Communicated on 7 September 2020 Published on 28 September 2020

FIRST SECTION

Application no. 57535/19 Irena FLORIAN against Poland lodged on 31 October 2019

STATEMENT OF FACTS

The applicant, Ms Irena Florian, is a German and Polish national, who was born in 1981 and lives in Munich. She is represented before the Court by Mr C.R. Kornijewski , residing in Munich.

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

The applicant has two sons, A. (born i n January 2015) and B. (born in December 2016), whose father is unknown. Her first son was – on an unspecified date – placed in her parents ’ custody. Her second son remained in the applicant ’ s custody.

On 16 September 2018 the applicant called the police to her parents ’ house, located in Krapkowice . She alleged that she had been beaten by her father. Her parents claimed that she had often initiated house disturbances and indicated that the family had had a so-called “blue card” ( n iebieska karta ) created, which implied instances of domestic violence in the household. In the charter the applicant was indicated as the perpetrator of domestic violence.

The responding police officers noticed that B. was hardly responsive and seemed to be scared. When questioned about B. ’ s health, the applicant produced an incoherent response and refused to provide his medical records. The officers called paramedics to the scene, who determined that there was nothing wrong with B. ’ s health. However, having examined her child ’ s medical file ( książeczka zdrowia dziecka ), they discovered that the applicant had failed to have B. vaccinated with the mandatory vaccinations. At that point she had allegedly stated that she wished for her son to be adopted, since she did not wish for him to witness her being abused by her father.

In September and December 2018 the a pplicant was visited by a court ‑ appointed guardian ( kurator sÄ…dowy ), who became concerned about the state of her hygiene and the general conditions of her domicile.

On 7 December 2018 the Strzelce Opolskie District Court ( S ąd Rejonowy ) acting proprio motu launched proceedings concerning the limitation of the applicant ’ s parental rights in respect of her son ( ograniczenie władzy rodzicielskiej ). On the same day it decided to temporarily place B. in the care of a foster family for the duration of the proceedings.

The court noted that the applicant was suffering from schizophrenia and within the previous three years had been admitted to a psychiatric hospital in O., from which she had escaped and fled to Germany. The court also considered reports of domestic violence in her parents ’ house and decided that the child ’ s best interests made it necessary to place him in foster care.

The applicant appealed against that decision. She argued that the guardian was mistaken in his opinions and she disputed allegations of domestic violence. She also indicated that B. was displeased with being taken away from her.

On 4 April 2019 the Opole Regional Court ( Sąd Okręgowy ) dismissed her appeal. It held that the applicant had refused to accept her mental illness and in essence, she had asked to place B. in the foster care of her parents, to which they did not agree. The court also noted that B. ’ s best interests made it necessary to place him in foster care for the duration of the proceedings. Finally, it stated that the measure was only temporary and in no way had an impact on the outcome of the proceedings, which were still pending.

Meanwhile, on an unspecified date, the proceedings concerning the applicant ’ s mandatory placement in a psychiatric hospital were launched. Having learned of that development, the applicant left Poland and returned to Munich. She did not inform the court about the change of her address.

On 18 April 2019 the decision of 4 April 2019 was mailed to the applicant ’ s old address, from where it was returned to the court – on an unspecified date – as uncollected.

The application was lodged with the Court on 31 October 2019.

On 19 March 2020 the applicant provided the Court with a psychiatric evaluation performed by a psychiatrist in Nürnberg . The psychiatrist determined that the applicant suffered from a dependent personality disorder and excluded a diagnosis of schizophrenia. It was also noted that her current condition would allow her to care for he r children, with support from a relevant institution.

Article 139 of the Code of Civil Procedure ( Kodeks postępowania cywilnego ), in so far as relevant, reads:

“§ 1. Where it is impossible to serve writs in a manner provided for in the preceding Articles, a writ delivered via a postal operator within the meaning of the Postal Law Act of 23 November 2012 shall be deposited with the post office of that operator ... , whereupon a notice of the same shall be left in the door to the addressee ’ s apartment, or in a mailbox, stating where and when the writ was left and instructing that the writ should be collected within seven days from the date of the notice. If the writ is not collected within such period of time, another notice shall be provided.”

Article 756 1 of that Code reads:

“In matters involving custody over minors and contacts with a child, the court rules on a security after conducting a trial, unless the case is urgent.”

The Supreme Court ( Sąd Najwyższy ), in its decision ( postanowienie ) of 12 March 2015, I CZ 6/15 held:

“ The date of alternative service ( doręczenie zastępcze ) is considered as the date, upon which the time-limit to collect a writ deposited at the post office had expired.”

Article 109 of the Family and Guardianship Code ( Kodeks rodzinny i opiekuńczy ), insofar as relevant, reads:

Ҥ 1. If the best interest of the child is endangered, the guardianship court issues appropriate orders.

§ 2. The guardianship court may, in particular:

...

5) order the placement of a minor in foster care, the child ’ s family home or institutional care foster home or temporarily entrust it to a married couple, who shall act as a foster family ... ”

COMPLAINT

The applicant complains under Article 8 of the Convention about being forcibly separated from her son, without relevant and sufficient reasons for such action.

QUESTIONS TO THE PARTIES

1. Has the applicant complied with the six-month time-limit laid down in Article 35 § 1 of the Convention? Reference is made to the fact that the decision of 4 April 2019 was dispatched to her on 18 April 2019 and was available for collection at the post office at least until 2 May 2019.

2. Has there been a violation of the applicant ’ s right to respect for her private and family life, contrary to Article 8 of the Convention? In particular, was the decision to place the a pplicant ’ s son in the care of a foster family based on relevant and s ufficient reasons (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 170 , ECHR 2000 ‑ VIII)?