FIRST SECTION
\nCASE OF OLLER KAMI\u0143SKA v. POLAND
\n(Application no. 28481\/12)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n18 January 2018<\/p>\n
FINAL
\n18\/04\/2018<\/p>\n
This judgment has become final under Article 44 \u00a7 2 of the Convention. It may be subject to editorial revision.<\/p>\n
In the case of Oller Kami\u0144ska v. Poland,<\/strong><\/p>\n The European Court of Human Rights (First Section), sitting as a Chamber composed of:<\/p>\n Linos-Alexandre Sicilianos, President, Having deliberated in private on 12 December 2017,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 28481\/12) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by aPolishnational, Ms Anita Oller Kami\u0144ska (\u201cthe applicant\u201d), on 23 April 2012.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Mr G. Thuan Dit Dieudonn\u00e9, a lawyer practising in Strasbourg. The Polish Government (\u201cthe Government\u201d) were represented by their Agent, Ms J. Chrzanowska, of the Ministry of Foreign Affairs.<\/p>\n 3.\u00a0\u00a0The applicant alleged that she had suffered a violation of her right to respect for her family life on account of the Polish authorities\u2019inability to swiftly reunite her with her daughter, despite two Irish court orders, after she had been abducted by her father and taken to Poland.The applicant relied on Articles 6 and 8 of the Convention.<\/p>\n 4.\u00a0\u00a0On 29 January 2015 the application was communicated to the Government.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 5.\u00a0\u00a0The applicant was born in 1973 and lives in Galway, Ireland.<\/p>\n A.\u00a0\u00a0The background and the removal of the child<\/strong><\/p>\n 6.\u00a0\u00a0On 27 March 2000 the applicant gave birth to a child, a girl named A. She was married at the time to the child\u2019s father, M.K., and lived in Poland. She already had a son from a previous relationship, B, born in 1993.<\/p>\n 7.\u00a0\u00a0In 2006 the family moved to Ireland. They lived there together until January 2009, when the couple split up and M.K. moved back to Poland.<\/p>\n 8.\u00a0\u00a0In June 2009 M.K. went to Ireland on holiday and said he intended to take A to Poland for the summer holidays.The applicant was concerned whether M.K. would return the child to Ireland after their holidays in Poland. On 29 June 2009 she instituted proceedings before Ennis District Court under the Guardianship of Infants Act of 1964, seeking declaration that the habitual residence of the child was in Ireland and that the child was to return to Ireland on 15\u00a0August 2009.<\/p>\n 9.\u00a0\u00a0On 2 July 2009 the Ennis District Court issued a consent orderas an interim measure. It stated that the child could visit Poland between 7\u00a0July and 15\u00a0August 2009 with M.K. and established that her habitual residence was in Ireland. Other custody matters were adjourned to the next hearing, scheduled for 15 September 2009. On the latter day the court issued a certificate of enforceability of the order of 2 July 2009, pursuant to Article\u00a042 of Council Regulation (EC) No. 2201\/2003 of 27\u00a0November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, repealingRegulation (EC) No 1347\/2000\u00a0(\u201cthe Brussels II bis Regulation\u201d).<\/p>\n 10.\u00a0\u00a0M.K. failed to return A to her mother on 15\u00a0August 2009.<\/p>\n B.\u00a0\u00a0The custody proceedings in Ireland<\/strong><\/p>\n 11.\u00a0\u00a0On 15 September 2009 the Ennis District Court decided that A\u2019s residence would be in Ireland with her mother, who was granted sole custody. The court also ordered the return of the child to the applicant. On 17 September 2009 it also issued a certificate of enforceability of the order pursuant to Article 42 of the Brussels IIbis Regulation.<\/p>\n 12.\u00a0\u00a0M.K. appealed against the order of 15 September 2009 but the appeal was dismissed by the Limerick Circuit Family Court on 10\u00a0December 2009.<\/p>\n C.\u00a0\u00a0Proceedings in Poland for A\u2019s return to Ireland<\/strong><\/p>\n 1.\u00a0\u00a0The Hague Convention proceedings<\/em><\/p>\n 13.\u00a0\u00a0In September 2009 the applicant applied to the Polish Ministry of Justice \u2013 designated as the Central Authority under the Hague Convention on the Civil Aspects of International Child Abduction (\u201cthe Hague Convention\u201d) \u2013 for assistance in securing the return of the child.<\/p>\n 14.\u00a0\u00a0On 6 October 2009 the Malbork District Court heard the applicant\u2019s application and M.K.\u2019s counterclaim to dismiss the case. It decided to commission an expert opinion from the Regional Family Consultation Centre (Rodzinny O\u015brodek Diagnostyczno-Konsultacyjny \u2013 \u201cRODK\u201d).<\/p>\n 15.\u00a0\u00a0On 18 December 2009 the Malbork District Court rejected the applicant\u2019s application under the Hague Convention to return A to her. The court based its decision on Article 13, stating that the Polish authorities were not bound to return the child since there was a risk she would be exposed to physical or psychological harm or otherwise placed in an intolerable situation. The court supported its reasoning by referring to the findings of the RODK and other social and psychological studies. In particular, the court highlighted that the RODKreporthad stated that A wished to remain in Poland. The RODK had also stated that M.K. was closer to A and more attentive to her particular needs than the applicant. It was found that although the applicant was also an important person in A\u2019s life, the child saw her actions as going against her own wishes and placing her in uncomfortable situations.<\/p>\n 16.\u00a0\u00a0On 18 May 2010 the Gda\u0144sk Regional Court dismissed an appeal by the applicant. The court took into account the preference of A to stay with her father. The child, at that time nine-years-old, was considered by the experts as mature and aware of her family situation.<\/p>\n 2.\u00a0\u00a0Enforcement of the Ennis District Court order of 15\u00a0September 2009<\/em><\/p>\n 17.\u00a0\u00a0On 15 October 2009 the applicant applied to the Polish authorities to recognise and enforce the Ennis District Court\u2019s order of 15 September 2009.<\/p>\n 18.\u00a0\u00a0On 18 November 2009 the applicant requested that the proceedings be dealt with more speedily and that an earlier date for hearing the case be scheduled. The applicant underlined her lack of contact with her daughter.<\/p>\n 19.\u00a0\u00a0On 4 December 2009 the Gda\u0144sk Regional Court decided to enforce the Irish order of 15 September 2009. M.K. appealed to the Gda\u0144sk Court of Appeal.<\/p>\n 20.\u00a0\u00a0On 22 June 2010 the Gda\u0144sk Court of Appeal quashed the decision of the Gda\u0144sk Regional Court of 4 December 2009. The court decided that the Irish court had ruled on parental responsibility and that judgment could not be reconciled with the subsequent judgment of the Polish court of 18\u00a0December 2009 dismissing the applicant\u2019s claim for the child\u2019s return under the Hague Convention. The Irish decision was therefore no longer enforceable in Poland.<\/p>\n 21.\u00a0\u00a0The applicant lodged a cassation appeal.<\/p>\n 22.\u00a0\u00a0On 24 August 2011 the Supreme Court quashed the Court of Appeal\u2019s ruling and remitted the case for re-examination. The Supreme Court firstly reiterated that the provisions of the Brussels II bis Regulation were binding and directly applicable. Secondly, the court explained that the purpose of a ruling under the Hague Convention was the prompt return of a child to the countryof his or her habitual residence. A decision to return a child or a decision to refuse such a return under Articles 12, 13 and 20 of the Hague Convention could not be understood as containing a ruling on matters of custody or parental responsibility. The reasonsfor a decision not to return a child under Article 13 (b) were factual in nature and could not create a new custodial right. That hadalso been set out in Article 10 of the Hague Convention. Thirdly, the exception allowing for a refusal to enforce a judgment provided for in Article 23 (e) of the Brussels II bis Regulation required the existence of a later and contradictory ruling relating to parental responsibility. The decision of 18 December 2009 issued under Article\u00a013 (b) of the Hague Convention could not be considered as such a ruling.<\/p>\n 23.\u00a0\u00a0On 28 February 2012 the Gda\u0144sk Court of Appeal refused to declare that the order of 15 September 2009 was enforceable on the grounds that the High Court of Ireland had made a new custody order on 9\u00a0September 2011 (see paragraph 27 below).<\/p>\n D.\u00a0\u00a0Further proceedings in Ireland for A\u2019s return<\/strong><\/p>\n 24.\u00a0\u00a0On 4 October 2010 the applicant lodged an application in Ireland for enforcement of the Ennis District Court\u2019s decision of 15\u00a0September 2009 and the return of A to her.<\/p>\n 25.\u00a0\u00a0On 28 January 2011 the High Court of Ireland gave an interim order. It considered that the Irish courts had jurisdiction to decide on the custody of A and had retained that jurisdiction after her wrongful removal in August\u00a02009.<\/p>\n 26.\u00a0\u00a0On 28 August 2011 a court-commissioned clinical psychological report was published. The expert involved interviewed the applicant, A and M.K. She found that both parents had the ability to provide a stable and loving home environment for A and that their care and affection was important to her emotional, social and psychological wellbeing. The report recommended that the court should take account of the wish A had expressed to attend school in Poland and to consider an arrangement whereby the child lived with her father during school termsand spend her holidays in Ireland. The report also stated that firm arrangements should be put in place by the court for the timethat A was to spend in her mother\u2019s care and for the father\u2019s access during those times since, if there was room for parental discretion, the time allocated was likely to be reduced. That was especially important because there was a risk thatM.K. would interfere with the development of the child\u2019s confidence and security in her mother\u2019s care owing to the father\u2019s belief in the importance of his constant input in A\u2019s life.<\/p>\n 27.\u00a0\u00a0On 9 September 2011 the High Court of Ireland gave a judgment superseding the order of 15 September 2009. The court decided to grant joint custody to both parents, but still ordered the child\u2019s return to Ireland by 2\u00a0November 2011. The court decided that A should finish the school year in Ireland and start the next one, from September 2012, in Poland. The judgment also set out which parts of the school holidays A should spend with the applicant and which with M.K.<\/p>\n 28.\u00a0\u00a0M.K. unsuccessfully appealed against the judgment and was refused a stay in the order on 21 October 2011.<\/p>\n E.\u00a0\u00a0Proceedings in Poland concerning the enforcement of the Irish decision of 9 September 2011<\/strong><\/p>\n 29.\u00a0\u00a0In October 2011 the applicant lodged an application with the Polish Ministry of Justice to enforce the judgment of the High Court of Ireland of 9\u00a0September 2011 and for the return of the child to her. The Polish Ministry of Justice advised the Irish Central Authority to lodge an application with the relevant court in Poland for the compulsory removal of the child.<\/p>\n 30.\u00a0\u00a0On 28 November 2011 the applicant lodged a request through the Irish Central Authority to have A returned to her.<\/p>\n 31.\u00a0\u00a0From October 2011 to January 2012 the Irish and the Polish Central Authorities corresponded with each other for the purposes of enforcing the Irish judgment of 9 September 2011.<\/p>\n 32.\u00a0\u00a0On 23 January 2012 the Irish Department of Justice, Equality and Law Reform received a letter from the Polish Ministry of Justice stating that the applicant\u2019s application for the compulsory removal of her daughter and her return to Ireland had been sent to the Gda\u0144sk District Court that day.<\/p>\n 33.\u00a0\u00a0On 25 January 2012 the Irish Family Liaison Judge for the European Judicial Network (EJN) sent a letter to the Polish Family Liaison Judge for the European Judicial Network, urging Poland to executethe High Court of Ireland\u2019s custody decision of 9 September 2011. Noting that M.K. had commenced divorce proceedings in which there was also a reference to custody, the letter also requested that the relevant judge in the divorce proceedings be made aware of the High Court of Ireland order of 9\u00a0September 2011.<\/p>\n 34.\u00a0\u00a0On 4 May 2012 the court appointed guardian interviewed A and submitted an opinion to the court. It stated that A had wished to stay in Poland where she had had home, school, and friends. A expressed her wish to have regular contacts with her mother via Skype. She felt her mother had been putting pressure on her to return to Ireland. The parental conflict made her follow a psychological treatment and take antidepressant medication.<\/p>\n 35.\u00a0\u00a0On 9 May 2012 the Malbork District Court held a hearing and encouraged the parties to reach agreement on a date for the child\u2019s return to Ireland. At the hearing M.K. explained that he had refused to comply with the Irish courts\u2019 orders because his daughter had been in a bad psychological state.<\/p>\n 36.\u00a0\u00a0On 28 June 2012 the Malbork District Court ordered A\u2019s removal from M.K. by a guardian on the basis of Article 598 \u00a76 of the Code of Civil Procedure. The court also ordered that its decision was immediately enforceable.<\/p>\n 37.\u00a0\u00a0On 6 July 2012 the applicant and the guardian arrived at M.K.\u2019s place of residence to take the child away, but found no one there.<\/p>\n 38.\u00a0\u00a0On 9 July 2012 the guardian made a further attempt to remove the child but their home was again empty. On 13 July 2012 the guardian made a third unsuccessful attempt to remove the child. On 24\u00a0July 2012 the guardian requested that the police intervene.<\/p>\n 39.\u00a0\u00a0On 7 September 2012 the Malbork District Court discontinued proceedings for the compulsory execution of the decision by the Irish court of 9 September 2011. The court considered that the applicant\u2019s right to demand A\u2019s return to Ireland had effectively expired on 31 August 2012 and that, as of that day, there was no executory title which could provide groundsfor proceedings to be carried out effectively. It found that the original 2011 Irish order had stated that A was to start the 2012 school year in Poland and so her compulsory removal, as a minor, was not allowed.<\/p>\n 40.\u00a0\u00a0On 26 September 2012 the applicant met A outside her school and travelled to Ireland with her.<\/p>\n 41.\u00a0\u00a0On 12 November 2012 the Gda\u0144sk Regional Court quashed the Malbork District Court findings of 7 September 2012, stating that the return order remained valid.<\/p>\n F.\u00a0\u00a0Proceedings in Ireland after A\u2019s return<\/strong><\/p>\n 42.\u00a0\u00a0On 21 October 2012 the applicant applied to the High Court of Irelandfor an order prohibiting A\u2019s removal from that country by any person save the applicant, unless she had given her consent or a court had given leave. During the subsequent proceedings M.K. made requests to have unsupervised contact with A by telephone or Skype. The court commissioned an expert opinion and held hearings.<\/p>\n 43.\u00a0\u00a0On 24 June 2013 the parties reached an agreement. The terms of the agreement stated thatthe applicant would have sole custody of A for the following year, pending review by the court in July 2014. It also set out M.K.\u2019s access rights, which provided that during his visits to Ireland he would have to give two weeks\u2019 notice to the applicant and could see the child on Saturdays from 1.30 p.m. to 7\u00a0p.m. and on Sundays from 11 a.m. to 7 p.m. Access during the school holidays would take place in Ireland, but could be for longer periods and on weekdays.<\/p>\n G.\u00a0\u00a0Proceedings brought by M.K. to secure the return of A<\/strong><\/p>\n 44.\u00a0\u00a0On 8 October 2012 M.K. brought proceedings in the Polish courts for an order that A be returned to him.<\/p>\n 45.\u00a0\u00a0On 11 January 2013 the Malbork District Court excluded the presiding judge from taking part in the proceedings owing to close personal ties with M.K.\u2019s mother.<\/p>\n 46.\u00a0\u00a0On 11 February 2013 the Malbork District Court rejected M.K.\u2019s action, stating that the Irish courts had jurisdiction given A\u2019s habitual place of residence. M.K. lodged an appeal.<\/p>\n 47.\u00a0\u00a0On 22 March 2013 the Malbork District Court appointed a legal guardian to represent A\u2019s interests in proceedings concerning the applicant\u2019s taking of A to Ireland without M.K.\u2019s consent.<\/p>\n 48.\u00a0\u00a0On 6 May 2013 the Gda\u0144sk Regional Court quashed the decision of the Malbork District Court of 11 February 2013. The court decided that in accordance with the decision of the Gda\u0144sk Regional Court in its decision of 4 July 2011 (see paragraph 52below) A\u2019s place of residence was with her father in Malbork.<\/p>\n 49.\u00a0\u00a0Following the quashing, M.K.\u2019s motion had to be returned to the lower court. There is no information about the course of the proceedings afterwards.<\/p>\n H.\u00a0\u00a0The divorce proceedings and finalising the dispute<\/strong><\/p>\n 50.\u00a0\u00a0In July 2009 M.K. initiated divorce proceedings before the Gda\u0144sk District Court, which were subsequently stayed pending the determination of the application concerning the child\u2019s return.<\/p>\n 51.\u00a0\u00a0On 16 March 2011 M.K. applied for an interim order to establish that A\u2019s place of residence was with him during the proceedings.<\/p>\n 52.\u00a0\u00a0On 4 July 2011 the Gda\u0144sk Regional Court granted M.K. an interim order establishing that he should have custody over A for the duration of the proceedings. The court considered that the child\u2019s place of residence was in Poland. The court reasoned that, although both parents had custody of A, M.K. was better placed to exercise parental rights as he had lived in Poland and had developed a strong bond with his daughter. M.K. provided a guarantee that A would be properly cared for. A was found by the court to have settled well in Malborksince she was doing well at school and had good relations with her fellow students. The court stated that in spite of the divorce proceedings in Poland the applicant had also gone to court in Ireland concerning A, thus giving rise to feelings of uncertainty in the child and the fear that she would be taken to Ireland against her will. The court found that such factors made it necessary to grant the injunction.<\/p>\n 53.\u00a0\u00a0On 17 October 2013 the Irish liaison judge for the EJN wrote to the Polish liaison judge informing him of the custody proceedings in Ireland, the agreement of 24 June 2013 made by the parties in relation to custody and access rights and the order of 25 June 2013 of the High Court of Ireland giving effect to that agreement. The letter requested that the information be passed on to the judge in the Polish divorce proceedings.<\/p>\n 54.\u00a0\u00a0On 30 October 2013 the Gda\u0144sk Regional Court granted a divorce between M.K. and the applicant, stating that they shared fault. The court refused to decide on issues of custody and access, referring to the agreement the parties had come to on 24 June 2013 in Ireland.<\/p>\n 55.\u00a0\u00a0On 13 May 2014 the Gda\u0144sk Court of Appeal dismissed an appeal by the applicantand upheld the first-instance judgment.<\/p>\n I.\u00a0\u00a0The applicant\u2019s contact with A<\/strong><\/p>\n 56.\u00a0\u00a0After M.K. failed to return the child on 15 August 2009, the applicant had no contact with her daughter for three months.<\/p>\n 57.\u00a0\u00a0On 8 October 2009 the applicant saw A for the first time during an interview conducted by court experts.<\/p>\n 58.\u00a0\u00a0On 18 December 2009 the applicant saw A in Poland at the court hearing but spent no time alone with her at any point.<\/p>\n 59.\u00a0\u00a0In May 2010 the applicant saw A in Poland overseveral consecutive days. She also saw her in February 2011 and attended her birthday party in March 2011.<\/p>\n 60.\u00a0\u00a0It appears that afterwards A went to Ireland upon a court order in July 2011. At that time A, the applicant, B and M.K were all interviewed by the High Court\u2019s expert.<\/p>\n 61.\u00a0\u00a0A has been in the care of the applicant since 26 September 2012 and they live inIreland.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n 62.\u00a0\u00a0An amendment to the 1964 Code of Civil Procedure (Kodeks Post\u0119powania Cywilnego), introduced on 19 July 2001 and which entered into force on 27 September 2001, regulates proceedings concerning the return of children (Articles 5981-59814 of the Code).<\/p>\n 63.\u00a0\u00a0Article5986provides that if a person obliged to surrender a child has not complied with the order, the court may request a guardian to remove the child.<\/p>\n 64.\u00a0\u00a0According to Article 59814aPolish court has to rule on enforcing a removal order issued by a foreign court. The general provisions relating to enforcement apply (Articles 1150-11512 and 11514).<\/p>\n III.\u00a0\u00a0RELEVANT INTERNATIONAL LAW AND EUROPEAN UNION\u00a0LAW<\/p>\n 65.\u00a0\u00a0The relevant provisions of the Hague Convention of 25\u00a0October 1980 on the Civil Aspects of International Child Abduction are set out in the judgment of X v. Latvia[GC], no. 27853\/09, \u00a7 34, ECHR\u00a02013.<\/p>\n 66.\u00a0\u00a0The relevant provisions of Council Regulation (EC) No.\u00a02201\/2003 of 27\u00a0November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347\/2000\u00a0(\u201cthe Brussels II bis Regulation\u201d), are set out in the case of M.A.v.\u00a0Austria, no.\u00a04097\/13, \u00a7\u00a7 68-69, 15\u00a0January 2015.<\/p>\n 67.\u00a0\u00a0The relevant provisions of the European Convention of 20\u00a0May 1980 on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children (known as \u201cthe Luxembourg Convention\u201d) are set out in the judgment K.J.v.\u00a0Poland, no.\u00a030813\/14, \u00a7 40, 1\u00a0March 2016.<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION<\/p>\n 68.\u00a0\u00a0The applicant complained that the Polish courts had violated her right to respect for her family life because they had failed to promptly reunite her with her daughter, as ordered by two Irish courts. She relied on Articles 6 and 8 of the Convention. This latter provision reads as follows:<\/p>\n \u201c1.\u00a0\u00a0Everyone has the right to respect for his private and family life, his home and his correspondence.<\/p>\n 2.\u00a0\u00a0There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well\u2011being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\u201d<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 69.\u00a0\u00a0The Court firstly considers that the main issue raised by the application concerns the applicant\u2019s right to respect for her family life, as provided for by Article 8 of the Convention. It therefore considers that its examination should exclusively address the issue raised under Article\u00a08 and that it is therefore not necessary to examine whether there has also been a violation of Article 6 \u00a7 1 of the Convention (see Raban v.\u00a0Romania, no.\u00a025437\/08, \u00a7 23, 26\u00a0October 2010).<\/p>\n 70.\u00a0\u00a0The Government raised a number of objections regarding the admissibility of the case.<\/p>\n 71.\u00a0\u00a0The Government submitted that the application constituted an abuse of the right of individual application under Article 35 \u00a7 3 of the Convention in that the applicant had kidnapped her daughter in September 2012 and removed her to Ireland. Her actionshad been contrary to the principle of the best interests of the child.<\/p>\n In addition, the Government raised a preliminary objection of failure to comply with the six-month time-limit for her complaint related to the proceedings instituted under the Hague Convention. This set of proceedings ended on 18 May 2010 while the applicant introduced her application to the Court almost two years later.<\/p>\n Finally, the Government argued that the applicant should have lodged a complaint under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w post\u0119powaniu s\u0105dowym bez nieuzasadnionej zw\u0142oki) (\u201cthe 2004 Act\u201d).<\/p>\n 72.\u00a0\u00a0The applicant contested the Government\u2019s submissions and argued that her application had been truthful and sincere. Her actions had not been illegal as she had had formal custody rights over A when she had taken her back to Ireland.<\/p>\n She further reiterated that her application concerned the authorities\u2019 failure to return the child to Ireland, disregarding the Irish decisions, and not exclusively the proceedings under the Hague Convention.<\/p>\n 73.\u00a0\u00a0The Court reiterates that in general any conduct by an applicant that is manifestly contrary to the purpose of the right of individual application as provided for in the Convention and which impedes the proper functioning of the Court or the proper conduct of the proceedings before it constitutes an abuse of the right of application (see Miro\u013cubovs and Others v.\u00a0Latvia, no.\u00a0798\/05, \u00a7\u00a7 62 and 65, 15 September 2009). In the present case, after over two years of unsuccessful attempts to obtain enforcement of the decisions ordering the return of the child, the applicant herself travelled with her daughter back to Ireland. At that time she had a final judgment of the Irish court granting her custody over A of 9 September 2011. The Government failed to provide any evidence that the removal of A by the applicant had been considered illegal in a final judicial decision. While the Court takes note of the decision of 4 June 2011 (see paragraph 52 above) it considers that the Government\u2019s assessment that the removal by the applicant was contrary to the best interest of the child has not been substantiated. Having regard to the above the Court finds no grounds whatsoever on which to hold that the present case was brought in abuse of the right of application.<\/p>\n 74.\u00a0\u00a0As regards the second objection raised by the Government, the Court notes that the present application is not limited to examination of the proceedings initiated by the applicant under the Hague Convention. The applicant complained that the Polish authorities\u2019 failed to reunite her with her daughter in spite of the Irish court order of 2009 and judgment of 2011. She introduced her application with the Court on 23\u00a0April 2012 and at that time the proceedings aiming at enforcement of custody orders had been pending. Accordingly, this complaint has not been introduced out of time and the Government\u2019s preliminary objection must be rejected.<\/p>\n 75.\u00a0\u00a0As regards the third objection, the Court observes that the 2004\u00a0Act introduced remedies, of both a remedial and compensatory character, concerning specifically the right to have cases examined within a reasonable time within the meaning of Article 6 \u00a7 1 of the Convention (see Charzy\u0144ski v.\u00a0Poland (dec.), no. 15212\/03, 1 March 2005; and Rutkowski and Others v.\u00a0Poland, nos. 72287\/10 and 2 others, \u00a7 178, 7 July 2015). However, in the present case it is not merely the excessive length of civil proceedings which is at issue, but the question of whether in the circumstances of the case seen as a whole, the State can be said to have complied with its positive obligations under Article 8 (see Kijowski v.\u00a0Poland, no.\u00a033829\/07, \u00a7\u00a044, 5\u00a0April 2011 and, as regards Article 2 of the Convention, Mojsiejew v.\u00a0Poland, no. 11818\/02, \u00a7\u00a042, 24 March 2009). The Court reiterates that in cases of this kind the adequacy of measures taken by the authorities is also to be judged by the swiftness of their implementation; they require urgent handling as the passage of time and change of circumstances can have irreparable consequences for relations between the children and the parent who does not live with them (see Ignaccolo-Zenide v.\u00a0Romania, no.\u00a031679\/96, \u00a7 102, ECHR 2000-I).<\/p>\n 76.\u00a0\u00a0The core of the present application is the allegation that the Polish authorities failed to take effective steps to enforce the applicant\u2019s right to have custody of her daughter and to order and promptly carry out her removal from Poland. In that connection, the Court notes that the applicant initiated proceedings to enforce the Irish court orders, contacted the Irish and Polish Central Authorities, requested that proceedings be accelerated and appealed against judgments refusing to enforce the Irish orders. Finally, the Court notes that in the period complained of the applicant was involved in several sets of proceedings concerning the Hague Convention, enforcement of the Irish court order of 2009 and the judgment of 2011, divorce proceedings and the proceedings initiated in 2012 by her former husband to return the child to him. Her allegationsunder Article 8 of the Convention are directed against all those proceedings and concern not only their length but also the way the Polish authorities handled the matter by, for instance, refusing to enforce the Irish court ordersand ruling on custody matters independently ofthe Irish authorities (see paragraphs 20, 23, 39, and 52 above).<\/p>\n 77.\u00a0\u00a0Against that background, the Court concludes that the applicant did everything that could reasonably have been expected of her to exhaust the national channels of redress (see Malec v.\u00a0Poland, no.\u00a028623\/12, \u00a7\u00a055, 28\u00a0June 2016,andP.F. v. Poland, no. 2210\/12, \u00a7 45, 16\u00a0September 2014).The Court thus rejects the Government\u2019s preliminary objection on that point.<\/p>\n 78.\u00a0\u00a0Consequently, the Court notes that the application is not manifestly ill\u2011founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 1.\u00a0\u00a0The parties\u2019 submissions<\/em><\/p>\n 79.\u00a0\u00a0The applicant asserted that the Polish courts had failed to take all the measures thatcouldreasonablyhave been expected ofthem to enforce the return orders.<\/p>\n 80.\u00a0\u00a0For their part, the Government, referring to the Court\u2019s case\u2011law in child abduction cases, observed that States were under a positive obligation to take all the measures that could reasonably be expected of them to enforce a decision ordering a child\u2019s return. The obligation was, however, not absolute but required the State to take the interests of all those concerned into account, in particular the well-being and rights of the child. They observed that the Court had frequently pointed out that the best interests of the child were of paramount importance.<\/p>\n 81.\u00a0\u00a0The Government conceded that the non-enforcement of the return orders had constituted an interference with the applicant\u2019s right to respect for her private and family life. Nevertheless, it had had a legal basis and had been necessary in a democratic society and thus had not been contrary to Article 8 of the Convention.<\/p>\n 2.\u00a0\u00a0The Court\u2019s assessment<\/em><\/p>\n (a)\u00a0\u00a0Principles established by the Court\u2019s case-law<\/p>\n 82.\u00a0\u00a0The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities. There may in addition be positive obligations inherent in an effective \u201crespect\u201d for family life. However, the boundaries between the State\u2019s positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are nonetheless similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see, among other authorities, M.A.v.\u00a0Austria, no. 4097\/13, \u00a7 104, 15\u00a0January 2015; Raw and Others v. France, no. 10131\/11, \u00a7 78, 7\u00a0March 2013; Maire\u00a0v. Portugal, no. 48206\/99, \u00a7 69, ECHR 2003\u2011VII; Sylvester v.\u00a0Austria, nos. 36812\/97 and 40104\/98, \u00a7 55, 24\u00a0April 2003; and Ignaccolo-Zenide v.\u00a0Romania, no. 31679\/96, \u00a7 94, ECHR 2000\u2011I).<\/p>\n 83.\u00a0\u00a0In relation to the State\u2019s positive obligations the Court has repeatedly held that Article 8 includes a parent\u2019s right to have measures taken with a view to being reunited with his or her child and an obligation on the national authorities to take such measures (Ignaccolo-Zenide, cited above, \u00a7\u00a094).<\/p>\n 84.\u00a0\u00a0The Court reiterates that the Convention must be applied in accordance with the principles of international law, in particular with those relating to the international protection of human rights. The Court considers that, in the area of international child abduction, the positive obligations that Article 8 of the Convention lays on the Contracting must be interpreted in the light of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (see, among others, Ignaccolo-Zenide, cited above, \u00a7 95) and the Convention on the Rights of the Child of 20\u00a0November 1989 (see, for example Maire, cited above, \u00a7 72), which attach paramount importance to the best interests of the child (see Raw and Others, cited above \u00a7 82;Neulinger and Shuruk v.\u00a0Switzerland [GC], no.\u00a041615\/07, \u00a7\u00a7 49-56 and 137, ECHR 2010; and X v.\u00a0Latvia, [GC], no.\u00a027853\/09, \u00a7\u00a7 93 and 96, ECHR 2013).<\/p>\n 85.\u00a0\u00a0Finally, the Court reiterates that in cases of this kind the adequacy of a measure is to be judged by the swiftness of its implementation (Raw and Others, cited above, \u00a7 83; Maire, cited above, \u00a7 74; and Ignaccolo-Zenide, cited above, \u00a7\u00a0102).<\/p>\n 86.\u00a0\u00a0In addition, the Court notes that the present case concerns the return of a child from one EU member State to another. In relations between EU member States the rules on child abduction contained in the Brussels II bis Regulation supplement those already laid down in the Hague Convention. Both instruments are based on the philosophy that in all decisions concerning children, their best interests must be paramount (see X\u00a0v. Latvia, cited above, \u00a7\u00a7 96-97, and M.A., cited above, \u00a7\u00a7\u00a0112\u2011114).<\/p>\n (b)\u00a0\u00a0Application of these principles to the present case<\/p>\n 87.\u00a0\u00a0The Court considers at the outset that the relationship between the applicant and her daughter amounted to \u201cfamily life\u201d within the meaning of Article\u00a08\u00a7\u00a01 of the Convention. That has not been disputed.<\/p>\n 88.\u00a0\u00a0The Court must also be aware of the context, which is an all\u2011important factor for the interpretation of treaties. The 1980 Hague Convention is not the only instrument regulating matters connected with child abduction in relations between Poland and Ireland. Both States are also parties to the 2003 Brussels II bis Regulation and the 1980 Luxembourg Convention. The 1980 Hague Convention itself has to be interpreted and applied in the context of those instruments.<\/p>\n 89.\u00a0\u00a0The main point to be assessed is whether the Polish authorities have taken all the measures that they could reasonably have been expected to take in order to ensure the applicant\u2019s family rights recognised by the judicial decisions. As regards the conduct of the domestic authorities in the instant case, it is uncontested that M.K. wrongfully retained A in August 2009. The child\u2019s habitual place of residence was Ireland and the applicant had obtained an interim order to that effect on 2 July 2009, before the child\u2019s trip to Poland (interim measure by the Ennis District Court, see paragraph\u00a09\u00a0above). On 15 September 2009 the applicant obtained an order from the Ennis District Court granting her sole custody of A and reiterating that Ireland was the child\u2019s place of residence (see paragraph 11 above). On 17\u00a0September 2009 the same court issued a certificate of enforceability under Article 42 of the Brussels II bis Regulation.<\/p>\n 90.\u00a0\u00a0The Polish authorities initiated enforcement proceedings on the basis of Article 1050 of the Code of Civil Procedure. The first decision ordering enforcement of the Ennis District Court\u2019s order of 15 September 2009 was given relatively quickly, on 4\u00a0December 2009. However, the proceedings were afterwards stayed owing to parallel proceedings initiated by the applicant for the return of the child to Ireland under the Hague Convention. Those proceedings lasted from September 2009 to 18 May 2010 at two levels of jurisdiction. The Court reiterates that in the context of the Hague Convention any inaction lasting more than six weeks may give rise to a request for a statement of reasons for the delay (see, for instance, Ignaccolo\u2011Zenide, cited above, \u00a7102). Although in the instant case the courts ordered expert evidence and heard the parties, the proceedings lasted nine months, which directly contributed to the length of the stayed enforcement proceedings. The outcome of the proceedings under the Hague Convention, in which the courts decided to apply Article 13 (b) of that instrument and refused the return of the child,was the basis for the judgment of the Gda\u0144sk Court of Appeal of 22 June 2010 refusing to enforce the Irish judgment of 15 September 2009 and quashing the previous judgment of 4\u00a0December 2009.<\/p>\n 91.\u00a0\u00a0Afterwards, the enforcement proceedings suffered a long delay owing to the cassation appeal lodged with the Supreme Court. After over one year, the Supreme Court quashed the Court of Appeal\u2019s judgment of 22\u00a0June 2010, reiterated the direct applicability of the Brussels II bis Regulation and underlined the fact that a decision refusing return issued under Article 13 of the Hague Convention could not be considered as deciding on custody matters. The Court notes that after that judgment the authoritieswere totally inactive for the following six months. There is no explanation for that delay. As a result, the proceedings by the applicant for enforcement of the judgment of 15 September 2009 did not finish until February 2012. The result was a refusal to enforce as in the meantime the Irish courts had issued a new judgment regarding parental responsibility over the child (decision of 9 September 2011, see paragraph 27above).<\/p>\n 92.\u00a0\u00a0Enforcement of the judgment of 9 September 2011, initiated in October 2011, did not effectively start until May 2012. The Irish and Polish Central Authorities corresponded with each other during those seven months. The Government failed to give any explanation for thatlack of activity. Although on 28 June 2012 the Malbork District Court ordered the child\u2019s removal, in compliance with the Irish judgment, that decision was quashed on 7\u00a0September 2012. The Polish court considered that the school year which A was to spend in Ireland had finished and that according to the judgment of 9\u00a0September 2011 A was to start the new school year in Poland. Such an approach was found to be incorrect in the subsequent decision of 12\u00a0November 2012, which confirmed that the return order was still valid. By then, however, the applicant herself had taken A back to Ireland.<\/p>\n 93.\u00a0\u00a0The Court thus concludes that there wasno enforcement of the judgment of 9\u00a0September 2011 for the first seven months and that it effectively took the Polish authorities over one year to decide that the Irish enforcement order was valid and enforceable. The applicant had nocontact with her daughter during that period.<\/p>\n 94.\u00a0\u00a0The Court notes that the Irish and Polish courts reached different conclusions as to what wasin the best interest of A when examining the family situation of the applicant, M.K., and their child. A\u2019s wishes were taken into account by the Polish authorities and they attached importance to her preference to live in Poland. Similarly the experts were in favour of keeping A in Poland since she had adapted well to her life in Malbork, succeeded at school and had strong and stable relationship with her father. The number of parallel and consequent proceedings in two jurisdictions, as explained above, resulted in the authorities reaching sometimes contradictory decisions. For instance, the interim order of 4\u00a0July 2011 granted M.K. custody rights and decided that A place of residence had been in Poland. That order, given in the divorce proceedings, had apparently not been quashed and remained in force until the divorce decree of 30\u00a0October 2013.<\/p>\n 95.\u00a0\u00a0The Court also notes that the difficulties in enforcing the Irish judgments were partly due to the father\u2019s reluctance to return A to Ireland. The Court is mindful of the fact that contact and residence disputes are by their very nature extremely sensitive for all the parties concerned, and it is not necessarily an easy task for the domestic authorities to ensure enforcement of a court order where one or both parents\u2019 behaviour is far from constructive (see Krasicki v. Poland, no. 17254\/11, \u00a7\u00a090, 15\u00a0April 2014).<\/p>\n 96.\u00a0\u00a0The Court has held that specific, streamlined proceedings may be required for the enforcement of return orders \u2013 be it under the Hague Convention or the Brussels II bis Regulation \u2013 for a number of reasons. Without overlooking the fact that enforcement proceedings have to protect the rights of all those involved, with the interests of the child being of paramount importance, the Court notes that it is in the nature of such proceedings that a lapse of time risks compromising the position of the non\u2011resident parent irretrievably (see M.A., cited above, \u00a7 136). Moreover, as long as the return decision remains in force, the presumption stands that return is also in the interests of the child (see X v. Latvia, cited above, \u00a7\u00a7\u00a096\u201197).<\/p>\n 97.\u00a0\u00a0In conclusion, the Court considers that the Polish authorities failed to act swiftlyto enforce the Irish judgments as required under the EU law. The Court is not persuaded by the Government\u2019s argument that the length of the proceedings resulted solely from the complexity of the case. Moreover the domesticcourts issuedsometimes contradictory decisions. As a result, the applicant\u2019s right to respect for her family life did not receive effective protection.<\/p>\n 98.\u00a0\u00a0There has accordingly been a violation of Article 8 of the Convention.<\/p>\n II.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 99.\u00a0\u00a0Article 41 of the Convention provides:<\/p>\n \u201cIf the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.\u201d<\/p>\n A.\u00a0\u00a0Damage<\/strong><\/p>\n 100.\u00a0\u00a0The applicant claimed 8,120 euros (EUR) in respect of pecuniary and EUR 50,000 in respect of non-pecuniary damage. The pecuniary damage represented loss of income due to her attendance at hearings and consultations with lawyers. In addition, the applicant\u2019s lawyer claimed EUR\u00a050,000 for non-pecuniary damage in respect of the applicant\u2019s daughter A. The Court notes that no separate complaint was made in respect of a breach of A\u2019s Convention rights.<\/p>\n 101.\u00a0\u00a0The Government contested the claims as excessive. They further argued that the application of 23 April 2012 had been lodged solely in respect of Ms Anita Oller Kami\u0144ska.<\/p>\n 102.\u00a0\u00a0The Court does not discern any causal link between the violation found and the pecuniary damage alleged and it therefore rejects that claim. On the other hand, it awards the applicant EUR 15,000 in respect of non\u2011pecuniary damage. The Court dismisses the claim in respect of the applicant\u2019s daughter.<\/p>\n B.\u00a0\u00a0Costs and expenses<\/strong><\/p>\n 103.\u00a0\u00a0The applicant also claimed EUR 8,550 for the costs and expenses incurred before the Court, EUR 4,542 for costs in the proceedings before the Irish and Polish courts and for a private detective. She also claimed reimbursement of EUR 322 for travel expenses.<\/p>\n 104.\u00a0\u00a0The Government contested the claim.<\/p>\n 105.\u00a0\u00a0According to the Court\u2019s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 10,000 covering costs under all heads.<\/p>\n C.\u00a0\u00a0Default interest<\/strong><\/p>\n 106.\u00a0\u00a0The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1.\u00a0\u00a0Declaresthe application admissible;<\/p>\n 2.\u00a0\u00a0Holdsthat there has been a violation of Article 8 of the Convention;<\/p>\n 3.\u00a0\u00a0Holds,<\/p>\n (a)\u00a0\u00a0that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article\u00a044\u00a0\u00a7\u00a02 of the Convention, the following amounts,to be converted into the currency of the respondent State at the rate applicable at the date of settlement:<\/p>\n (i)\u00a0\u00a0EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/p>\n (ii)\u00a0\u00a0EUR 10,000 (ten thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;<\/p>\n (b)\u00a0\u00a0that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;<\/p>\n 4.\u00a0\u00a0Dismissesthe remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 18 January 2018, pursuant to Rule 77 \u00a7\u00a7 2 and 3 of the Rules of Court.<\/p>\n Renata Degener\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Linos-Alexandre Sicilianos
\nKristina Pardalos,
\nAle\u0161 Pejchal,
\nKrzysztof Wojtyczek,
\nArmen Harutyunyan,
\nTim Eicke,
\nJovan Ilievski, judges,
\nand Renata Degener, Deputy Section Registrar,<\/p>\n
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n