Communicated on 7 September 2020 Published on 2 8 September 2020

FIRST SECTION

Application no. 13357/19 Urban KARWOWSKI against Poland lodged on 1 March 2019

STATEMENT OF FACTS

1 . The applicant, Mr Urban Karwowski , is a Polish national, who was born in 1977 and lives in Edinburgh, the United Kingdom.

The circumstances of the case

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

3 . The applicant lived with his Polish wife in Edinburgh, Scotland. In 2010 the couple ’ s child was born there. The child holds Polish and British citizenships.

4 . In 2012 the applicant divorced the child ’ s mother. He obtained shared custody and spent 3 days a week with his son.

5 . In 2015 the boy ’ s mother informed the applicant about her plan to move to London with the child. The applicant objected to it and lodged a relevant appeal with the Scottish court. In 2016 that court ordered that the boy remain in Scotland.

6 . Before those proceedings were concluded, the mother had moved to London with the couple ’ s son.

7 . On 21 August 2016 the Edinburgh Court issued an order, by which the mother was obliged to hand over her son to the applicant within 24 hours. It also set the boy ’ s domicile with his father.

8 . The mother did not comply with the order and – together with her son – left for Poland.

9 . On 6 September 2016 the applicant filed with the Scottish Ministry of Justice a motion for his son ’ s return under the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980.

10 . On 12 December 2016 the Olsztyn District Court dismissed the applicant ’ s request, holding that no abduction had taken place.

11 . On 15 March 2017 the Olsztyn Regional Court quashed that judgment and remitted the case.

12 . During retrial, the applicant regularly met with his son.

13 . On 27 May 2017 an expert report was drawn up about the applicant ’ s psychological evaluation. The experts concluded that the applicant did not suffer from any psychological or psychotic disorders which could negatively impact his parental capacities.

14 . On 4 September 2017 the court obtained a report drawn up by experts in psychology and education. The experts were asked to evaluate whether or not returning the child to Scotland would expose the child to serious physical or psychological harm or would amount to an intolerable situation within the meaning of Article 13 (b) of the Hague Convention. Based on the evaluation of both parents and of their child, the experts made the following conclusions. ( i ) The child ’ s return would not put the boy in danger of serious physical or psychological harm because the child would be returning to the place which is already known to him. The return would also enable him to have regular contacts with his father, which would be very positive for the child. (ii) Another change of the environment and making the child again adapt to a completely unknown environment would be unfavourable ( niekorzystny ) for the boy.

15 . It appears that the presiding judge suggested that the applicant and his ex-wife settle the case and, to that end, suspended the proceedings for four months. No settlement was ultimately reached.

16 . On 24 April 2018 the Olsztyn District Court dismissed the applicant ’ s Hague Convention request.

17 . On 19 September 2018 the Olsztyn Regional Court upheld that judgment.

18 . The courts of two jurisdictions thus found that the applicant ’ s ex ‑ wife had in fact abducted the applicant ’ s son but due to the protraction of the return proceedings the boy ’ s return to Scotland would be contrary to his best interests. The courts found that the boy ’ s comfort was a priority over the interests of his father. They also relied on the boy ’ s preference - which he had communicated to his court-appointed guardian - to live with his mother and have regular contacts with his father. The courts considered that the eight-year old child was mature enough to formulate a valid preference. Overall, the courts concluded that returning the child to Scotland would put him in an intolerable situation.

COMPLAINTS

The applicant complains that, by protracting the Hague Convention proceedings and by refusing to order his child ’ s return, the Polish courts breached his right to respect for his family life guaranteed by Article 8 of the Convention. In particular, the applicant argued that the Polish courts should not have looked to satisfy the child ’ s immediate or short-term best interest related to the boy ’ s living conditions and home stability. Instead, the court should have ensured the respect of the long-term and overarching interest of respect for the child ’ s family life.

QUESTION TO THE PARTIES

In view of the duration and the resulting outcome of the Hague Convention proceedings for the return of the applicant ’ s child, has there been a violation of the applicant ’ s right to respect for his family life, contrary to Article 8 of the Convention?