A.S. v. POLAND (European Court of Human Rights)

Communicated on 26 February 2019

FIRST SECTION

Application no.58012/10
A.S.
against Poland
lodged on 4 October 2010

STATEMENT OF FACTS

The applicant, Ms A.S., is a Polish national who was born in 1975 and lives in Zgierz.

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

In 2000 the applicant and Mr J.B. married. On 26 October 2002 their son A. was born.

On 19 February 2008 the applicant initiated divorce proceedings. She sought a no-fault divorce and a finding that the child’s place of residence would be with her. The applicant’s husband lodged a counterclaim, agreeing to a divorce but seeking that the court finds the applicant solely responsible. He also sought custody of the child and an order that the applicant pay child maintenance.

During the proceedings the court obtained an expert opinion from the Family Consultation Centre (RodzinnyOśrodekDiagnostycznoKonsultacyjny“RODK”). The experts from the centre gave an opinion in favour of both parents, finding that each was capable of providing a stable household for the child. They were attentive to the child’s best interests and respected the boy’s need to remain attached to both his parents. At the same time, the experts concluded that the applicant’s husband would be more effective in protecting the child, given the conflict in the family, and that he more clearly perceived the child’s needs.

On 8 June 2009 the Łódź Regional Court granted the divorce, finding the applicant solely responsible for the breakdown of the marriage. The court decided that both parents would retain parental responsibility in respect of A., however the father would have custody of the child. The applicant was ordered to return the child to his father within three months of the judgment becoming final. Lastly, the applicant was ordered to pay child maintenance in the amount sought by her husband.

The court established that the couple had started having marital problems after the birth of their son. In 2006 the applicant had informed her husband that she had been seeing somebody, a woman, A.G. The applicant and her husband had attempted therapy. The parents of those involved: the applicant, her husband, and A.G., had all disapproved of the applicant’s homosexual relationship and her wish to end her marriage. The parties had separated in 2008 and the applicant’s husband had moved out; in the same year he had started a new relationship with a woman. The court attempted to define the relationship between the applicant and A.G., and stated:

“The nature of the relationship is shown in the emails of the applicant and A.G., [which are] unequivocal in their content, [as well as in the emails of one witness]. The witness, in her email, directly stated that the applicant would be better off avoiding admitting before the court that the reason for the divorce had been her relationship with A.G. and her changing her sexual preferences, and that it would be difficult to state under oath that [the applicant and A.G.] had only been friends. Emails also included advice on how to dispute arguments that the child should not be raised by two lesbians.”

On the basis of the facts of the case, the court considered that the applicant’s marriage had broken down and that the divorce had not been “contrary to the reasonable principles of social coexistence” (zasadywspółżyciaspołecznego). The court found that the applicant had been solely responsible for the breakdown of her marriage because of her relationship with A.G. That relationship was clearly emotional and intimate, thus exceeding the borders of friendship. At the same time, the court dismissed arguments by the applicant that her husband had had an affair which had also led to the breakdown of their marriage as improbable.

The court noted that, as established by the experts, both parents had equal qualifications in terms of parenting capacity and were able to secure proper conditions for A.’s development. The court further stated:

“In deciding on the place of residence of the parties’ son, and setting it with the father, the court took into account many circumstances, including feelings expressed by the child, who stated that, for Daddy, he and Mum were the most important people, and for Mum it was ‘Auntie [A.G.]’. When living with his father and having contact with his mother, the child will have chance to have contact with the mother on an individual basis. However, if living with his mother, as he has been up until now, A will be part of a life in whose structure G. is an important element. She will be acting as an important person [and] playing some role in A’s life, in spite of the fact that she is a stranger to him. As underlined by the experts, it is important for the child to have close contact with his mother, and not with his mother and ‘Auntie [A.G.]’. From his mother, A needs direct contact, the spontaneous exchange of feelings, a sense of stability, and a sense that he is an important (the most important) person in her life. It is highly probable that the child’s being raised by the mother and “Auntie [A.G.]” will lead to him feeling different, in a negative sense, and produce a lack of social acceptance in the next stage of his life – school education. Raising a child in a homosexual relationship increases the likelihood that the person being raised will acquire such features, because the educational process consists of providing a model for a family’s functioning and each parent’s role.”

On 20 July 2009 the applicant appealed against the judgment. The applicant complained in particular that she had been punished by the court for her alleged homosexuality. That constituted discrimination in breach of the Convention. The applicant contested the court’s assessment of the facts and its interpretation of her child’s words. A, who was six years old at that time, had never expressed that he was not the most important person to his mother; he had only observed that A.G. had taken the place of his father in his mother’s hierarchy of importance. The applicant also disagreed with the court’s statements regarding the allegedly negative consequences of children being raised by homosexual parents and how that might influence children’s sexual preferences.

On 5 May 2010 the ŁódźCourt of Appeal held a hearing at which it heard court-appointed experts. The experts concluded before the court:

“The last matter, which cannot be ignored, is the homosexual relationship of the [applicant]. At the [child’s] current stage of development, the influence of peers becomes the most influential [factor] for the child; not only family and school. The child starts to take into account the norms and rules that govern the peer group to which he belongs … changing the child’s place of residence will not eliminate the negative consequences of the mother’s homosexual relationship, but it may minimise them. Raising a boy in a homosexual relationship may cause him difficulties in terms of learning [how] to fulfil the social role of a man (spolecznarolamezczyzny). However, one cannot state that a boy raised in a homosexual relationship will become a homosexual.”

On 5 May 2010 the ŁódźCourt of Appeal dismissed the appeal. The judgment has become final.

COMPLAINT

The applicant complains under Article 14 taken together with Article 8 of the Convention that the domestic courts considered her solely at fault for the breakdown of her marriage, and granted her former husband custody of her child on the grounds of her homosexuality. She maintains that that constituted discriminatory interference with her right to respect for her private and family life.

QUESTION TO THE PARTIES

Regard being had to the applicant’s allegation that the courts refused to grant her custody of her child on the grounds of her sexual orientation, has the applicant suffered discrimination in the enjoyment of her Convention rights, contrary to Article 14 of the Convention read in conjunction with Article 8?

The Government are invited to provide a copy of the written reasons for the judgment of the ŁódźCourt of Appeal given on 5 May 2010 (I Aca 695/09).

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