Communicated on 9 March 2018<\/p>\n
FIRST SECTION
\nApplication no.80606\/17
\nGyorgyMOGA
\nagainst Poland
\nlodged on 16 November 2017
\nSTATEMENT OF FACTS<\/p>\n
The applicant, Mr GyorgyMoga, is a Hungarian national, who was born in 1978 and lives in Brighton.<\/p>\n
A.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n The facts of the case, as submitted by the applicant, may be summarised as follows.<\/p>\n 1.\u00a0\u00a0Background<\/em><\/p>\n 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.<\/p>\n 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.<\/p>\n The applicant works as a physician in Brighton. K.Z. is a psychologist, who worked, at intervals, in the United Kingdom and in Poland.<\/p>\n 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discontinued an investigation into the allegations of domestic violence committed by the applicant, as K.Z. had withdrawn her crime notice.<\/p>\n Also, in July 2014, the \u0141\u00f3d\u017a District Court (S\u0105dRejonowy) discontinued proceedings for restricting the applicant\u2019s parental rights.<\/p>\n In 2015 and 2016 K.Z. sought assistance with a psychologist in Poland and with a Britain\u2019s association working with the victims of domestic violence.<\/p>\n In June 2016 the family moved to Poland and started undertaking various steps to settle there.<\/p>\n Several days later the applicant,without K.Z.\u2019s 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\u2019s 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.<\/p>\n On 29\u00a0July 2016 K.Z. retrieved the children from the applicant and returned with them to Poland.<\/p>\n Since that time, the children have been living with their mother in their maternal grandparents\u2019 house in \u0141\u00f3d\u017a. The applicant\u2019s 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\u2019s daughter speaks Polish only.<\/p>\n 2.\u00a0\u00a0Proceedings concerning the children\u2019s residence<\/em><\/p>\n (a)\u00a0\u00a0Proceedings in Poland<\/p>\n On 14 July 2016 the \u0141\u00f3d\u017a District Court, with K.R. as single judge, declined jurisdiction, to examine K.Z.\u2019s application to establish the children\u2019s 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\u2019s 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\u2019s 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.<\/p>\n An interlocutory appeal against this decision was lodged, as it appears by K.Z.<\/p>\n On 5 August 2016 the \u0141\u00f3d\u017a 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\u2019s residence was with their mother. The court considered that, at the date when the initial application concerning the children\u2019s 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\u2019s taking of the children abroad without K.Z.\u2019s consent, the court considered that an interim order was necessary.<\/p>\n On 6 October 2017 the \u0141\u00f3d\u017a District Court, with K.R. as presiding judge, stayed these proceedings until the completion of the couple\u2019s divorce case.<\/p>\n (b)\u00a0\u00a0Proceedings in the United Kingdom<\/p>\n 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.<\/p>\n The order also validated the parties\u2019 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\u2019s 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.<\/p>\n 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.<\/p>\n 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\u2019s declining of jurisdiction over the case on 14 July 2016.<\/p>\n 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.<\/p>\n On 30 January 2018 the Family Court in London upheld its decision of 14\u00a0November 2017 and ruled that K.Z. was to return the children by 27\u00a0February 2018 on pain of being held in contempt of court, imprisonment, fine or the seizure of assets.<\/p>\n 3.\u00a0\u00a0Proceedings under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (\u201cHague Convention\u201d)<\/em><\/p>\n On 4 October 2016 the applicant\u2019s application for a return order for the children under the Hague Convention was registered with the \u0141\u00f3d\u017a District Court. Judge K.R. was assigned as single judge in the case.<\/p>\n In response to the applicant\u2019s request, K.Z. submitted that Poland was the centre of the family life and, hence, taking the children back to Poland on 29\u00a0July 2016 did not constitute wrongful abduction within the meaning of the Hague Convention.<\/p>\n On 5 December 2016 the district court held a hearing.<\/p>\n On 7\u00a0December 2016 it dismissed the applicant\u2019s Hague Convention request to have the children returned.<\/p>\n 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\u2019s mistress; incidents reports drawn up by the Brighton police; report of the British social worker from the children\u2019s examination on 6 July 2016; records of emails sent between the parties regarding the couple\u2019s 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\u2019s parental rights and the criminal inquiry carried out in Poland into K.Z.\u2019s allegations of domestic violence.<\/p>\n As to the law, the court firstly held that the applicant\u2019s children had not been wrongfully removed or retained within the meaning of Article\u00a03 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\u2019s 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\u2019s guardians, whether or not to take up permanent residence there (Supreme Court\u2019s decision of 26 September 2000, no.\u00a0I CKN 776\/00). The first\u2011instance court thus observed that, in June 2016, the applicant had agreed to the family\u2019s move to Poland and that frequent travelling between that country and the United Kingdom was their well-established practice. The applicant\u2019s 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\u2019s life in the United Kingdom, which had been raised by the applicant in the course of the proceedings, such as K.Z.\u2019s car registration, the extension of the couple\u2019s mortgage, receiving benefits and medical care for the children, K.Z.\u2019s employment in her husband\u2019s company for one year and her payment of taxes, did not undermine, in the court\u2019s view, the fact that Poland was the children and K.Z\u2019s habitual residence, in particular, as the mother had not ceased working and had kept the ownership of an apartment there.<\/p>\n Secondly, the district court attached importance to the applicant\u2019s taking of the children from Poland to Hungary without the mother\u2019s 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.<\/p>\n 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\u2019s 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\u2019s 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\u2019s 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\u2019s practices of feeding them food collected from trashcans; the lack of safe home environment since a part of the applicant\u2019s 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\u2019s 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.<\/p>\n On 26 January 2017 the \u0141\u00f3d\u017a 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\u00a0November 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\u2019 daughter.<\/p>\n On 13 June 2017 the \u0141\u00f3d\u017a Regional Court dismissed the applicant\u2019s 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\u2019s habitual residence had been in Poland was convincing as it was based on a series of various elements confirming the children\u2019s 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\u2019s ability to take care of his young daughter in view of the fact that she did not speak Hungarian.<\/p>\n 4.\u00a0\u00a0The applicant\u2019s contact with the children<\/em><\/p>\n a)\u00a0\u00a0The first application for contact<\/p>\n 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\u00a0January, from 24 to 27 February, and on 24 March 2017. The applicant submitted that, since the children\u2019s 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.<\/p>\n On 9 February 2017 the \u0141\u00f3d\u017a 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\u2019s 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.<\/p>\n On 13 June 2017 the \u0141\u00f3d\u017a Regional Court dismissed the applicant\u2019s interlocutory appeal against the decision on the interim measure of 9\u00a0February 2017.The court reiterated that the applicant had not originally sought contact rights under Article\u00a021 of the Hague Convention and that all childcare issues would thoroughly be examined and settled by the family court which was handling the couple\u2019s divorce.<\/p>\n (b)\u00a0\u00a0The second application for contact<\/p>\n On 13 July 2016 K.Z. filed for divorce before the \u0141\u00f3d\u017a Regional Court.<\/p>\n 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.<\/p>\n On 9 May 2017 the \u0141\u00f3d\u017a 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.\u2019s presence. The court obliged K.Z. to facilitate the contact and not to disturb the visits.<\/p>\n Following the appeal of both parties, on 25 October 2017 the \u0141\u00f3d\u017a 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.<\/p>\n 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.<\/p>\n On 27 November 2017 the \u0141\u00f3d\u017a 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.<\/p>\n It appears that the applicant\u2019s divorce proceedings are on\u2011going in Poland. No documents to this effect have been submitted.<\/p>\n (c)\u00a0\u00a0The enforcement of the contact right<\/p>\n The applicant stated that, because of K.Z. \u201cnon-compliance\u201d, he was not exercising his contact rights. He did not provide any further details on this subject.<\/p>\n B.\u00a0\u00a0Relevant domestic law and practice, and international and comparative law<\/strong><\/p>\n The relevant domestic law and practice, and international and comparative law are set out in the judgment in the case of K.J.v.\u00a0Poland, (no.\u00a030813\/14, \u00a7\u00a7 33-42, 1 March 2016).<\/p>\n COMPLAINTS<\/strong><\/p>\n 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\u2019s alienation from the applicant by not deciding the Hague Convention case in a speedily manner, and by not regulating the applicant\u2019s 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\u2019s habitual residence.<\/p>\n QUESTION TO THE PARTIES<\/strong><\/p>\n In view of the decision-making process and the outcome of the Hague Convention proceedings concerning the return of the applicant\u2019s children, has there been a violation of the applicant\u2019s right to respect for his family life, contrary to Article 8 of the Convention (see K.J. v.\u00a0Poland, no.\u00a030813\/14, 1 March 2016 and G.N. v. Poland, no. 2171\/14, 19\u00a0July 2016)?<\/p>\n