Communicated on 9 February 2017

FOURTH SECTION

Application no. 16202/14 M.V against Poland lodged on 3 August 2014

STATEMENT OF FACTS

The applicant, Mr M.V., is an Italian national, who was born in 1976 and lives in Piacenca, Italy. He is represented before the Court by Mr A. Mancani, a lawyer practising in Warsaw.

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

A. Background

In April 2011 the applicant met a Polish national, K.P., and on an unspecified date soon afterwards, started living with her on and off in Poland, renting long-term accommodation in a hotel. In September 2011 K.P. became pregnant. The couple were planning to continue living in Poland. They started renovating a building adjacent to the home of K.P. ’ s parents. They made wedding arrangements. K.P. registered at a local unemployment office. She was under gynaecological care in Kluczbork, and was scheduled to give birth there on 21 May 2012.

Before giving birth K.P. made several short trips to Italy with the applicant.

On 28 March 2012 she travelled with him to Italy to make a deposition with the applicant ’ s lawyer in relation to a criminal case pending at that time against the applicant in Piacenza. The couple returned to Poland a week later.

On an unspecified date after 8 April 2012 K.P. went again to Italy. This time she was asked to give testimony in support of the applicant before a criminal court.

The couple remained in Italy.

On 20 May 2012 their son, M., was born there. He was registered as an Italian national at the applicant ’ s home address. He was also registered under the Italian health insurance scheme. K.P. was not registered as living at the applicant ’ s home address and she did not have Italian health insurance.

The family started living in the applicant ’ s house. K.P. ’ s parents also moved in with them to help out with the baby.

Several instances of the applicant using physical violence towards the child and K.P. were recounted by witnesses in the course of the Hague Convention proceedings, which are described below.

In early June 2012 K.P. contacted the Polish consulate in Milan, asking to be taken to a centre for single mothers.

On 11 June 2012 the Polish consulate and the local police intervened after K.P. reported that the applicant had assaulted her and her parents and had tried to strangle her and to throw her family out of his house.

On 12 June 2012 the applicant drove K.P. ’ s parents to Poland. He did not agree to let K.P. and the child leave Italy too.

In the applicant ’ s absence that day, K.P. ran away with the child. She took a bus to Austria; from there she was driven to Poland by her brothers.

K.P. refused to return her son to Italy or to move there with him.

B. Proceedings for child custody instituted by K.P.

On 18 June 2012 K.P. lodged with the Kluczbork District Court ( SÄ…d Rejonowy ) an application for an interim residence order and for an order granting her the temporary right to enforce her custody over the child (III RNsm 222/12).

On 6 July 2012 the Kluczbork District Court delivered an interim decision made a residence order in regarding M. in favour of K.P. and granting her custody of the child.

On 31 July 2012 the Kluczbork District Court stayed the main proceedings in respect of the residence and custody of M. in view of the applicant ’ s request for the child ’ s return. That decision was served on the applicant ’ s lawyer on 7 September 2012.

3. Proceedings for the child ’ s return and contact arrangements under the Hague Convention

On an unspecified date shortly before 31 July 2012 the applicant applied to the Italian Central Authority for the child ’ s return under the Hague Convention.

On an unspecified date (presumably on 6 August 2012) the case was registered with the Kluczbork District Court.

On 22 May 2013 the applicant applied for interim contact arrangements under the Hague Convention. In particular, he wished to be authorised to visit his son on three consecutive days in a month, for five hours on each of those days. He also asked that the visits take place at the child ’ s home without the presence of any third parties or at his hotel.

The first court hearing was held on 23 May 2013.

At the hearing the applicant ’ s lawyer informed the domestic court that the parties had agreed that the applicant would visit M. on every first weekend of the month at K.P. ’ s house, in the presence of a court guardian.

On 23 May 2013 the Kluczbork District Court issued an interim decision granting the applicant the right to visit his child, in line with the parties ’ agreement, on three consecutive days (from Friday through Sunday) from 2 p.m. to 5 p.m. at K.P. ’ s house, in the presence of a court guardian.

On 13 August 2013 the Kluczbork District Court refused the applicant ’ s Hague Convention request under Article 13 (a) and (b) of the Hague Convention.

The domestic court made the following observations in the reasoning for its decision.

(1) At the time of the child ’ s removal from Italy, the applicant had indeed had custody rights in respect of the child by virtue of the fact that he had acknowledged his paternity at the child ’ s birth and that the child had lived with him.

(2) On the other hand, despite the fact that he had carried out some of his parental duties, his right of custody had not been effectively enforced. The effective enforcement of a custody right consisted of caring for the child ( troszczenie siÄ™ o dziecko ).

According to the evidence obtained by the domestic court (in particular the testimony of K.P., her relatives and other witnesses), the applicant had not taken care of his son after his birth. He had often left the house, annoyed by the baby ’ s crying, or he had stayed at home sleeping. After a number of failed attempts at washing or changing the baby or helping K.P. when she was breast-feeding, he had given up on doing anything around the child. The applicant ’ s argument that he had been busy working was considered by the domestic court as unsupported by evidence. The applicant ’ s violence towards K.P. – such as yanking, pushing and suffocating her, throwing her out of the house, instigating rows, and calling her names such as merda (“shit”) – and his violence towards the child – in particular snatching the baby from the mother and waking him up – were signs of sheer wickedness and undermined the argument that the applicant cared about the child.

(3) Italy was not the child ’ s habitual residence within the meaning of Article 3 of the Hague Convention because the boy had stayed there for only twenty-two days after his birth and, according to the witnesses, the parties had always planned to settle in Poland.

The applicant ’ s argument that the family had wished to live in Italy was not credible. The applicant had lured K.P. into going to Italy. His actions had been aimed at having his child born in Italy where “he would have unlimited control over [the child] and direct influence over K.P. ’ s behaviour ... [His actions] reflected the family model which was typical to southern Italy [in that] he had told K.P. that he would ‘ teach her obedience and respect towards him and towards the Italian law; he is the father, anything is allowed to him, he is in his right ’ ”. K.P. had never wished to settle in Italy.

(4) Ordering the child ’ s return would also be contrary to Article 13 (b) of the Hague Convention. Given the circumstances of the case, K.P. ’ s return to Italy with the child was objectively impossible and the child ’ s separation from the mother would have severely negative consequences.

K.P. did not have any employment opportunities in Italy and had no place to live there with her child. The applicant ’ s offer to give her lodging in the transitional period could not be viewed as a realistic option in view of the growing conflict between him and K.P.

K.P. was the boy ’ s sole carer and she took good care of him; the child was sixteen months old at the time of the ruling and had a close bond with the mother. Severing that bond and returning the child to Italy without the mother would result in exceptional suffering and hence psychological and physical harm, and an intolerable situation.

K.P. had been running a small business in Poland and could count on the financial and practical help of her family. The applicant could not care for the baby alone because he worked seven hours per day and he could not count on help from his elderly mother or sister, who had two jobs.

The domestic court concluded by noting that the applicant was impulsive, aggressive, probably under psychiatric treatment, and had been violent towards K.P. and his son.

The applicant appealed on, inter alia , the following points of fact and law: (i) the first-instance court had ruled in breach of Article 13 (a) and (b) of the Hague Convention, firstly in that it had concluded that the applicant had not had effective custody of the child prior to his removal from Italy and secondly, in that it had concluded that given the circumstances of the case there was a grave risk that the child ’ s return to Italy would expose him to psychological harm and would place him in an intolerable situation, and (ii) the first-instance court had conducted an incorrect and selective assessment of the evidence.

On 30 December 2013 the Opole Regional Court ( Sąd Okręgowy ) upheld the first-instance judgment.

The appellate court held that the first-instance court had erred in its ruling under Article 3 of the Hague Convention because Italy had been the child ’ s habitual residence, irrespective of whether or not K.P. had intended to settle there and irrespective of the quality of the care afforded by the applicant at the time when the child had been living with him.

Furthermore, the appellate court observed that international and domestic practice required that Article 13 (b) of the Hague Convention be interpreted in a restrictive manner to the effect that, in principle, any unfavourable consequences of a child ’ s separation stemming from an order for the abducting parent to surrender the child did not give rise to a grave risk of physical or psychological harm within the meaning of that provision. The aim of the Hague Convention would be achieved if the abducting parent returned with the child.

The appellate court acknowledged the principle that separating a child from the abducting parent would only fall within the Article 13 (b) exceptions if objective obstacles to the parent ’ s return were shown to be present. However, it reasoned that the application of that principle was more complex in cases concerning the abduction of an infant by a parent who had a dominant role in the child ’ s life. The appellate court reasoned that the application of the principle that separating the child from the abducting parent would only fall within the Article 13 (b) exceptions if objective obstacles to the parent ’ s return were shown to be present, was more complex in cases concerning the abduction of an infant by a parent who had a dominant role in the child ’ s life.

Consequently, the regional court considered that, although K.P. had not demonstrated sufficiently justified objective obstacles to her return to Italy, separating the child from her would inevitably be contrary to M. ’ s best interests, in view of the special relationship between the mother and her infant son.

Lastly, the appellate court ruled that the first-instance court ’ s assessment of the evidence had been thorough and compliant with the applicable procedure.

It appears that during the Hague Convention proceedings, the applicant waived his right to visit his son in June and July 2013. A three-day visit took place in August 2013.

COMPLAINTS

The applicant complains under Article 6 of the Convention of the unreasonable length of the Hague Convention proceedings.

He also complains of a breach of his right to respect for his family life under Articles 8 and 14 of the Convention because of the dismissal of his Hague Convention request. In particular, he argues that the unfavourable outcome of the impugned proceedings resulted from the domestic courts ’ bias against him and their prejudice against him on the ground that he comes from southern Italy. He also complains that his contact with his child has been rendered difficult because of the presence of a court guardian, which was ordered by the domestic court.

QUESTION TO THE PARTIES

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

In particular, is 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 one year and five months?