of the characterisation to be given in law to the facts of the case (see Ferrari v. Romania, no. 1714/10, § 31, 28 April 2015, Vilenchik v. Ukraine, no. 21267/14, § 39, 3 October 2017, and Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 124, 20 March 2018, with further references), the Court considers that the applicant’s complaint should be examined under Article 8 of the Convention, which reads as follows, in so far as relevant:
“1. Everyone has the right to respect for his private and family life …
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.”
A. The parties’ submissions
50. The Government argued that the refusal to order the child’s return to Germany had been justified, in view of the overall circumstances of the case which the Polish courts had scrupulously examined. The impugned decision had been based on extensive expert evidence – which it had been necessary to obtain, in view of the applicant’s allegations concerning the child’s mother’s mental condition – and had been taken in the child’s best interests. The proceedings had been conducted as speedily as possible under the circumstances, with the courts acting diligently and without delays. The decision-making process had been fair and had ensured that the procedural rights of both parties had been respected.
51. The Government also stressed that it had been reasonable to hold that S.S. should not be expected to return to Germany with her two children because of ongoing criminal proceedings against her there. Another important element of the case was the fact that contact between the applicant and C., which in any event had been irregular, had ceased completely in March 2013. The applicant had taken legal action to enforce his contact rights only in April 2014.
52. The applicant complained that the Świdnica District Court’s refusal to order his child’s return had resulted from an incorrect application of Article 13 (b) of the Hague Convention, in so far as it had been based on the assumption that the child would have to be separated from his mother if he returned to Germany. Moreover, the applicant argued that the impugned dismissal of his application had been arbitrary and based on insufficient evidence, and that it had disregarded the principle of equality of arms. To this end, the applicant submitted that the RODK’s examination of the child should have been carried out as soon as the case had been registered with the Świdnica District Court, and that the ensuing report should have been supplemented by: (i) an examination of C.’s behaviour in only the applicant’s presence, that is, in the absence of S.S. and the child’s grandmother; (ii) an assessment of S.S.’s parenting skills in view of her prior behaviour in Germany; and (iii) information about a psychological incident involving S.S. as documented by the German Forensic Psychology Institute. The applicant also argued that the Polish courts had not respected the jurisdiction of the German courts, in breach of the principles of international law. Lastly, the applicant complained that the Polish courts had taken too long to examine his Hague Convention application, in breach of the requirement under Article 11 of the Hague Convention to act expeditiously in such proceedings.
B. The Court’s assessment
1. General principles
53. The general principles regarding the relationship between the Convention and the Hague Convention, the scope of the Court’s examination of international child abduction applications, the best interests of the child and the procedural obligations of the States, are laid down in the Court’s Grand Chamber judgment in the case of X v. Latvia (see X v. Latvia [GC], no. 27853/09, §§ 93-108, 107 ECHR 2013), as well as in a number of other judgments concerning proceedings for the return of children under the Hague Convention (see Maumousseau and Washington v. France, no. 39388/05, § 68, 6 December 2007; Ignaccolo-Zenide v. Romania, no. 31679/96, § 102, ECHR 2000 I; Iosub Caras v. Romania, no. 7198/04, § 38, 27 July 2006; Shaw v. Hungary, no. 6457/09, § 70, 26 July 2011; and Adžić v. Croatia, no. 22643/14, §§ 93-95, 12 March 2015).
2. Application of the above principles to the present case
54. In the instant case, the primary interference with the applicant’s right to respect for his family life may not be attributed to an action or omission by the respondent State, but rather to the action of the applicant’s then wife and his child’s mother, a private individual, who took their son to Poland. That action nevertheless placed the respondent State under a positive obligation to secure for the applicant his right to respect for his family life, which included taking measures under the Hague Convention with a view to ensuring his prompt reunification with his child (see G.N. v. Poland, no. 2171/14, §§ 47 and 48, 19 July 2016).
55. In the present case, while holding that the abduction of the child from his habitual residence in Germany was wrongful within the meaning of Article 3 of the Hague Convention (see paragraph 38 above), the domestic courts took approximately ten months to examine the applicant’s request for the return of his son. Ultimately, the court dismissed the applicant’s Hague Convention request, holding that the child did not have to return to the applicant in Germany (see paragraph 42 above).
56. The Court therefore finds that the events under consideration, in so far as they give rise to the responsibility of the respondent State, amounted to an interference with the applicant’s right to respect for his family life (see G.N., cited above, § 50, with further references).
57. The interference had its legal basis in the Hague Convention, which entered into force in Poland in 1992 and forms part of its domestic law. Moreover, the domestic courts acted in what they considered to be pursuit of the legitimate aim of protecting the rights and freedoms of the child (see G.N., cited above, § 51, with further references).
58. The Court must therefore examine the conduct of the impugned judicial proceedings and determine whether the domestic courts thoroughly assessed the applicant’s personal circumstances, carefully balanced the competing interests and took into account the criteria set out in its case-law, and whether or not the conclusions which they reached were arbitrary or manifestly unreasonable (see Strömblad v. Sweden, no. 3684/07, § 92, 5 April 2012; see also Ndidi, cited above, § 76, and, in the same context, Hamesevic v. Denmark (dec.), no. 25748/15, § 43, 16 May 2017, and Alam v. Denmark (dec.), no. 33809/15, § 35, 6 June 2017). On this basis, the Court will determine whether the interference in question was “necessary in a democratic society” within the meaning of Article 8 § 2 of the Convention, interpreted in the light of the relevant international instruments, and whether, when striking the balance between the competing interests at stake, appropriate weight was given to the child’s best interests, within the margin of appreciation afforded to the State in such matters (see G.N., cited above, § 52).
59. The Court firstly notes that the domestic courts considered that there was a serious risk that the child, if returned to Germany, would have to be separated from his mother and his sibling. The domestic courts further concluded that separating the very young child from his mother, and incidentally also from his half-sister, would inevitably be contrary to C.’s best interests, and would thus place the boy in an intolerable situation within the meaning of Article 13 (b) of the Hague Convention (see paragraphs 38 and 42 above).
60. The domestic courts expressed the view that it would be unreasonable to expect the mother to return to Germany given the conflict between the parents and the criminal proceedings instituted against her. In the light of the uncontested information that the Osnabruck District Prosecutor opened a criminal investigation in respect of S.S. in relation to alleged perjury and child abduction (see paragraphs 19 and 51 above), in the circumstances of the case, the Court cannot find that the assessment by the Świdnica District Court was arbitrary or manifestly unreasonable.
61. The Court also observes that the Polish courts’ arguments for rejecting the applicant’s Hague Convention request were based on extensive and unequivocal evidence, including certificates and reports from independent and qualified experts (see paragraph 37 above). Hague Convention proceedings ought to be of a summary nature. A domestic family court can therefore do without a detailed evaluation of an overall family situation such as that provided by the RODK. Under the Hague Convention, the only question that needs to be assessed, possibly by experts, is whether there is a grave risk that the child’s return would expose him or her to physical or psychological harm or otherwise place the child in an intolerable situation.
62. In the present case, the serious allegations concerning sexual abuse of the child by the father and the mother’s mental condition made it necessary for the Świdnica District Court to seek expert opinions and thus have the child and S.S. examined by specialists. The Court sees no grounds to criticise the court’s attempts to turn firstly to what seemed to be a quicker and more targeted evaluation by the court-appointed guardian (see paragraph 23above) rather than evaluations by experts in psychiatry and psychology (see paragraph 26 above). It was only when the psychological evaluation of the child failed to take place that the wide‑ranging RODK report became a valid alternative (see paragraph 30 above).
63. The applicant participated in the child’s examination by the RODK psychologists (see paragraphs 30, 33, 37 above) and effectively contested their findings before the appellate court (see paragraph 39 above). The appellate court addressed all the arguments raised by the applicant and convincingly showed that, in the light of clear and consistent reports from various institutes, it was unnecessary to seek any supplementary evidence (see paragraph 42 above). The Court finds that the RODK examination was carried out thoroughly and in an unbiased manner.
64. In the light of the above, the Court cannot find that that the reasoning of the domestic courts fell short of the requirements of Article 13 (b) of the Hague Convention which were described above, or that their assessment of the facts of the case or the child’s best interests was arbitrary or manifestly unreasonable.
65. Lastly, in respect of the decision-making process, the Court observes that Hague Convention proceedings are recognised as being of an urgent nature, and that Article 11 of that treaty, and incidentally Article 11 of the EC Regulation on Recognition of Judgments, set out a non-obligatory six‑week time-limit for child abduction proceedings to be completed before all levels of court.
66. Furthermore, it is to be noted that, a period of approximately nine months and two weeks elapsed between the date on which the applicant’s request for the return of the child was registered with the Świdnica District Court and the date of the final decision (see paragraphs 22 and 40 above). It is therefore clear that the time-limit in question was significantly exceeded. The Court nevertheless observes that the following circumstances effectively exempted the domestic courts in the case at hand from the duty to strictly observe the time-limit in question.
67. The domestic courts were faced with S.S.’s Article 13 (b) objection that her son, if returned to Germany, would be at grave risk of physical or psychological harm on account of the sexual abuse to which the applicant had allegedly subjected him in the past. The Court is of the view that even though false allegations of a similar nature are frequently made by abducting parents in the course of Hague Convention proceedings, they are nevertheless not to be treated lightly, and they ought to be investigated by domestic authorities before those authorities can decide whether the Hague Convention exception applies in the circumstances of the case.
68. The authorities considered, S.S.’s allegations that the applicant had molested C. to be sufficiently credible that they were investigated by the prosecution services of Poland and then Germany (see paragraphs 7, 21 and 25 above). It was only on 22 November 2013 that the investigation was closed by the German authorities. It is unknown when the Polish authorities were given notice of that decision, but a delay of at least several weeks cannot reasonably be excluded.
69. In the Court’s view, the Świdnica District Court was therefore justified in seeking information from the Polish prosecutor on 23 October 2013 on the progress of the criminal investigation against the applicant (see paragraph 23 above), and in ordering on 4 November 2013 that an expert subject C. to a psychiatric examination to assess whether the boy might have been the victim of sexual abuse at the hands of his father (see paragraph 26 above). The allegation that the child’s mother suffered from a mental condition made that examination even more complex. Overall, the Court finds that the first-instance court was justified in ordering the report in question, both to best assess what was in the child’s best interests, and also to give due consideration to the applicant’s arguments. It is also important to note that the court gave a reasonably short deadline for the preparation of that report (fourteen days), and the respective examinations of the mother and the child were scheduled to take place shortly after the court gave the relevant order (seeparagraph 26above).The report in respect of the mother’s mental health was produced on 5 December 2013 (see paragraph 28 above). The fact that the child’s examination ultimately did not take place was beyond the domestic court’s power (see paragraph 26 in fine).
70. In addition, the Świdnica District Court was called upon to issue two interim orders in respect of the child’s travel abroad (see paragraphs 29 and 32 above) and to make provision for the participation of the Regional Prosecutor (see paragraph 31 above). As soon as it became clear that the child would not be having the examination ordered earlier, the court ordered a report from the RODK (see paragraph 30 above). The Court is of the view that, in the circumstances of the case, obtaining such a report was necessary to assess whether there was a serious risk that returning the child to Germany would expose him to physical or psychological harm or otherwise place him in an intolerable situation. The examination of the family was scheduled and took place without undue delay (see paragraphs 30 and 33 above). The report was drawn up and submitted to the court shortly afterwards, on 6 February 2014 (see paragraph 34 above). Within days the court heard the expert psychiatrist who had earlier examined S.S. (see paragraph 36 above), and on 19 February 2014 it delivered its first‑instance ruling on the merits of the case (see paragraph 37 above).
71. The above sequence of events clearly shows that the first-instance court, which was faced with a particularly complex Hague Convention case, dealt with the case actively and as speedily as possible under the circumstances.
72. Lastly, the final ruling in the case was issued two and a half months after the applicant’s appeal, an appeal which he took two months to lodge (see paragraphs 39 and 40 above).
73. In view of the above, the Court concludes that even though the proceedings for the child’s return lasted longer than the recommended six‑week period (compare with Karrer v. Romania, no. 16965/10, § 54, 21 February 2012, and R.S. v. Poland, no. 63777/09, § 70, 21 July 2015), the domestic courts proceeded in the most expeditious way possible, and the decision-making process was not marked by any long periods of inactivity (see Strömblad v. Sweden, no. 3684/07, § 93 and 94, 5 April 2012).
74. The Court finds that the particular circumstances of the case required the domestic courts to act with diligence and caution, as they did, carrying out an in-depth analysis of the case with a view to protecting the best interests of the child and duly examining the applications filed by the parties.
75. In conclusion, in the circumstances of the case seen as a whole and in view of the respondent State’s margin of appreciation in the matter, the Court considers that the State did not fail to comply with its positive obligations under Article 8 of the Convention.
76. Accordingly, the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on26 September 2019.
Renata Degener Armen Harutyunyan
Deputy Registrar President