FIRST SECTION

DECISION

Application no. 5313/12 Barbara El ż bieta LESZNIEWSKA against Poland

The European Court of Human Rights (First Section), sitting on 22 October 2019 as a Committee composed of:

Pere Pastor Vilanova, President, Krzysztof Wojtyczek, Pauliine Koskelo, judges, and Renata Degener, Deputy Section Registrar ,

Having regard to the above application lodged on 9 January 2012,

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

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Ms Barbara El ż bieta Leszniewska, is a Polish national, who was born in 1978 and lives in Borkowo. She was represented before the Court by Ms K.A. Morawiec, a lawyer practising in Warsaw .

2 . The Polish Government (“the Government”) were represented by their Agent, Mrs J. Chrzanowska, and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs.

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

4 . In 2005 the applicant and K.J. got married. On 25 February 2006 their only child J. was born. The applicant and K.J. have not lived together since July 2007.

5 . On 12 May 2010 the Gda ń sk Regional Court dissolved the applicant ’ s marriage. It awarded parental rights to the applicant, limited the father ’ s exercise of his rights, and ordered that the child ’ s permanent place of residence should be with his mother. The court appointed a family welfare officer for the applicant, and obliged her to attend therapy so that she could accept the father ’ s involvement in the child ’ s life and relax her control over the child. The father was allowed to have contact with the child twice a week on Mondays and Wednesdays from 10 a.m. to 12 p.m. in the presence of a welfare officer, away from the applicant ’ s place of residence and without her being present.

6 . On 30 September 2010 the Gda Å„ sk Court of Appeal upheld that judgment.

7 . On 2 August 2010 K.J. lodged an application with the Gda Å„ sk ‑ Po Å‚ udnie District Court for J. to be temporarily placed with a foster family or with him, as he believed that the child ’ s welfare was threatened. He submitted that he had not had any contact with the child for two years, as the applicant had kept him away from him. He also submitted that the applicant had not attended the therapy ordered by the Gda Å„ sk Regional Court (see paragraph 5 above). Subsequently, on 7 December 2010 K.J. amended his application. He requested that the applicant be stripped of her parental responsibility and that J. reside with him.

8 . In December 2010 the court-appointed welfare officer recommended that, given that there was increasing tension during contact meetings, the child ’ s place of residence should be with his father.

9 . On 22 March 2011 the Gda ń sk-Po ł udnie District Court issued an interim order ( zabezpieczenie roszczenia ). It amended the divorce decree and ordered that J. should reside with his father until the end of the proceedings concerning parental responsibility. The court also obliged the applicant to surrender the child to K.J. ( wydanie dziecka). The court referred to expert reports obtained in the divorce proceedings. According to an opinion of 22 September 2008 issued by a family consultation centre ( Rodzinny Ośrodek Diagnostyczno Konsultacyjny , “RODK”) in Elbl ą g, K.J. and his son had a good relationship. In an opinion of 7 August 2009, prepared by the Chojnice RODK, it had been found that the father could take care of the child without the applicant ’ s assistance. The court noted that the father had had his last real contact with J. in the first half of 2008. In 2008 he had met his son on several occasions, every time in the presence of the welfare officer, but the child had been afraid of him. The court also found that the child had two names: one used by the applicant (P.) and another used by his father (J.). The court stated that the child had been deprived of his father ’ s presence in his life. It concluded that the applicant had in fact abused her parental responsibility. Furthermore, the court held that not having his father present in his life, would be more harmful to J. than him adapting to his father having parental responsibility for him. The court highlighted that the breakdown of the relationship between J. and his father had resulted from the applicant ’ s behaviour. Both, the applicant and K.J. were represented by lawyers in the proceedings before the District Court.

10 . On 6 April 2011 K.J. lodged an application for enforcement of that interim order. In reply, on 9 May 2011 the Gda Å„ sk-Po Å‚ udnie District Court obliged the applicant to surrender J. to K.J. That decision was upheld by the Gda Å„ sk Regional Court on 23 September 2011.

11 . On 26 May 2011 the Gda Å„ sk-Po Å‚ udnie District Court refused to stay the enforcement of the interim order of 22 March 2011.

12 . On 27 June 2011 the Gda Å„ sk-Po Å‚ udnie District Court, sitting in camera, ordered the welfare officer to forcibly take the child away from the applicant ( przymusowe odebranie dziecka ).

13 . At 7 a.m. on 5 July 2011 police officers, welfare officers and a psychologist, together with K.J., went to the applicant ’ s house in order to enforce the decision. The applicant had no contact with her son from this date until 27 November 2011.

14 . On 19 July 2011 the Gda ń sk Regional Court dismissed the applicant ’ s interlocutory appeal against the order of 22 March 2011. The court relied on the Chojnice RODK ’ s opinion of 7 August 2009, in which the relevant experts had stated that the relationship between the applicant and J. was abnormal and co-dependent, and that the child needed to have contact with his father. Relying on J. ’ s best interests, the court was of the view that the applicant ’ s behaviour had destroyed the relationship between the father and the child. The court also noted that on 11 July 2011 a welfare officer had carried out a local assessment ( wywiad środowiskowy ) at K.J. ’ s home, with a view to establishing what the child ’ s situation was. The report confirmed that the child ’ s living conditions with his father were good. The court found that, owing to the child ’ s moving to his father ’ s home, his situation had stabilised, as he was no longer afraid of him. It concluded that the measure placing J. with his father was temporary and aimed at stabilising his situation, at least partially, and could not be treated as an argument in favour of granting the father permanent custody.

15 . On 10 August 2011, at a hearing held in camera, the Gda Å„ sk ‑ Po Å‚ udnie District Court dismissed the applicant ’ s application for amendment of the interim order of 22 March 2011 and for contact with her child.

16 . In September 2011 two local assessment reports concerning the child ’ s situation were prepared by welfare officers. It was noted that relations between the child and the father had improved.

17 . On 25 October 2011 the Gda Å„ sk Regional Court quashed the decision of 10 August 2011 (see paragraph 15 above) for procedural reasons and remitted the case to the lower court.

18 . On 9 December 2011 the applicant lodged an application to amend the interim order of 22 March 2011. The application was dismissed on 16 March 2012, on the grounds that no new circumstances had arisen since the last decision had been issued.

19 . The court held a further hearing on 12 April 2012.

20 . On 4 January 2013 an expert opinion was prepared by the Chojnice RODK, on the basis of interviews with the parents and the child. The experts stated that J. was emotionally attached to both parents, however simultaneous contact with both of them was stressful for him. The experts noted that the relationship between J. and his father was in the process of being formed, and that process should not be disturbed. At the same time, the relationship between the child and the applicant and her family had not been broken, and they had frequent and regular contact. The experts stressed that the relationship between J. and t he applicant had become less co ‑ dependent, but she still did not respect his autonomy. The experts concluded that the father was in a better position to guarantee appropriate care for J.

21 . On 10 April 2013 the Gda ń sk-Po ł udnie District Court instituted proceedings of its own motion, in order to amend the divorce judgment, establish that the child ’ s place of residence should be with his father, and limit the mother ’ s parental responsibility.

22 . The court held a further hearing on 26 June 2013.

23 . Subsequently, as J. grew older, he indicated on several occasions his preference for living with the applicant. In particular, on 21 September 2013, during a contact meeting with the applicant, J. told the welfare officer that he would like to live with his mother. In March 2014 the boy told his school educator ( pedagog ) that he had not wanted to live with K.J.

24 . On 11 September 2014, the applicant submitted a complaint under the Law of 17 June 2004 on the right to have a case examined in judicial proceedings without undue delay (“the 2004 Act”), about the excessive length of the proceedings concerning custody and parental responsibility. Her complaint was rejected on 23 October 2014 for formal reasons. Namely, that she had failed to specify the circumstances justifying her request.

25 . On 30 October 2014 the Gda Å„ sk Regional Court quashed the inte rim order of 22 March 2011 on procedural grounds and remitted the case to the Gda Å„ sk ‑ Po Å‚ udnie District Court.

26 . On 23 January 2015 J. stated before the Gda ń sk-Po ł udnie District Court that he wished to live with the applicant. He also said that he did not believe that K.J. was his father. An expert psychologist who participated in the hearing prepared an opinion in which she concluded that J. ’ s statements were influenced by his emotions and his wish to be with his mother.

27 . On 7 March 2016 the Gda ń sk-Po ł udnie District Court gave a decision. It granted parental responsibility to K.J. and ordered that the child should live with him. The court held that K.J. had continuously provided better guarantees for the child ’ s development. He had also ensured that there was regular and frequent contact between J. and the applicant, whereas the applicant had disturbed the father-son relationship. For this reason, the court decided not to grant the boy ’ s wish to live with his mother, as living with his father was in his best interests. The court concluded that that decision had been taken in J. ’ s best interests and in view of his future development.

28 . The decision and the written reasoning for that decision were served on the applicant ’ s lawyer in August 2016. The applicant lodged an appeal.

29 . On 2 March 2017 the Gda Å„ sk Regional Court heard J. in the presence of an expert psychologist. Again, J. expressed his strong preference for living with his mother and her family.

30 . On 17 April 2017 the Gda Å„ sk Regional Court held a hearing. During that hearing K.J. stated that he agreed that the boy should live with the applicant. He asked the court whether J. could stay with him until the end of the school year.

31 . On 26 April 2017 the Gda ń sk Regional Court gave a decision. The court granted parental responsibility to both parents, ordered that the child ’ s place of residence should be with his mother, and appointed a welfare officer to supervise the applicant.

32 . On 12 August 2011 the applicant applied for contact rights in respect of her son.

33 . On 18 August 2011 the Gda Å„ sk-Po Å‚ udnie District Court issued an interim contact order whereby the applicant was authorised to have contact with her child without K.J. being present and outside of his home. The court specified in detail the duration and frequency of contact meetings. The court also noted that the applicant had last seen her son on 5 July 2011.

34 . At K.J. ’ s request, the court stayed the enforcement of that interim order until his appeal was examined.

35 . On 25 October 2011, following K.J. ’ s appeal, the Gda ń sk Regional Court amended the contact order of 18 August 2011 by limiting the duration and frequency of the contact meetings between J. and his mother. The court also noted that the meetings should take place at the child ’ s home.

36 . On 23 November 2011 the court appointed a welfare officer to supervise the applicant ’ s contact meetings with J. On the same day the applicant gave birth to her second child.

37 . The first contact meeting between the applicant and her son following the son ’ s placement with his father took place on 27 November 2011.

38 . On 25 May 2012 the Gda ń sk-Po ł udnie District Court amended the contact order of 25 October 2011 by allowing meetings to take place away from the father ’ s house, and by allowing the applicant ’ s baby daughter to participate in the meetings.

39 . Subsequently, the contact arrangements were generally respected. The applicant had contact with her son at least twice a week, an d from mid ‑ 2014 onwards the contact meetings took place without the welfare officer being present, in accordance with agreements made between the parents.

40 . In addition, members of the applicant ’ s family were also granted contact rights. Firstly, on 14 February 2012 the maternal grandparents and the applicant ’ s sisters were allowed to have supervised visits with J. Subsequently, on 8 May 2013 the Gdynia District Court gave a decision allowing the maternal grandparents to see J.

41 . Under Article 106 of the Family and Custody Code ( Kodeks rodzinny i opiekunczy ), a final court decision about parental responsibility and contact arrangements can be modified at any time if the best interests of the child so require. This can be done following an application by either parent or by the court acting of its own motion.

42 . Under Article 107 of the Family and Custody Code, if parents who are not married retain their parental rights in respect of their children, a court may award custody to one of them, limiting the exercise of the other parent ’ s parental rights to certain obligations and rights specified in the court ’ s decision.

43 . Under Article 730 of the Civil Procedure Code ( Kodeks Postępowania Cywilnego , “the CPC”) a party can ask a court to issue an interim order with a view to secure a claim concerning contact arrangements, for instance.

COMPLAINT

44 . The applicant complained under Article 8 of the Convention that her right to respect for family life had been breached because of the authorities ’ failure to adequately respond to her family situation, particularly in the light of the overall length of the custody proceedings.

THE LAW

45 . The applicant complained under Article 8 of the Convention that her right to respect for family life had been breached because of the authorities ’ failure to adequately respond to her family situation. This provision of the Convention, in so far as relevant, reads as follows:

“1. Everyone has the right to respect for his ... family life...

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 ... for the protection of health or morals, or for the protection of the rights and freedoms of others.”

46 . The Government argued firstly that the applicant had not exhausted the available domestic remedies, as her complaint under the 2004 Act about the length of the proceedings had been rejected for failure to comply with the procedural requirements.

47 . They further noted the domestic courts had based all their decisions on the child ’ s best interests and had acted with exceptional diligence. In particular, the courts had obtained expert evidence and local assessment reports prepared by welfare officers, had heard evidence from a number of witnesses, and had consulted the case files of other cases concerning the applicant and K.J. in order to determine their parenting skills and the relationship between them and the child.

48 . In their view there had been no inactivity in the domestic proceedings. The case had been difficult, in view of the serious conflict between the parents and the fact that every decision concerning the child (holidays, contact meetings with other family members, and so on) had had to be taken by the family courts. During the relevant period at least eighteen sets of other proceedings concerning J. had been ongoing before the local court. The applicant had been represented by a lawyer who had lodged numerous appeals, comments and applications, which had contributed to the length of the proceedings.

49 . Lastly, the Government maintained that unlike in the case of Süß v. Germany (no. 40324/98, 10 November 2005), the length of the proceedings in the present case had not caused J. to be alienated from the applicant, since she had enjoyed contact rights throughout the proceedings. The only disturbance in contact had occurred between 5 July and 27 November 2011, following J. ’ s placement with his father. However, this brief separation had not resulted in the breakdown of the applicant ’ s ties with her son.

50 . The applicant submitted that the domestic courts had committed numerous procedural errors in the proceedings concerning custody and parental rights which had resulted in the removal of her son from her. In particular, she referred to the fact that the sole reason for taking J. away from her and placing him with his father had been the fact that the courts had considered her to be co-dependent. She further stressed that the Gda Å„ sk ‑ Po Å‚ udnie District Court had enforced the interim order of 22 March 2011 by forcibly taking the child away from her, even before her appeal had been examined by the Gda Å„ sk Regional Court. Moreover, the interim order of 22 March 2011 had subsequently been quashed for procedural reasons on 31 October 2014.

51 . The applicant submitted that as J. had matured he had repeatedly expressed his wish to live with her and her family before the courts and to the welfare officers. However, the courts had continuously ignored his statements, referring to his best interests and the need to rebuild the relationship between him and his father.

52 . Lastly, the applicant maintained that the total length of the custody and residence order proceedings had been excessive. The proceedings had lasted more than six years and had been unduly slow.

53 . The Court takes note of the Government ’ s objection relating to non ‑ exhaustion of domestic remedies, a point to which it shall revert when considering specifically the delay in the proceedings (see paragraphs 65 ‑ 69 below).

54 . T he Court observes that the applicant was clearly affected by the judicial decision which ordered her son ’ s removal and placement with his father. This measure constituted an interference with the applicant ’ s right to respect for her family life. Any such interferen ce will be in breach of Article 8 unless it is “in accordance with the law”, pursues an aim or aims that are legitimate under Article 8 § 2, and can be regarded as “necessary in a democratic society.

55 . The Court further notes the measure to reunite J. with his father was taken in accordance with the law, namely the relevant provisions of the Family and Custody Code (see paragraph 42 above), and there is no reason to doubt that it was intended to protect J. ’ s “rights and freedoms”.

56 . In determining whether the impugned measure was “necessary in a democratic society”, the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify it were relevant and sufficient for the purpose of paragraph 2 of Article 8 of the Convention (see, for example, K. and T. v. Finland [GC], no. 25702/94, § 154, ECHR 2001 ‑ VII4).

57 . The Court reiterates firstly that there is a broad consensus, including in international law, in support of the idea that in all decisions concerning children, their best interests are of primary importance (see, among other authorities, Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 208, ECHR 2017).

58 . In this regard, the Court notes that in their decisions, the domestic courts held that J. ’ s best interests were the primary consideration in the case (see paragraphs 9, 14 and 30 above) . In its interim order of March 2011, relying on expert opinions, the Gda ń sk-Po ł udnie District Court held that the applicant had in fact abused her parental responsibility by depriving J. of his father ’ s presence in his life. It went on to examine the available options and concluded that not having his father in his life would be more harmful to J. than him adapting to living with his father (see paragraph 9 above).

59 . Against this background, the Court considers that the domestic authorities were faced with the difficult and sensitive task of striking a fair balance between the competing interests in a complex case. While the Court acknowledges the emotional hardship that the interim order must have caused the applicant, her rights cannot override the best interests of the child.

60 . It is also significant that following an initial interruption of few months, the applicant was granted contact rights on 25 October 2011, and subsequently she was able to maintain personal relations with her son (see paragraphs 35, 37, 39 above). In this connection, having regard in particular to the outcome of the proceedings, the Court is of the view that this period could not have had irreparable consequences for the applicant ’ s relationship with J. (see, Z. v. Slovenia , no. 43155/05, § 155, 30 November 2010).

61 . Most importantly, the Court observes that the placement decision was reviewed as soon as the situation developed and J. ’ s wishes became fixed, and in its final decision the Gda ń sk Regional Court ordered that the child ’ s place of residence should be with his mother (see paragraph 31 above).

62 . In the present case, there is nothing to indicate that the findings of the domestic courts, which had the benefit of direct contact with all the persons concerned, were unreasonable and thus fell outside their margin of appreciation. Given that the national authorities are in principle better placed than an international judge to evaluate the evidence before them, it is not the Court ’ s task to take their place in establishing and assessing the facts and deciding what was in the best interests of the child in the present case.

63 . It remains to be examined whether the decision-making process, seen as a whole, provided the applicant with the requisite protection of her interests.

64 . In this regard, the Court observes that the applicant was assisted by a lawyer in the proceedings before the Gda ń sk-Po ł udnie District Court and the Gda ń sk Regional Court (see paragraphs 9 and 28 above). She was therefore involved in the decision-making process, seen as a whole, to a degree sufficient to provide her with the requisite protection of her interests (see T.P. and K.M. v. the United Kingdom , § 72, cited above).

65 . Lastly, in so far as the applicant explicitly complained about the overall length of the proceedings, the Government argued that she had failed to lodge a complaint under 2004 Act in accordance with the procedural requirements attached to that remedy.

66 . The Court observes that during the proceedings the applicant on one occasion submitted a complaint under 2004 Act. However, this complaint was not examined on the merits and was rejected on 23 October 2014 for failure to comply with the procedural requirem ents (see paragraph 24 above).

68 . Having regard to the above, the Court considers that, the applicant failed to use the remedies available under domestic law in a manner which would afford the national authorities the opportunity to examine her allegation of a violation of Article 8 on account of the excessive length of the custody proceedings and, if that allega tion were to be considered well ‑ founded, to prevent or put right that violation.

69 . In the light of the foregoing, the Court concludes that the application is partly manifestly ill ‑ founded and partly inadmissible for non ‑ exhaustion of domestic remedies and must be rejected in accordance with Article 35 §§ 1, 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 14 November 2019 .

Renata Degener Pere Pastor Vilanova Deputy Registrar President