Last Updated on November 2, 2019 by LawEuro
Communicated on 9 March 2018
FIRST SECTION
Application no.80606/17
GyorgyMOGA
against Poland
lodged on 16 November 2017
STATEMENT OF FACTS
The applicant, Mr GyorgyMoga, is a Hungarian national, who was born in 1978 and lives in Brighton.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background
In 2012 the applicant married K.Z., a Polish national with whom he had a son, born in April 2012 and a daughter, born in November 2013. The children have dual Polish and Hungarian nationality.
Both children were born in Poland. They have a registered residence in Poland, Hungary and in the United Kingdom. Prior to 2016, they travelled frequently between the three countries and lived, on and off, in Poland and in the United Kingdom, together with their mother and/or with both parents. Both parents consented to such a life style and they exercised jointly their parental responsibility.
The applicant works as a physician in Brighton. K.Z. is a psychologist, who worked, at intervals, in the United Kingdom and in Poland.
In July 2014 the Polish prosecution services discontinued an investigation into the allegations of domestic violence committed by the applicant, as K.Z. had withdrawn her crime notice.
Also, in July 2014, the Łódź District Court (SądRejonowy) discontinued proceedings for restricting the applicant’s parental rights.
In 2015 and 2016 K.Z. sought assistance with a psychologist in Poland and with a Britain’s association working with the victims of domestic violence.
In June 2016 the family moved to Poland and started undertaking various steps to settle there.
Several days later the applicant,without K.Z.’s consent, took the children to Hungary and then, to the United Kingdom. On 6 July 2016 he was stopped in the latter country by the police and the children were examined by a social worker. It appears that the report concluding that examination noted that the applicant’s daughter had lost weight and looked as if she had not been bathed for several days. The children and their father continued their stay in Brighton.
On 29 July 2016 K.Z. retrieved the children from the applicant and returned with them to Poland.
Since that time, the children have been living with their mother in their maternal grandparents’ house in Łódź. The applicant’s son goes to a kindergarten and is monitored by a psychologist because he had initially showed fears and anxiety. He speaks Polish and Hungarian. The applicant’s daughter speaks Polish only.
2. Proceedings concerning the children’s residence
(a) Proceedings in Poland
On 14 July 2016 the Łódź District Court, with K.R. as single judge, declined jurisdiction, to examine K.Z.’s application to establish the children’s residence with her, sought on the grounds of the alleged threat that the applicant would attempt to abduct them. The court relied on the Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility. It observed that the family’s life centre was in the United Kingdom, where they had so far spent more time, where they owned a house and where the couple had had paid employment and the children attended kindergarten. The children’s stay in Poland had only been temporary and their only nexus with that country was their nationality, the language they spoke and the residence of their maternal grandparents.
An interlocutory appeal against this decision was lodged, as it appears by K.Z.
On 5 August 2016 the Łódź District Court, with K.R. as single judge, relying on Article 395 paragraph 2 of the Code of Civil Procedure, quashed its earlier decision on jurisdiction and issued an interim measure, deciding that the children’s residence was with their mother. The court considered that, at the date when the initial application concerning the children’s residence had been lodged by K.Z., on 2 June 2016, the children had had their habitual residence in Poland. Moreover, they had been born and had spent a part of their childhood in Poland, had their maternal grandparents and received medical care in that country. In view of their young age, the children had a better bond with their mother and they were at that time in that jurisdiction. Lastly, in view of the applicant’s taking of the children abroad without K.Z.’s consent, the court considered that an interim order was necessary.
On 6 October 2017 the Łódź District Court, with K.R. as presiding judge, stayed these proceedings until the completion of the couple’s divorce case.
(b) Proceedings in the United Kingdom
On 18 July 2016 the Family Court in Brighton issued an interim decision, ordering that neither parent should remove the children from the jurisdiction of England and Wales without the prior written consent of the other parent, or the order of the court, save in the event that it was necessary for the children to travel with one or both parents to Poland in the event of a court hearing in Poland concerning the children.
The order also validated the parties’ agreement as to the following points: the children should remain living in their family house in Brighton and the parents should live with them on alternate weekly, 7 day pattern; no other party should occupy the property during the other parent’s period of occupation; and in the week that each parent was not residing with the children, the resident parent should make the children available for contact with the other parent on a Wednesday afternoon.
The order was to remain in force until such time as either the English or Polish courts have made a determination in respect of where the children should reside. It was also noted that, the proceedings in the United Kingdom would be stayed in the event it was confirmed by the Polish court that there were applications which pre-dated the application in the English court; and that the Polish court determined that it had first been seized of the application related to the children.
On 5 August 2016 the Family Court in Brighton considered that K.Z. had not breached its order of 18 July 2016 as she had removed the children from the jurisdiction as it had been necessary for them to attend a court hearing in Poland. The English court ordered that the children were expected to return to the United Kingdom by 10 August 2016 at the latest. The court also removed its earlier stay of the proceedings clause in view of the Polish court’s declining of jurisdiction over the case on 14 July 2016.
On 14 November 2017 the Family Court in London issued a judgment, declaring that: on 2 June 2014 and 4 July 2016, the children had habitually been resident in England and that the Family Court of England and Wales had exclusive jurisdiction to determine the welfare proceedings in relation to the children. The court also ordered that K.Z. should return the children to England and Wales by no later than 15 December 2017 and that, following their return, the children should live at their family home in Brighton and the parents should make the children available for contact in accordance with agreed arrangements set out in the order of 18 July 2016.
On 30 January 2018 the Family Court in London upheld its decision of 14 November 2017 and ruled that K.Z. was to return the children by 27 February 2018 on pain of being held in contempt of court, imprisonment, fine or the seizure of assets.
3. Proceedings under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“Hague Convention”)
On 4 October 2016 the applicant’s application for a return order for the children under the Hague Convention was registered with the Łódź District Court. Judge K.R. was assigned as single judge in the case.
In response to the applicant’s request, K.Z. submitted that Poland was the centre of the family life and, hence, taking the children back to Poland on 29 July 2016 did not constitute wrongful abduction within the meaning of the Hague Convention.
On 5 December 2016 the district court held a hearing.
On 7 December 2016 it dismissed the applicant’s Hague Convention request to have the children returned.
The court made its findings of fact, inter alia, on the basis of the submissions of the parties; the report regarding the maternal grandparents and home environment in Poland, prepared by a guardian, presumably appointed by the court in the course of the divorce or childcare proceedings; the report of the kindergarten’s mistress; incidents reports drawn up by the Brighton police; report of the British social worker from the children’s examination on 6 July 2016; records of emails sent between the parties regarding the couple’s plans for a divorce and their quarrels; certificate from centres helping the victims of domestic violence in Poland and in the United Kingdom; the materials of the case for restricting the applicant’s parental rights and the criminal inquiry carried out in Poland into K.Z.’s allegations of domestic violence.
As to the law, the court firstly held that the applicant’s children had not been wrongfully removed or retained within the meaning of Article 3 of the Hague Convention on account of the fact that Poland was their habitual residence. To this end the court relied on the principle that the place of habitual residence was determined against an objective element, namely a child’s long-term and steady residence in a place in which the child satisfied all his or her needs, irrespective of the intention, on the part of the child’s guardians, whether or not to take up permanent residence there (Supreme Court’s decision of 26 September 2000, no. I CKN 776/00). The first‑instance court thus observed that, in June 2016, the applicant had agreed to the family’s move to Poland and that frequent travelling between that country and the United Kingdom was their well-established practice. The applicant’s children had been born and had spent most of their lives in Poland, together with their mother who exercised custody. The children had Polish insurance and residence registration. They received medical care in Poland and, most importantly, they spoke Polish and not English. In the United Kingdom, the children had no circle of friends, partly in view of the language barrier, and no relatives lived there. Various elements of the family’s life in the United Kingdom, which had been raised by the applicant in the course of the proceedings, such as K.Z.’s car registration, the extension of the couple’s mortgage, receiving benefits and medical care for the children, K.Z.’s employment in her husband’s company for one year and her payment of taxes, did not undermine, in the court’s view, the fact that Poland was the children and K.Z’s habitual residence, in particular, as the mother had not ceased working and had kept the ownership of an apartment there.
Secondly, the district court attached importance to the applicant’s taking of the children from Poland to Hungary without the mother’s knowledge or consent and to the stipulated fact that for ten days the children did not have any contact with their mother. It also took notice of the proceedings which were pending before the Family Court in Brighton, stayed until the confirmation of the jurisdiction by the Polish court.
Thirdly, the district court observed that, irrespective of the above findings, the basis for the refusal to have the children returned to the applicant was Article 13 (b) of the Hague Convention. The court acknowledged that the burden of proving the existence of specific circumstances which could fall under that provision, rested on K.Z. In the court’s view, the children would be at grave risk of suffering psychological harm or otherwise of being placed in an intolerable situation, as they were likely to continue witnessing their father’s violence and abuse of their mother. To this end, the court found that sufficient evidence had been presented to confirm that, from 2014 or possibly earlier, the children had witnessed such violence. Moreover, the court condemned the applicant’s parenting methods, such as leaving his crying daughter in a room and the physical violence used by the paternal grandfather towards his grandson. The court also excluded the option, sought by the applicant, of separating the siblings, in view of their strong emotional bond. Lastly, the court considered that, if the children were to return to the United Kingdom and were to live with the applicant, they would be at risk of mental and physical suffering because of the applicant’s practices of feeding them food collected from trashcans; the lack of safe home environment since a part of the applicant’s house served as a hostel, with rooms being rented out to strangers; and because of the risk that the children would be neglected in view of the real fear that the applicant would frequently travel to Hungary (where he kept beehives), leaving the children with a nanny; in view of the fact that the applicant’s daughter only spoke Polish and, thus, would not be able to communicate her needs to her father; and that the applicant favoured his son and had a weak bond with his daughter.
On 26 January 2017 the Łódź Regional Court dismissed the complaint under the 2004 Act on complaints about a breach of the right to a trial within a reasonable time, which had been lodged by the applicant on 29 November 2016 when the first-instance proceedings had been ongoing. The court held that the impugned proceedings had not been marked by delays. The first hearing in the case was scheduled on 18 November 2016, that is, at the earliest possible date, considering that the presiding judge had had been examining other cases and had planned holidays. Later, the case was adjourned to 5 December 2016 in view of an objective obstacle, namely the hospitalisation of the parties’ daughter.
On 13 June 2017 the Łódź Regional Court dismissed the applicant’s appeal against the first-instance decision on the merits of his Hague Convention application. The appellate court adhered to the findings of fact and law of the first-instance court. In particular, it observed that the conclusion that the children’s habitual residence had been in Poland was convincing as it was based on a series of various elements confirming the children’s link with that country. The appellate court also attached importance to the strong bond between the two siblings and the doubts as to the applicant’s ability to take care of his young daughter in view of the fact that she did not speak Hungarian.
4. The applicant’s contact with the children
a) The first application for contact
On 17 January 2017 the applicant applied to have his contact rights secured ad interim, namely to be granted access to the children from 27 to 30 January, from 24 to 27 February, and on 24 March 2017. The applicant submitted that, since the children’s departure from the United Kingdom, K.Z. had been restricting his contact with the children by arbitrarily deciding on his visits and by disturbing them.
On 9 February 2017 the Łódź District Court, with K.R. as single judge, dismissed this application, holding that the applicant had failed to justify his claim. In particular, when lodging his application for the children’s return or while those proceedings were pending before the first-instance court, the applicant had not applied for contact under Article 21 of the Hague Convention. The court also observed that, even though the divorce proceedings were stayed, the Polish family court was still authorised to rule on the contact rights ad interim.
On 13 June 2017 the Łódź Regional Court dismissed the applicant’s interlocutory appeal against the decision on the interim measure of 9 February 2017.The court reiterated that the applicant had not originally sought contact rights under Article 21 of the Hague Convention and that all childcare issues would thoroughly be examined and settled by the family court which was handling the couple’s divorce.
(b) The second application for contact
On 13 July 2016 K.Z. filed for divorce before the Łódź Regional Court.
On 3 March 2017 the applicant lodged with the family court which was handling his divorce case, an application for an interim measure regarding his contact with the children.
On 9 May 2017 the Łódź Regional Court decided to grant the applicant the right to contact his children by Skype or telephone on selected days three times per week and to visit, each of them separately, on the first and third weekend of the month outside their house in Poland, in K.Z.’s presence. The court obliged K.Z. to facilitate the contact and not to disturb the visits.
Following the appeal of both parties, on 25 October 2017 the Łódź Court of Appeal changed the first-instance decision in that it allowed the applicant to have his visits with both children at the same time and to pick them up from their home, according to the previous schedule.
On 30 June 2017 the applicant, who was represented by a lawyer, requested under Article 7562 of the Code of Civil Procedure that a payment order be imposed on K.Z. for any instance of non-compliance with the contact obligations.
On 27 November 2017 the Łódź Regional Court rejected this application as lodged out of time in view of the ruling of 9 May 2017, as amended on appeal. The court observed that, under the applicable law, the pain of payment for non-compliance with contact obligations cannot be ordered after the family court had determined the contact obligations.
It appears that the applicant’s divorce proceedings are on‑going in Poland. No documents to this effect have been submitted.
(c) The enforcement of the contact right
The applicant stated that, because of K.Z. “non-compliance”, he was not exercising his contact rights. He did not provide any further details on this subject.
B. Relevant domestic law and practice, and international and comparative law
The relevant domestic law and practice, and international and comparative law are set out in the judgment in the case of K.J.v. Poland, (no. 30813/14, §§ 33-42, 1 March 2016).
COMPLAINTS
The applicant complains under Articles 8 and 14 of the Convention and Article 5 of Protocol No. 7 to the Convention essentially, that the Polish court did not order the return of his children; and that it sanctioned the children’s alienation from the applicant by not deciding the Hague Convention case in a speedily manner, and by not regulating the applicant’s contact rights for the duration of these proceedings. In particular, the applicant submits that the Polish court took over eight months to rule on his Hague Convention request. All the decisions regarding the children in the course of various proceedings were taken by the same single judge and were based on the erroneously broad interpretation of Article 13 of the Hague Convention, the inadmissible assumption that the mother was not going to accompany the children if they were to be returned even though no objective obstacles to her return had been invoked, and on inadequate assessment of the evidence regarding the allegations of domestic violence. The Polish court also attached no importance to the rulings of the English family court in respect of the children’s habitual residence.
QUESTION TO THE PARTIES
In view of the decision-making process and the outcome of the Hague Convention proceedings concerning the return of the applicant’s children, has there been a violation of the applicant’s right to respect for his family life, contrary to Article 8 of the Convention (see K.J. v. Poland, no. 30813/14, 1 March 2016 and G.N. v. Poland, no. 2171/14, 19 July 2016)?
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