Published on 4 October 2021

FIRST SECTION

Application no. 24877/20 Mirko AVESANI against Poland lodged on 30 April 2020 communicated on 13 September 2021

SUBJECT MATTER OF THE CASE

The application concerns the length and the outcome of proceedings under the Hague Convention instituted by the applicant to seek the return of his minor child, O.A., who had been wrongfully abducted from Italy to Poland by the child’s mother.

On 23 November 2016 the applicant’s partner, who is a Polish national, left Italy with the couple’s daughter (born in 2012). At the material time both parents had been exercising joint custody over the child and had presumably been living together. The applicant had consented to his partner’s departure with the child for a limited duration that would prove necessary given that the child’s maternal grandfather was recovering from a serious illness and required care. Around February 2017 the applicant learnt that his partner was planning to stay in Poland indefinitely with the couple’s daughter.

On 16 October 2017 the applicant, who is Italian, filed a request with the Polish Central Authority seeking the return of his daughter to Italy. On 8 December 2017 this application was registered with the Chełmno District Court.

The CheÅ‚mno District Court held two hearings – on 3 April and 29 August 2018 -, and on 11 June 2018 obtained a report of a team of court ‑ appointed experts in child psychology.

On 31 December 2018 Chełmno District Court issued a decision, granting the application.

Following the appeal by the child’s mother, on 30 October 2019 the Torun Regional Court changed the first-instance decision and dismissed the applicant’s Hague Convention request. The domestic court, having obtained a new report from an expert in child psychology (dated 10 September 2019), held that it was in the child’s best interest to stay in Poland with her mother. The criminal proceedings that were on-going in Italy against her for the wrongful abduction of the child constituted, in the court’s view, an objective obstacle hindering the return of the child’s mother to Italy. Moreover, the court observed that, given that the child was already integrated into society, had a group of friends and strong bonds with her closest family in Poland, and no longer spoke Italian, changing the child’s environment and ordering her return to Italy would cause her trauma and development disorders. In the light of the above considerations, the appellate court concluded that the child’s return would be in breach of Article 13 (b) of the Hague Convention.

QUESTIONS TO THE PARTIES

1. Has there been a violation of the applicant’s right to respect for his family life, contrary to Article 8 of the Convention?

2. In particular,

(a) is the interpretation of the notions of “psychological harm” and an “intolerable situation” within the meaning of Article 13 (b) of the Hague Convention as it was applied by the domestic court in the case at hand, compatible with the procedural requirements of Article 8 of the Convention?

(b) was the dismissal of the applicant’s Hague Convention request compatible with the procedural requirements of Article 8 of the Convention, in so far as the impugned Hague Convention proceedings lasted two years?