FOURTH SECTION

DECISION

Application no . 78296/11 Karolina NADOLSKA and Bronek LOPEZ NADOLSKA against Poland

The European Court of Human Rights ( Fourth Section ), sitting on 15 October 2013 as a Chamber composed of:

Ineta Ziemele, President, David Thór Björgvinsson, Päivi Hirvelä, George Nicolaou, Zdravka Kalaydjieva, Vincent A. De Gaetano, Krzysztof Wojtyczek, judges, and Françoise Elens-Passos , Section Registrar ,

Having regard to the above application lodged on 15 December 2011 ,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having regard to the comments submitted by the third party ,

Having deliberated, decides as follows:

THE FACTS

1 . Ms Karolina Nadolska (the first applicant) and her minor son, B ronek A lvaro L opez N adolska (“B”) (the second applicant), are Polish nationals, who were born in 1973 and 2004 respectively and live in Warszawa . They were represented before the Court by Ms N. O ł owska-Zalewska , a lawyer practising in Warsaw .

2 . The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, succeeded by M s J. Chrzanowska of the Ministry of Foreign Affairs.

3 . The applicants alleged a breach of Article 8 of the Convention in that the Polish courts ’ decisions ordering B ’ s return to Mexico were contrary to his best interests because the separation from his mother would cause him irreparable and serious psychological harm.

4 . On 6 January 2012 the President of the Chamber decided to indicate to the Government, under Rule 39, that it was desirable, in the interest of the parties and for the proper conduct of the proceedings before the Court, not to enforce the return of B.

5 . On the same date the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

6 . On 4 May 2012 third-party comments were received from B ’ s father, A.L.Z, who had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Con vention and Rule 44 § 2). On 23 May 2012 and 29 May 2012 the applicants and the Government, respectively, replied to those comments (Rule 44 § 5).

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. The family situation prior to the applicants ’ departure from Mexico

7 . In 1997 the first applicant married a Mexican citizen, A.L.Z., in Washington D.C., the United States of America.

8 . On 7 June 2004 in New York, she gave birth to a son, B, the second applicant.

9 . In 2004 the family settled together in Mexico City.

10 . The first applicant suffers from insulin-dependent diabetes. She uses an insulin pump and requires permanent medical supervision and access to full medical support. She has a degree in economics. She speaks fluent English and, to some extent, also Spanish. In June 2008 she obtained Mexican citizenship. In Mexico City she had a paid job selling coffee to hotels and restaurants.

11 . A.L.Z. is also an economist. He works as a political consultant. He is also an entrepreneur and a restaurant owner.

12 . The second applicant suffers from respiratory allergies and genetic bronchial asthma. It appears that in Mexico City he was prescribed medicines and wore a hygienic mask outdoors. The child was attending a nursery school where he was learning Spanish and English. The boy spoke Spanish with his father and Polish with his mother.

13 . A.L.Z. paid for complementary health insurance for his son and the first applicant.

14 . On an unspecified date, presumably in June 2007, the first applicant and A.L.Z. decided to separate.

15 . On 17 March 2009 they signed a separation contract in which they agreed upon the following: (1) the child would live with his mother; (2) he would be taken to his father ’ s every Wednesday afternoon until Thursday morning and every weekend; (3) the parents would share equally the boy ’ s school holidays; (4) every month A.L.Z. would deposit on the first applicant ’ s Mexican bank account two installments of the total of 39, 000 Mexican pesos (approximately EUR 2,250 ) toward child support (45% of the sum) and alimony (55% of the sum); (5) A.L.Z. would pay for health insurance for the child and the mother; and (6) the child could leave the city and the country only with the written consent of the respective non-accompanying parent.

16 . The applicants moved into a new flat which was rented and paid for by A.L.Z. The flat was chosen by the first applicant. It was located in the best district of Mexico City.

17 . The first applicant took good care of her son and A.L.Z. maintained regular contact with him, in accordance with the schedule in the separation agreement.

2. The family situation after the applicants ’ departure from Mexico

18 . On 2 May 2009 A.L.Z. authorised the first applicant in writing to spend a holiday in Germany (at the child ’ s maternal grandmother ’ s ) with their son from 2 May until 27 June 2009.

19 . On 2 May 2009 the applicants left Mexico for Germany. Subsequently they came to Poland.

20 . On 7 May 2009 the High Family Court in the Federal District of Mexico granted a divorce of the first applicant and A.L.Z. The court ordered joint-custody over the child, determined the residence of the child with the mother and approved the schedule of the father ’ s access according to the separation agreement between the parents. Moreover, the court ordered that every month A.L.Z. was to deposit on the first applicant ’ s Mexican bank account the total amount of 39,000 Mexic an pesos (approximately EUR 2,25 0) towards alimony (55% of the above-mentioned sum) and child maintenance (45% of the above-mentioned sum).

21 . The first applicant submitted that around that time she had found out that A.L.Z. ’ s company which ran a network of cafes in Mexico had declared bankruptcy (that was to be later confirmed by a letter of 6 September 2011 sent to her by A.L.Z. ’ s lawyer). In the opinion of the first applicant, she could not therefore expect any financial support for her child or herself if they ever returned to Mexico. She was also to learn that A.L.Z. had suspended his payments for the applicants ’ health insurance in Mexico.

22 . On 12 May 2009 the first applicant informed her former husband that she had decided to settle in Warsaw with their child. She considered that the child had better opportunities of development in Poland and she expressed fears about the outbreak of swine flu in Mexico, in particular in the light of the lack of health insurance.

23 . A.L.Z. did not agree to his son ’ s stay in Poland and demanded that he be immediately returned to Mexico. A.L.Z. instituted in Poland proceedings under the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) (see paragraphs 32-62 below) .

24 . In September 2009 the second applicant started attending a nursery school in Warsaw. He was also signed up for private classes of Spanish and English and a number of leisure activities.

25 . The first applicant submitted, however, that her son despised speaking Spanish and strongly objected to taking language classes. Consequently, the classes had been dropped after only two sessions.

26 . The boy was mentally well. He quickly adapted to the n ew environment. He was also in good physical condition, although he suffered from recurring throat infections because of his allergies and bronchial asthma ( confirmed by the report of the court ’ s guardian for minors of 19 December 2009).

27 . In January 2010 A.L.Z. re-married.

28 . In May 2010 the first applicant also re-married.

29 . It appears that after the applicants ’ departure from Mexico, A.L.Z. made occasional contributions to the complementary health insurance for his son.

30 . It also appears that he made payments of child support and, until the first applicant ’ s marriage, of alimony. The applicant submitted that the payments were irregular and scarce. In addition, the money was deposited in her Mexican bank account to which she had a limited access in Poland (unspecified problems with her credit card, State-fixed limits on the amount and frequency of withdrawals etc.).

31 . The first applicant submitted that in March 2011 her husband made a trip to Mexico in order to evaluate the applicants ’ and his own chances of settling in Mexico, should B return there.

3. T he Hague Convention proceedings

32 . On an unspecified date in July 2009 A.L.Z. lodged a motion with the Mexican Central Authority for returning his son to Me xico under the Hague Convention . On an unspecified date in September 2009 the motion was transmitted to the Polish Ministry of Justice. On 13 October 2009 it was registered with the Warsaw District Court ( SÄ…d Rejonowy ).

33 . On 19 January 2010 the Warsaw District Court ordered the first applicant to surrender her son within 30 days.

34 . The domestic court found that the applicant had wrongfully removed and retained her son away from Mexico, the country in which the child had habitually resided (Article 3 of the Hague Convention). That led to the breach of custody rights attributed by the Mexican court to the child ’ s father, which he had effectively and properly exercised prior to the applicants ’ departure from Mexico.

35 . Moreover, the domestic court took note of the fact that the period of less than one year had elapsed from the date of the wrongful removal. Consequently, according to Article 12 of the Hague Convention it was unnecessary to examine whether the child was settled in the new environment.

36 . The domestic court also observed that the applicant had not argued that the child ’ s father had not been exercising his parental rights and duties before or after the applicants ’ departure from Mexico. On the contrary, she submitted that A.L.Z. had spent a lot of time with his son in Mexico and, since May 2009, he had spoken to him on the phone and via Skype. The Warsaw District Court also considered that the applicant had not demonstrated that the child, if returned to Mexico, was at a serious risk of suffering any physical or psychological harm or of finding himself in an otherwise intolerable situation within the meaning of Article 13 (b) of the Hague Convention. To that effect it was noted that the swine flu pandemic was a world-wide phenomenon, however, young people and children were not at a particular risk of contracting it. Moreover, even though Mexico City was the most polluted city in the world, the domestic court was convinced that A.L.Z. would make efforts to protect his son from any medical dangers. It was furthermore observed that, in any event, according to the divorce judgment, the applicant was to receive alimony and child support of a substantial amount, A.L.Z. was paying and intended to continue to pay for a complementary health insurance for his son and the child could live in the city outskirts or in a less polluted district.

37 . Moreover, the Warsaw District Court found that the applicant had not demonstrated any circumstances which would allow for the application of Article 20 of the Hague Convention.

38 . It was also noted that the domestic court in examining the case had been guided above all by the well-being of the child and the case-law of the Polish Supreme Court.

39 . In defining the notion of a child ’ s well-being or best interest, the Warsaw District Court referred to the founding principles of the Hague Convention, the 1989 Convention on the Rights of the Child and the jurisprudence of the Polish Supreme Court and of this Court. The domestic court concluded that the notion in question could not be construed in a free and instrumental manner for the benefit of only one party of the proceedings. To do otherwise would make the Hague Convention a dead and ineffective international document.

40 . The Warsaw District Court concluded that in the circumstances of the case the well-being of the child did not make it necessary to dismiss the father ’ s motion for his return to Mexico.

41 . The domestic court dismissed the first applicant ’ s motion to hear the child, as it was considered that at the age of 5 he had not yet reached a degree of maturity which would allow him to construe any reliable and rational opinion concerning the choice of the parent with whom he would like to live.

42 . Likewise, the domestic court dismissed the first applicant ’ s request to seek an expert opinion of the Family Consultation Centre ( Rodzinny Ośrodek Diagnostyczno-Konsultacyjny ) on whether the well-being of B would be threatened by his return to his father in Mexico without his mother because of his young age and his previous experiences. It was held that the first applicant had failed to specify to which “previous experiences” she referred. Moreover, the domestic court agreed that returning a young child to his father ’ s country without his mother would be a difficult experience for him. Nevertheless, as the first applicant stated, B had already shown that he could easily adapt to the new environment when he had been taken to Poland. Lastly, the Warsaw District Court invoked the holding of the Supreme Court in the 1999 case no. 1 CKN 992/99 that the separation of the child from the mother could not, in principle, be an obstacle to returning the wrongfully abducted child to the country of his habitual residence. The fact that the first applicant took good care of her child after their departure from Mexico and that she had a proper emotional bond with her son was not an obstacle to the child ’ s return either. An unlawful situation caused by the child ’ s wrongful abduction could not be sanctioned by the abducting parent ’ s attempts to protect the child ’ s well-being during their stay away from the country of the child ’ s habitual residence.

43 . The domestic court also dismissed the first applicant ’ s motion to seek an opinion of the director of B ’ s nursery school since it was not contested that the child had already settled in the new environment.

44 . The Warsaw District Court observed that the obligation to surrender the child to his father did not mean that the child had to be separated from his mother. To that effect it was noted that the first applicant was a Mexican citizen, she spoke Spanish fluently, she knew how to function in the Mexican employment market since prior to her departure she had had a paid job selling coffee to hotels and restaurants and that she was bound to receive alimony from A.L.Z. The first applicant was therefore free to decide if she wanted to accompany her son in his return to Mexico.

45 . The domestic court was of the opinion that there was no danger that the second applicant would suffer serious psychological or physical harm regardless of whether he was to return to Mexico with or without his mother. It was stressed that the boy was no longer an infant requiring his mother ’ s constant care and that he could be well taken care of by his father.

46 . Lastly, the Warsaw District Court did not find it established th at the applicants did not have health insurance in Mexico. On the other hand, it was considered that A.L.Z., who had submitted receipts of alimony and child support payments, had proved that he cared for the well-being of both his child and his former wife. It was also found that B could still speak Spanish because he often spoke to his father over the phone and internet and took private classes of that language. The domestic court did not find it proved that there was a real risk that the child ’ s health would be in danger in Mexico.

47 . The first applicant appealed. She argued that B had much stronger bonds with her than with his father and that he was perfectly settled in his environment in Poland. The first applicant submitted that she feared that if separated from her and returned to Mexico, the boy would sustain serious and irreversible psychological damage. She also argued that because of her poor medical condition, na mely insulin-dependent diabetes and the fact that she had a job and a new family in Poland, she could never settle in Mexico with her son. The boy could no longer speak Spanish and was having a hard time communicating with his father. Moreover, the first applicant submitted that her son, who had been diagnosed with respiratory allergies and genetic bronchial asthma, was not at all fit to live in the environment of Mexico City. She also complained about the lack of adequate medical treatment and health insurance in Mexico.

48 . When the appellate proceedings were pending, the first applicant applied twice for the stay of the execution of the court ’ s order to return the child to Mexico.

49 . On 19 February 2010 and on 26 May 2010 the Warsaw District Court dismissed the first applicant ’ s motions.

50 . On 28 May 2010 the Warsaw District Court appointed a court guardian and authorised him to take the child away from his mother by force.

51 . On 11 June 2010 the Warsaw Regional Court ( Sąd Okręgowy ) quashed the first instance decision and ordered re-examination. The Regional Court considered that the first-instance court had failed to examine whether the circumstances of the case satisf ied the requirements of Article 13 (b) of the Hague Convention.

52 . On 8 July 2010 the Warsaw District Court ordered that an expert opinion be prepared by the Family Consultation Centre on the questions of B ’ s relationship with his parents, the parents ’ capacity to raise their son and on whether B ’ s return to his father in Mexico without his mother would cause a risk of his physical or psychological harm or would place him in an “intolerable situation”.

53 . On 20 October 2010 the Warsaw Family Consultation Centre submitted to the Warsaw District Court an expert opinion containing the following conclusion:

“ 1) ... The boy has an emotional bond with is mother, he has a sense of belonging to the family comprising his mother and her husband. The emotional bond with the father has been preserved, however, it is ambivalent. The boy desires to meet with his father but he sees his place with the mother.

2. Both parents have emotional bonds with their child.

3. Both parents have sufficient capacity to raise their child. It is true that since the child ’ s birth, it is the mother who has been more engaged into his care.

4. Taking into the consideration the fact that the mother has played the first-plan role in the child ’ s life, B ’ s return to Mexico without her, could have negative effects on his psychological well-being and his emotional stability by making him lose the sense of security. It cannot be excluded that this kind of psychological harm could also cause a somatic damage, which could constitute an intolerable situation for the child.”

54 . On 29 December 2010 the Warsaw District Court ordered the first applicant to surrender her son within 30 days.

55 . The domestic co urt concluded that the risk of psychological harm caused by the separation of the child from his mother, as described in the expert report prepared by the Warsaw Family Consultation Centre and his being taken from the environment in which he had already settled, did not fall within the meaning of “psychological harm” and “intolerable situation” under Article 13b of the Hague Convention.

56 . In the court ’ s view, that provision had to be interpreted in a strict and narrow manner and the only situations which would allow for the stay of the abducted child in the receiving country with the accompanying parent, would be the risk of a serious physical, psychological or abuse at the hands of the other parent or neglect by that parent because of his or her alcohol or drug addiction, his or her unemployment or inability to take care of the child.

57 . The applicant appealed.

58 . On 15 June 2011 the Warsaw Regional Court dismissed the appeal. The appellate court affirmed the findings of fact and of law made by the first-instance court.

59 . Before taking the above-mentioned decision the appellate court held a hearing of the second applicant, aged 7 at that time. The expert in psychology, who was present at the hearing, concluded that the boy ’ s maturity met the standards for hi s age. He considered, however, that it was impossible to predict the consequences of the child ’ s return to Mexico.

60 . On 27 July 2011 the Warsaw Regional Court confirmed that that judgment was final and binding and that the order to surrender the child issued on 29 December 2010 was to be executed.

4. Enforcement of the return order

61 . On 12 October 2011 the Warsaw District Court assigned a court guardian to take the child away from the mother or any other accompanying person and to hand him over to his father in Mexico. In the subsequent weeks the boy ’ s school and other institutions were contacted by the guardian in order to enforce the surrender order.

62 . The applicants ’ representative informed the Registry that after the domestic court ’ s final decision the second applicant had been in hiding.

63 . In view of the proceedings for the modification of the 2010 return decision (see paragraphs 68-83 below ) , the first applicant filed for an injunction on the 2010 decision to return her son to Mexico for the duration of these proceedings, arguing that the best interests of the child should prevail over the principle of stability of law.

64 . On 25 August 2011 the Warsaw District Court dismissed the first applicant ’ s motion for injunction as premature. The first applicant ’ s appeal against that decision was dismissed on 25 October 2011.

65 . On 12 January 2012 the Warsaw District Court revoked its earlier decision to assign a court guardian. This decision was issued in view of the imposition, on 6 January 2012, of the Cou rt ’ s interim measure under Rule 39.

66 . On 25 January 2012 A.L.Z. appealed against this decision.

67 . On 10 May 2012 the Warsaw Regional Court dismissed A.L.Z. ’ s interlocutory appeal.

5. Proceedings for a modification of the Warsaw District Court ’ s decision of 29 December 2010

68 . On 17 August 2011 the first applicant filed under Article 577 of the Code of Civil Procedure ( Kodeks Postępowania Cywilnego ) for a modification of the Warsaw District Court ’ s decision of 29 December 2010.

69 . The applicant argued that the impugned court ’ s ruling no longer match ed the situation in which the child was as of the current date. To that effect, she submitted that the court ’ s order to return B to Mexico had made a strong negative impact on the child ’ s physical and psychological well-being, causing him distress which could be qualified as an “intolerable situation”.

70 . She asked the court to obtain an up-to-date expert opinion about her son. She also submitted a number of reports concerning the child ’ s psychological condition and his behaviour which had been prepared by a doctor, a psychologist and a school teacher.

71 . The first applicant also informed the court that proceedings to deprive her of her custody rights had been instituted in Mexico by A.L.Z.

72 . On 8 September 2011 A.L.Z. submitted his comments on the first applicant ’ s motion of 17 August 2011. He argued, inter alia , that the factor of the child ’ s psychological distress had already been assessed by two courts in Poland and, moreover, that the anxiety resulting from moving to another country did not qualify as a “serious psychological harm” or an “intolerable situation”.

73 . A.L.Z. also submitted that he had instituted proceedings for revocation of the first applicant ’ s custody rights in Mexico only because he wanted to try every legal avenue to enforce his own custody rights. However, with his son ’ s best interest in mind, he was willing to withdraw his action against the first applicant as soon as she returned to Mexico with their son.

74 . On 20 January 2012 the Warsaw District Court or dered an expert opinion about B from the Family Consultation Centre.

75 . The psychological examination of the child and his mother could not take place because the second applicant was in hiding.

76 . It was only on 6 February 2012 that the authorities were informed of the applicants ’ new address.

77 . On 17 February or 26 March 2012 the case-file was transferred to the Family Consultation Centre. On 2 April 2012 the examination of the applicants and A.L.Z. was scheduled for 6 June 2012.

78 . On 5 June 2012 A.L.Z. arrived in Poland together with his mother. He submitted that he had tried, in vain, to contact the first applicant in order to arrange a meeting with his son prior to the examination at the Family Consultation Centre. The last time A.L.Z. saw B was in June 2011. The last time B met with his paternal grandmother was in 2009.

79 . On 6 June 2012 the examination at the Family Consultation Centre, scheduled for that day since April 2012, did not take place because the applicants did not show up. The applicant submitted that her absence had resulted from her hospitali s ation in a private clinic in the Czech Republic which was organi s ed at a very short notice.

80 . On 26 September 2012 the examination of B and his parents eventually took place and the expert report was issued on 19 October 2012.

81 . The experts made the following observations about B ’ s emotional state. The boy is not resistant to stress and his feelings of stability and security are seriously disturbed by the conflict between his parents. The boy is fearful, emotional and with tendencies to neurotic behavior . He reacts to change and failure with frustration manifested by sleep disorder, stomachache, headache, indigestion and periodical night wetting. He experiences a strong loyalty conflict. He misses his father and wishes to have contacts with him. On the other hand, he fears living in Mexico and clearly desires to remain in Poland. B has a strong emotional bond with his mother who is the most important figure to him.

82 . In view of B ’ s character as described above, it was recommended that the boy should stay in Poland and that his contacts with his father should be as frequent as possible. It was concluded that there was a high likelihood that removing B to Mexico against his will, would result in serious emotional and social disorders such as neurosis, phobias and in antisocial and destructive behavior.

83 . On 9 November 2012 the Warsaw District Court ruled of its own motion invoking Article 177 § 1 (1) of the Code of Civil Procedure that the proceedings for a modification of the 2010 return decision be stayed in view of the fact that the instant application was pending before this Court.

B. R elevant international law

The Hague Convention on the Civil Aspects of International Child Abduction

84 . The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction which has been ratified by Poland and Mexico, provides, in so far as relevant, as follows.

“The States signatory to the present Convention,

Firmly convinced that the interests of children are of paramount importance in matters relating to their custody,

Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access,

Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions:

...”

Article 3

“The removal or the retention of a child is to be considered wrongful where -

a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State. ”

Article 4

“ The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years. ”

Article 12

“ Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child. ”

Article 13

“ Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -

a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child ’ s habitual residence. ”

Article 14

“ In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognised or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable. ”

Article 15

“ The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination. ”

Article 19

“ A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue. ”

C. T he relevant domestic law and practice

85 . The amendment to the 1964 Code of Civil Procedure ( Kodeks Postępowania Cywilnego ) introduced on 19 July 2001, which entered into force on 27 September 2001, deals with the proceedings concerning the return of children under the Hague Convention.

86 . Article 598 6 provides, that if a person who is ordered to return a child does not comply with the court ’ s order, the court will instruct the guardian to remove the persons concerned forcibly ( przymusowe odebranie osoby ).

87 . According to Article 598 10 :

“Upon a request of a court guardian, the police are obliged to help him in carrying out the forcible removal of [a minor].”

Article 598 11 § 1 provides as follows:

“If forcible removal of [a minor] is hindered because that person is hidden or because other action is taken with the aim to stop the enforcement of the order, the court guardian shall inform a prosecutor.”

Pursuant to 598 12 :

Ҥ 1 The court guardian, in carrying out the removal of [a minor], shall be especially careful and shall do everything to ensure that the well-being of that person is not disturbed and that [he or she] does not sustain physical or moral harm. If necessary, the guardian shall request the assistance of the social services or another institution tasked with this function.

§ 2 If the well-being of [a minor] would be in danger as result of the removal, the guardian shall stop the enforcement of the order until the danger is over, unless the stopping of the enforcement would cause greater danger to the person.”

88 . Article 577 provides a remedy to seek a modification of a final family law decision, including a decision given under the Hague Convention. It reads as follows:

“The custody court shall modify its decision, even if final , if the best interests of the person it concerns so require.”

89 . Article 177 § 1 of the Code of Civil Procedure gives a discretionary power to a civil court to stay the proceedings pending before it if another court is expected to give a preliminary ruling, that is a ruling which would constitute a necessary element or the ground of a substantive or procedural decision in the case at stake. The provision reads as follows:

“ A court shall stay the proceedings of its own motion if:

(1) the resolution of the case depends on the outcome of another [set] of civil proceedings [which are] pending ... ”

90 . The practice shows that in cases brought under the Hague Convention, the Supreme Court was the court of the highest instance ( see the Supreme Court ’ s decisions of : 7 October 1998 no. I CKN 745/98; 31 March 1999 no. I CKN 23/99; 1 December 1999 no. I CKN 992/99; 2 June 2000 no. II CKN 959/00; 2 June 2000 no. V CKN 1747/00 ; 1 December 2000 no. V CKN 1747/00; and 19 December 2000 no. III CKN 1254/00) .

91 . Since the amendment of 1 July 2000 , which entered into force on 1 October 2000, Article 519 1 § 2 of the Code expressly provides for a cassation appeal only in those family, custody or guardianship law cases which concern adoption and division of conjugal property. Consequently, a cassation appeal with the Supreme Court is no longer available in cases decided under the Hague Convention .

C OMPLAINT

92 . The applicant s complained under Article 8 of the Convention that the domestic court ’ s decision ordering B ’ s return to his father in Mexico had been a violation of their right to respect for their family life . The impugned decision was contrary to B ’ s best interests because the separation from his mother would cause him irreparable and serious psychological harm.

THE LAW

A. A lleged violation of Article 8 of the C onvention

93 . The applicants complained that there had been a violation of their right to respect for their family life under Article 8 of the Convention, which reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There 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-being 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.”

1 . The Parties ’ arguments

94 . T he Government argued that the application was premature since the proceedings for modification of the court ’ s decision of 29 December 2010 were currently pending before the domestic court. The Government invoked a subsidiary role of the Court and submitted that the outcome of the domestic proceedings for the amendment of the binding Hague Convention decision would directly affect the application before the Court.

95 . They also argued that the first applicant, by prematurely bringing her case before this Court, was seeking to alter the course or, at least, to protract the Hague Convention proceedings in Poland and to have her situation sanctioned by an international court. In the view of the Government, the first applicant ’ s action was causing irreparable harm to the bonds of the second applicant with his father.

96 . The applicants submitted that the decision given by the Warsaw District Court of 29 December 2010 to surrender B in order to allow for his return to Mexico was final and binding. It was to be executed by a court guardian appointed on 12 October 2011. In fact, the guardian made an attempt to execute the decision in question at the time when the proceedings under Article 577 of the Code of Civil Procedure were already pending.

The execution of the court ’ s order to return B to Mexico was stayed only on the basis of this Court ’ s decision to apply an interim measure.

97 . The applicant ’ s stressed that the proceedings under Article 557 were completely independent from the original Hague Convention case which was already closed. The purpose of the above-mentioned provision was to enable a revision of a decision of a family court if the circumstances concerning the child who was affected by the impugned family court ’ s ruling, had changed. To that effect, a motion under that provision was not a cassation appeal from the final decision issued in the course of the Hague Convention proceedings.

98 . Lastly, the applicants ’ referred to the inadmissibility decision in the case of P.P. v. Poland ( P. P. v. Poland no. 8677/03 (dec.) 24 January 2006 ) which was brough t to the Court by an Italian fa ther seeking the return of his children from Poland under the Hague Convention. The application in question was declared admissible despite the fact that at the time when the Court was taking its decision on admissibility , the proceedings under Article 577 of the Code of Civil Procedure, which had been instituted by the Polish mother, had been pending.

2 . The Court ’ s assessment

(a ) The general principles

99 . Pursuant to Article 35 § 1 of the Convention, the Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law.

100 . By virtue of Article 1 of the Convention, the primary responsibility for implementing and enforcing the guaranteed rights and freedoms is laid on the national authorities. The machinery of complaint to the Court is thus subsidiary to national systems safeguarding human rights. This subsidiary character is further articulated in Articles 13 and 35 § 1 of the Convention (see KudÅ‚a v. Poland [GC], no. 30210/96 , § 152, ECHR 2000 ‑ XI).

The purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. The rationale for the exhaustion rule is to afford the national authorities, primarily the courts, the opportunity to prevent or put right the alleged violations of the Convention. It is based on the assumption, reflected in Article 13, that the domestic legal order will provide an effective remedy for violations of Convention rights. This is an important aspect of the subsidiary character of the Convention machinery: see among many authorities Selmouni v. France [GC], no. 25803/94, ECHR 1999 ‑ V, § 74; Kud ł a , cited above, § 152) .

101 . Subsidiarity is at the very basis of the Convention, stemming as it does from a joint reading of Articles 1 and 19. The Court must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case. As a general rule, where domestic proceedings have taken place, it is not the Court ’ s task to substitute its own assessment of the facts for that of the domestic courts and it is for the latter to establish the facts on the basis of the evidence before them. Though the Court is not bound by the findings of domestic courts and remains free to make its own appreciation in the light of all the material before it, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by the domestic courts ( Austin and Others v. the United Kingdom [GC], nos. 39692/09, 40713/09 and 41008/09 , § 61 , ECHR 2012 ).

102 . In keeping with the principle of subsidiarity, it has b een held on many occasions that w here the measures in issue concern parental disputes over their children, it is not for the Court to substitute itself for the competent domestic authorities in regulating custody or contact questions but rather to review the procedure followed by the domestic courts, in particular to ascertain whether those courts, in applying and interpreting the provisions of the Hague Convention, have secured the guarantees of the Convention and espe cially those of Article 8 (see Neulinger a nd Shuruk v. Switzerland [GC], no. 41615/07, § 133 , ECHR 2010 and M.R. and L.R. v. Estonia no. 13420/12 (dec.) 15 May 2012 § 37).

(b) Application of these principles in the present case

103 . The Court observes that by virtue of the final and binding decision delivered by the Warsaw District Court on 29 December 2010 and upheld by the Warsaw Regional Court on 15 June 2011, the first applicant was ordered to surrender her son in order to facilitate his return to Mexico (see paragraphs 58 an 60 above).

104 . The Polish Code of Civil Procedure, in its Article 577, expressly provides that a valid decision of a custody court can be amended if the best interests of a child warrant such a change. The first applicant has in fact embarked on this procedure, seeking a rectification of the alleged shortcomings of the 2010 decision which gave rise to her application with the Court.

105 . The examples of this procedure used in the context of the Hague Convention can be found in the Court ’ s past cases of P.P. v. Poland ( see P.P. v. Poland , no. 8677/03, 8 January 2008 ) and of Serghides v. Poland (see Serghides v. Poland , no. 31515/04 , 2 November 2010 ). Moreover, the Court has already declared inadmissible an application against Poland, arising from a child custody dispute on the ground that the applicant did not avail himself of the remedy provided by Article 577 of the Code of Civil Procedure (s ee Radowski v. Poland no. 1073/05 (dec.) 13 February 2007) . The applicant in that case was seeking the enforcement of a final access decision which was flawed in that it did not specify with a sufficient precision the mother ’ s obligations in respect of access of the applicant. In the particular circumstances of the case the impug ned decision was in fact unenforc eable unless amended (ibid).

106 . Addressing the applicant ’ s argument about the Court ’ s earlier case of P.P. v. Poland (cited above), it must be noted that the facts of that application and the Convention issues which it raised, are significantly different from these in the case at hand. The applicant in P.P . was a father, seeking the enforcement of a Polish court ’ s decision to return his children to Italy where they had been wrongfully abducted from within the meaning of the Hague Convention. It was the children ’ s mother who applied for a modification of the impugned return decision under Article 577 of the Code of Civil Procedure. When the Court ruled on the admissibility of that case, these proceedings were indeed pending. That, however, had no bearing for Article 35 of the Convention since P.P. ’ s case was about the positive obligations of the State in the context of the implementation of a perfectly enforceable court decision to return the children and not about the merits of that decision ( P.P. v. Poland (dec.) cited above).

This being so, the Court attached importance to the facts that the applicant initiated enforcement proceedings which authorised the forcible removal of the children , was a party to the criminal proceedings against the mother concerning charges of abducting and hiding the children and appealed against the decisions to discontinue the enforcement proceedings. It was concluded that t he applicant had done everything that could reasonably be expected of him to exhaust the national channels of redress ( P.P. v. Poland (dec.) cited above ).

107 . Turning to the present case, it must be noted that the proceedings for a modification of the final 2010 return decision were recently stayed by the Warsaw District Court in view of the present international proceedings as it was considered that the ruling of this Court would constitute a ground for the domestic court ’ s decision under the Hague Convention.

109 . Under the principle of subsidiarity , enshrined in the Convention , Member States should assume their responsibility in dealing fully and as swiftly as possible with claims of breaches of Convention rights, especially Article 8 claims which arise from proceedings under the Hague Convention on the Civil Aspects of International Child Abduction . Avoiding this responsibility would put the Court in the situation of a first-instance court for the protection of the family life of the parents and their allegedly wrongfully abducted children . Hence, Member States should provide for an effective remedy and if such remedy already exists, they should not hinder its use by the applicant (see mutatis mutandis Akdivar and Others v. Turkey , 16 September 1996, § 65, Reports of Judgments and Decisions 1996 ‑ IV ). S topping an applicant from effectively pursuing an available domestic remedy, as happened in this case, subvert s the principle of subsidiarity and invert s the relationship between national courts and this Court.

It follows that this complaint must be rej ected under Article 35 §§ 1 and 4 of the Convention for non- exhaustion of domestic remedies.

B. R ule 39 of the Rules of C ourt

111 . In vie w of its findings set out above and the fact that the domestic court ’ s decision to assign a court guardian in order to enforce the child ’ s return order of 29 December 2010 has been revoked (see paragraph 65 above), the Court considers that it is appropriate to lift the interim measure indicated to the Government of Poland under Rule 39 of the Rules of Court (see paragraph 4 above).

For these reasons, the Court unanimously

Declares the application inadmissible.

Françoise Elens-Passos Ineta Ziemele Registrar President