Communicated on 26 February 2019
lodged on 18 March 2010
STATEMENT OF FACTS
The applicant, Ms X, is a Polish national who was born in 1970 and lives in Lubin. The President granted the applicant’s request for her identity not to be disclosed to the public (Rule 47 § 4). She is represented before the Court by Ms K. Kędziora, a lawyer practising in Warsaw.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 1993 the applicant married Mr M.K. Their first child A was born in 1993, and their children B, C and D were born in 1996, 1998 and 2001 respectively.
A conflict between the applicant and her husband over custody of their children apparently started in 2005. At that time the applicant became involved in a relationship with another woman, A.Z.
In April 2005 the applicant applied for a divorce.
A serious disagreement between the applicant and her parents developed, as they did not accept her decisions about her personal life. They instituted proceedings in which they sought custody of her children. On 28 April 2005 the Lubin District Court, sitting as a single judge, Judge D.T., granted them temporary custody of A, B, C and D. The applicant and her husband appealed against the decision. On 16 June 2005 the Legnica Regional Court allowed their appeal and quashed the impugned decision. The court noted that although the family had been going through a difficult period due to the impending divorce, both parents had been caring for their children properly. There had been no justification for such a profound interference by the authorities and the children’s removal and placement in the custody of their grandparents. The appellate court also considered that the first-instance court had incorrectly and to the largest extent based itself on statements of the grandparents, ignoring other evidence.
On 6 June 2005 the Legnica Regional Court granted a divorce in the proceedings initiated by the applicant. The court pronounced a no-fault divorce and granted the applicant custody of the parties’ four children. Neither the applicant nor her husband appealed against the judgment; no written grounds for it were prepared. The divorce judgment became final on 28 June 2005.
2. First set of custody proceedings
On an unspecified later date the applicant’s former husband applied to change the custody arrangement ordered in the divorce judgment.
In the course of the proceedings, an expert opinion was obtained from the Family Consultation Centre (RodzinnyOśrodekDiagnostycznoKonsultacyjny“RODK”). The experts considered that the children had emotional ties with both parents, but recently their father had become more important to them and their relations with their mother had become troubled. The experts stated:
“[The applicant’s] continued custody of her children would be possible, provided that she firmly corrects her behaviour, excludes [A.Z.] from family life, [and] continues with the psychological therapy directed at improving her relationship with the children.”
The experts nevertheless concluded that the applicant should retain custody of A, B and D, custody which should be overseen by a guardian. The applicant’s son C should live with his father, and the applicant should aim at improving her relations with him.
On 9 October 2007 the experts issued a second expert opinion in which they answered a question from Judge D.T. as to what the children’s preferences were. When questioned by the experts, the applicant was asked whether she had sexual intercourse with A.Z. and whether she was a homosexual. They concluded that the children would prefer to live with their father.
On 16 October 2007 the Lublin District Court, sitting in a composition of one professional judge, Judge D.T., and two lay judges, granted the application of the applicant’s former husband and limited the applicant’s parental rights in respect of her four children. The court considered that the applicant’s marriage had broken down because in 2004 she had started a relationship with another woman, A.Z. The court took into account the wishes of the applicant’s three older children – aged 13, 11 and 8 at the time – to live with their father. The court noted that the applicant’s former husband had started a new relationship and considered that the children accepted his new partner. The court stated: “the applicant, owing to her serious involvement in her relationship with A.Z., does not give any guarantee of providing her children with the correct care” and “[she] doesn’t want to abandon [her] excessive intimacy with A.Z. in order to improve [her] relations with [her] children.”
The applicant appealed. In her appeal, she contested the court’s conclusions that her children would prefer to live with their father and had not accepted A.Z. She complained that the experts had distorted their words, and that they were too young to be given responsibility for decisions about which parent they wanted to live with.
On 10 January 2008 the Legnica Regional Court held a hearing at which the applicant’s former husband proposed that the applicant retain custody of D. He acknowledged that his youngest child had a stronger bond with his mother and that taking custody of him, although possible, would be difficult. At the same hearing, the court dismissed the applicant’s appeal.
3. Proceedings to challenge the judge
On 26 May 2008 the applicant lodged an application whereby she challenged the impartiality of Judge D.T. She submitted that the judge had known her parents from the time when they had been lay judges, from 2000 until 2003. Her mother had worked at that court as a guardian since the 1980s. Moreover, the judge had clearly shown bias against the applicant in the past in granting her parents temporary custody of her four children. There had been no justification for such a decision, as had been noted by the appellate court in 2005. In the applicant’s opinion, there was no doubt that the judge had sympathised with her parents and former husband.
On 2 June 2008 the Lubin District Court dismissed the challenge. The court, which was the same court where the challenged judge sat, considered that there was no objective justification for challenging Judge D.T.’s impartiality.
The applicant appealed against the decision.
On 16 September 2008 the Legnica Regional Court dismissed her appeal.
4. Last set of custody proceedings
Subsequently, the applicant’s three older children moved to live with their father, as ordered by the courts. The applicant refused to return her youngest child, D, to her former husband.
On an unspecified earlier date the applicant had requested that the custody order be revised in respect of D. She had submitted that the child had always lived with her, even after the order of 16 October 2007. The child had strong emotional ties with her and refused to move to his father.
In April 2008 two expert opinions were issued confirming that D had a very strong bond with the applicant as he had lived with her all his life. He was less attached to his father.
On 8 May 2008 the Lubin District Court, sitting as a single judge, Judge D.T., dismissed the applicant’s request for an interim measure by allowing her to retain custody of D for the duration of the proceedings. On 27 May 2008 the Lubin District Court, sitting as a single judge, Judge D.T., ordered the court guardian to forcefully remove the child from the applicant’s care. On 3 June 2008 the court guardian took D from his kindergarten and handed him over to the applicant’s former husband. D was six years old at that time.
On 8 June 2009 the Lubin District Court, sitting in a composition of one professional judge, Judge D.T., and two lay judges, dismissed the applicant’s application for amendment of the custody order of 16 October 2007 and custody of D. The court repeated the facts which it had established on 16 October 2007. In this context, it stated:
“[the applicant] remained in a relationship with A.Z., whom she would meet in her flat and go for walks with, or to the cinema. The friend would also stay the night in [the applicant’s] flat.”
The court considered that D should continue living with his siblings and father, in order for his correct emotional and social developmental needs to be secured. The court stated:
“Leaving [D] to live with his father is also justified by the current stage of the child’s development and the father’s larger role in creating the male role model.”
The applicant appealed, claiming that D’s best interests required returning him to live with her. She submitted that, in the father’s home, D’s sisters and grandparents took care of him. The applicant relied on other expert opinions submitted in the proceedings which underlined that she had been the child’s primary carer and had the strongest bond with him. Lastly, she also raised the argument that the court’s decision had been discriminatory on the basis of her sexual preferences. The applicant argued that the main grounds for the court’s decisions had been her relationship with another woman.
On 17 September 2009 the Lublin Regional Court dismissed the appeal. The court stated:
“The appellate court finds that the dismissal of the appeal was not on the grounds of the applicant’s sexual orientation, even if she perceives it that way. The issue of raising a child in a same-sex relationship is very controversial, but there was no need to examine it. However, the applicant’s relationship is a fact, therefore one of the circumstances of the case, and the one which caused a particular reaction from the three older children which in turn led to consequences for the whole family, [something] which could not be ignored during the examination of [the applicant’s] application to amend the custody order].
The applicant’s older children had difficulties in accepting their mother’s relationship, [something] which is and should be understandable, as it is not a common situation with which children are familiarised from a very young age. On the contrary, very young people are confronted with a different family model every day, which they perceive as natural, as they see this around, in their home, or in the homes of their peers, distant family members, on the street, at school.
The [impugned] ruling is not discriminatory on the grounds of sexual preferences, which is what the applicant relied on. It has to be noted that not all differences in approach to a person amount to discrimination; it is important if the grounds for such an approach were rationally justified. In the circumstances of the case, such rational justification was that the siblings should stay [together] with one parent, since the parents don’t want to be together. For the reasons indicated above, [the applicant] cannot be that parent, … because the other children are not with her.”
This decision was communicated to the applicant on 6 October 2009.
The applicant complains under Article 8 taken together with Article 14 of the Convention that the domestic courts based their decisions to remove her children from her custody on considerations relating to her sexual orientation. In consequence, she was discriminated against on the basis of her relationship with another woman.
The applicant also complains under Article 6 of the Convention of the lack of a fair trial, in that Judge D.T., who dealt with all her cases, was not impartial. The applicant’s challenge in respect of the judge was dismissed by the same court in which the challenged judge sat, and on the basis of the judge’s own statements. The applicant maintains that there were objective indications that the judge was biased against her and sympathised with her parents, who had worked at the same court for many years.
QUESTIONS TO THE PARTIES
1. Regard being had to the applicant’s allegation that the courts refused to grant her custody of her children 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?
2. Regard being had to the applicant’s second allegation that Judge D.T. was biased against her and the authorities dismissed her challenge against the judge:
2 (a) Did the applicant have a fair hearing in the proceedings to challenge the judge and in the last set of custody proceedings, in accordance with Article 6 § 1 of the Convention?
2 (b) Has there been a violation of the applicant’s right to respect for her private and family life, contrary to Article 8 of the Convention?
3. The Government are invited to provide a copy of the written reasons for the decision of the Legnica Regional Court of 10 January 2008 (II Ca 609/07).