Last Updated on August 2, 2019 by LawEuro
Information Note on the Court’s case-law 219
June 2018
Antkowiak v. Poland (dec.) – 27025/17
Decision 22.5.2018 [Section I]
Article 8
Article 8-1
Respect for family life
Court order to return six-year old child, who had been in applicants’ care since birth, to biological parents: inadmissible
Facts – A pregnant woman, who the applicants – a married couple – had found on the Internet, agreed to give up her child for adoption. In February 2011, after giving birth to a baby boy, she signed a declaration to this effect and the child has been living with the applicants since he left the hospital. However, three weeks later, she changed her mind and lodged a request with a district court for the immediate return of the child. In the meantime, her partner recognised the paternity of the baby. Her request was dismissed and during the next years, the applicants and the biological parents have been engaged in proceedings for custody and parental rights over the child. In 2013 the biological parents were granted contact rights.
In December 2016, while acknowledging that the solution was contrary to the boy’s will, a regional court ordered his return to his biological family. Enforcement proceedings in respect of this decision are still pending. At the same time, the applicants instituted new proceedings to restrict the biological parents’ parental rights and to become the child’s foster parents. In August 2017, referring to a fresh expert psychologist’s opinion, a district court ordered that the boy should reside with the applicants pending the outcome of the proceedings.
Law – Article 8: The applicants had neither expressly nor in substance submitted any complaints on behalf of the child. Accordingly, the only issue to be determined in the instant case was whether there had been a breach of the applicants’ own rights under Article 8 of the Convention.
While there were no biological ties between the applicants and the child, he had been in their constant care since birth, for more than six years so far. Given the close personal ties between them and the fact that the applicants had assumed their roles as parents vis-à-vis the child, such a relationship fell within the notion of family life. The court order to return the child to his biological parents constituted an interference with the applicants’ right to respect for their family life. The interference was in accordance with the law and was intended to protect the child’s “rights and freedoms”.
Regarding the necessity of the impugned measure, the regional court had concluded that the child’s return to his biological parents, though it would cause him suffering, was the only way to regulate his situation in the long term and to avoid more emotional complications in the future. It had taken into account the child’s young age and the fact that it had not been too late to give him a chance to be raised in his biological family. While initially the authorities had had some doubts regarding the parenting skills of the biological parents, eventually both couples had been deemed fit to raise the child. The authorities had taken measures to enable the child to develop bonds with his biological parents and thus to facilitate the family reunification. The domestic courts had thus had to make a difficult choice between allowing the applicants to continue their relationship with the boy and taking measures with a view to bringing about the boy’s reunion with his biological family. As required by international law, their primary consideration had always been the child’s best interest. While the Court acknowledged the emotional hardship caused to the applicants, their rights could not override the best interests of the child. The national authorities had provided relevant and sufficient reasons within their margin of appreciation and the impugned measure had therefore been “necessary in a democratic society”.
As to the decision-making process, the case had been examined at two levels of jurisdiction. Numerous witnesses had been heard and several expert opinions had been obtained. Faced with diverging expert opinions as to which decision would be in the child’s best interest, the domestic courts had provided extensive reasons for their findings and addressed the arguments raised by the applicants. The applicants had been fully involved and legally represented throughout the proceedings. Moreover, the Ombudsman for Children’s Rights had intervened in the proceedings, maintaining that there had been no grounds to deprive the biological parents of their parental rights. While the length of the decision-making process had clearly not contributed to the protection of the child’s best interests, the process itself had been fair and capable of safeguarding the applicants’ rights under Article 8.
Conclusion: inadmissible (manifestly ill-founded).
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