Communicated on 23 September 2020 Published on 12 October 2020

FIRST SECTION

Application no. 46342/19 Stanislaw BIERSKI against Poland lodged on 23 August 2019

STATEMENT OF FACTS

The applicant, Mr Stanisław Bierski , is a Polish national who was born in 1949 and lives in Wrocław .

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

In 1999 he married A.R. and in the same year their son, D.B., was born. The son suffers from Down ’ s syndrome.

In 2001 the applicant divorced. The son lived with his mother. According to the applicant ’ s submissions, A.R. impeded the applicant ’ s contact with his son, but apparently the necessary arrangements were made, a guardian for the child was appointed and the applicant had contact with his son, although not as frequently as he wished.

On 25 October 2017 the applicant requested the Wroc ł aw District Court to regulate contact with his son by way of an interim measure. The applicant submitted that his son would be 18 years old on 13 November 2017 and that, therefore, the guardian appointed for his son would no longer be exercising his functions. He submitted also that the mother had refused to allow him to visit his son on dates “granted by the judgment”.

On 27 December 2017 the Wroc Å‚ aw District Court granted the applicant ’ s request and secured the applicant ’ s contact with his son by interim measure until termination of the proceedings. It held that the applicant was allowed to see his son on every first and third Saturday of each month between 10 a.m. and 5 p.m. in the presence of the court ‑ appointed guardian. The applicant was to collect his son from his place of residence and accompany him home afterwards.

The applicant submitted that in spite of these arrangements, until September 2018 he saw his son only 5 times whereas he should have seen him 18 times. This was due to A.R. ’ s actions aiming at impeding the contact.

On 26 February 2018, at the request of A.R., the Wroc ł aw Regional Court incapacitated the applicant ’ s son.

On 24 May 2018 the Wroc ł aw District Court appointed A.R. as D.B. ’ s guardian.

On 4 October 2018 the Wroc ł aw District Court dismissed the applicant ’ s request for regulation of contact with his son and quashed its decision of 27 December 2017 regulating contact by means of interim measures. The court held that the applicant was not entitled to request contact with his adult incapacitated son. It relied on the Supreme Court ’ s resolution of 17 May 2018 according to which “parents of an adult child who is totally incapacitated because of m ental disability and for whom a guardian has been appointed are not entitled to request a court to regulate contacts with the child”. In all issues concerning personal or financial matters of the incapacitated person only the guardian was entitled to request the family court to issue the relevant arrangements. The request could not be lodged by any other person. Likewise, the relevant arrangements could not be made by the court ex officio . In this respect the court relied on Article 593 of the Code of Civil Proceedings.

On 13 November 2018 the applicant appealed.

On 18 January 2019 the Wroc Å‚ aw Regional Court dismissed the applicant ’ s appeal. It agreed with the facts established by the first ‑ instance court and accepted its legal reasoning holding that the applicant had not been entitled to claim regulation of contact with his adult incapacitated son.

Article 593 of the Code of Civil Proceedings , in so far as relevant, reads as follows:

“In all important issues concerning personal or financial matters of an incapacitated person, permission shall be granted by the custody court at the request of the guardian.”

Contact with children is regulated in Articles 113-113(6) of the Family and Custody Code ( Kodeks Rodzinny i Opiekuńczy ) . However, these provisions only apply to contact between adults and minor children. Their application is thus ruled out once a child is 18 years old, even if that child is incapacitated.

On 17 May 2018 the Supreme Court adopted a resolution (III CZP 11/18) which reads as follows:

“Parents of an adult child who is totally incapacitated because of mental disability and for whom a guardian has been appointed are not entitled to request a court to regulate contact with the child.”

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention of a limitation to his access to court. He also relies on Article 8 of the Convention, submitting that the courts ’ refusals to regulate contact with his adult incapacitated son amounted to a breach of his right to family life.

QUESTIONS TO THE PARTIES

1. Did the applicant have access to a court for the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention?

2. Has there been an interference with the applicant ’ s right to respect for his family life, within the meaning of Article 8 § 1 of the Convention?

If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2 of the Convention?

Reference is made to the national courts ’ findings that the applicant had no legitimate right to claim before the court a determination of contact with his adult incapacitated son.