Communicated on 29 September 2016

FOURTH SECTION

Application no. 31405/14 A.P. against Poland lodged on 16 April 2014

STATEMENT OF FACTS

The applicant, Mr A.P., is a British national who was born in 1963 and lives in Basingstoke. He is represented before the Court by Mr T. Krzy ż anowski , a lawyer practising in Poznań .

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

A. Background

Between 2003 and 2008 the applicant lived with his Polish partner, A.O., in the United Kingdom. The couple had twin daughters, born in 2005. The relationship broke down and on 25 June 2008 Basingstoke County Court approved a consent order that the children ’ s residence would be with the mother in Warsaw, Poland and that the applicant would exercise his contact rights every other weekend in Poland, during the Christmas and Easter holidays in the United Kingdom and for half of the summer holidays in the United Kingdom. On an unspecified date soon afterwards A.O. moved with the children to Poland. On 21 August 2008 the children were registered at A.O. ’ s parents ’ address. On 16 December 2009 the Warsaw Regional Court ( Sąd Okręgowy ) issued a decision recognising the validity of the Basingstoke court ’ s decision of 25 June 2008.

In May 2011 A.O. returned to the United Kingdom with the children in order to resume her relationship with the applicant. The girls started attending a local school and were registered at a local medical centre.

On 19 December 2011 A.O. and the children left the applicant ’ s home without his knowledge or consent.

On 20 December 2011 the applicant applied to Basingstoke County Court, which immediately issued a prohibited steps order to stop A.O. leaving England or Wales until a further decision by the court and creating a Port Alert with the local police.

On 21 December 2011 the applicant learned that A.O. and the children had travelled to Poland on 19 December, prior to the issuing of the prohibited steps order.

On 13 January 2012 the High Court of Justice ruled that Basingstoke County Court ’ s residence order of 25 June 2008 had ceased to have effect by virtue of section 11(5) of the 1989 Children ’ s Act as a result of the couple ’ s reconciliation and their having lived together in the United Kingdom for longer than the statutory period of six months. The High Court of Justice also stated that the children ’ s habitual residence was in England and Wales and that because A.O. had failed to inform the applicant about the children ’ s departure, their removal and retention in Poland were unlawful.

B. Hague Convention proceedings

On an unspecified date (apparently after 8 February 2012) the applicant lodged an application for the children ’ s return with the Hague Convention Central Authority. He argued that the British court ’ s decision to approve the couple ’ s agreement that the children would reside with A.O. in Poland had become void after the children ’ s return to the United Kingdom and the couple ’ s resumption of their relationship in May 2011.

On 8 March 2012 the applicant ’ s Hague Convention application to have the children returned to the United Kingdom was registered with the Warsaw District Court ( Sąd Rejonowy ).

On 2 April 2012 the Warsaw District Court ordered A.O. to surrender the children to their father within five days.

On 11 April 2012 A.O. asked for an extension of the deadline in order to submit a reply to the order to surrender the children. On 17 April 2012 she asked that the applicant ’ s Hague Convention application be dismissed, submitting that under the 2008 agreement with the applicant Poland was the place of the children ’ s habitual residence. In her opinion, that decision was still binding and her return to the United Kingdom in May 2011 had been meant to be temporary as it had been a test of their reunited family life. A.O. also submitted that in December 2011 she had left the United Kingdom because attempts to get back together with the applicant had failed and because she had felt threatened by the applicant ’ s aggressive behaviour towards the children.

On 10 May 2012 the applicant ’ s lawyer asked for an interim decision on depositing the children ’ s passports and identity cards with the court and for an order not to leave the country.

The first hearing was held on 21 May 2012. A.O. submitted that the children ’ s habitual residence was with her in Poland and so no wrongful removal had taken place. The presiding judge decided to return the applicant ’ s application for interim measures owing to the non-payment of court fees. A legal aid lawyer was also assigned to represent A.O.

On 22 May 2012 the applicant ’ s lawyer completed his application for interim measures by paying the necessary court fee.

On 25 May 2012 the Warsaw District Court ordered A.O. not to leave the country with the children and to deposit the children ’ s travel documents with the court until the end of the proceedings.

On 20 June 2012 A.O. lodged an interlocutory appeal against the decision on interim measures.

On 5 July 2012 the Warsaw District Court dismissed the applicant ’ s application for a legal aid lawyer.

On 9 July 2012 the domestic court decided to obtain a report from experts at the Family Consultation Centre ( Rodzinny OÅ›rodek Diagnostyczno-Konsultacyjny ‑ “the RODK”). The experts were ordered to assess, inter alia , whether there was a serious risk that the twins ’ return to the United Kingdom would expose them to physical or psychological harm or otherwise place them in an intolerable situation.

On 26 July 2012 the Warsaw Regional Court ( Sąd Okręgowy ) dismissed A.O. ’ s interlocutory appeal against the decision of 25 May 2012.

Further hearings were held on 21 January and 6 February 2013.

On 20 September and 29 October 2012 the family underwent a series of psychological tests and interviews at the RODK. The applicant was interviewed through an interpreter and only had a “parental attitudes test” because the three additional tests which were used for A.O. ’ s assessment were in Polish and designed for Polish nationals only. A.O. had all the tests. The RODK experts noted that the applicant was not against the children living with their mother. However, he wanted to be able to have a great deal of contact with them and to participate actively in their lives. The experts were unable to make an assessment of the applicant ’ s living conditions and, consequently, could not determine whether or not he could care for the children on his own.

On 20 November 2012 the RODK report, prepared by two psychologists and a psychiatrist, was submitted to the Warsaw District Court. The experts came to the following conclusions: the children had strong emotional bonds with each parent; each parent had sufficient parenting skills and neither of them suffered from emotional, psychological or psychiatric disorders which could be detrimental to the children; the material obtained by the experts did not allow them to determine whether or not the applicant could care for the children on his own; and, given the good development of both children and their adaptability, their return to the United Kingdom would not place them in an intolerable situation.

Apart from the RODK report, the domestic court obtained the following evidence: testimony from the applicant, A.O., members of A.O. ’ s family and a local assessment report of 18 July 2012 on the twins ’ school and how they got on with their peers.

On 20 February 2013 the Warsaw District Court dismissed the applicant ’ s Hague Convention application and decided that the parties were to bear their own costs for participation in the proceedings. The domestic court considered that A.O. had not gone to the United Kingdom in May 2011 with the intention to settle there permanently but only to try to get back together with the applicant. The applicant had reassured A.O. that she would always be able to return to Poland with the children if their attempts failed. A.O. and her daughters had travelled to the United Kingdom with a small amount luggage, leaving most of their belongings in Poland. A.O. had decided to return to Poland with her children less than six months later. The domestic court also relied on the fact that for three years prior to 2011 the centre of the children ’ s life had been in Poland where they had lived and attended school. It was held that because A.O. ’ s intention had been to stay only temporarily in the United Kingdom, Poland had remained the children ’ s habitual residence. They had not therefore been wrongfully removed in December 2011 within the meaning of Article 3 of the Hague Convention and the Hague Convention was not applicable in the circumstances of the case, according to Article 4 of that convention.

The applicant appealed, arguing that the domestic court had misinterpreted Article 4 of the Hague Convention in holding that his children had not regained their habitual residence in the United Kingdom when they had stayed there for seven months immediately before their removal to Poland by A.O. He also argued that his costs for the proceedings, including his legal representation, should be borne by A.O.

A similar appeal was lodged by the Prosecutor.

On 12 August 2013 the Warsaw Regional Court dismissed both appeals. The appellate court upheld the conclusion of the first-instance court that in 2011 the children had not had their habitual residence in the United Kingdom. However, it had a different view on the determination of the habitual residence. It found that it was not based on the internal element of a person ’ s intent to live in a particular place, but on external elements such as a continuing presence in a particular place and repeated acts undertaken there for the purpose of fulfilling the necessities of a person ’ s life. The appellate court observed that from May to December 2011 the applicant ’ s children had indeed been present in the United Kingdom, where they had undertaken repeated actions related to their life there. Nevertheless, Poland had remained a parallel place of domicile. The appellate court also relied on the agreement of 25 June 2008 by which the applicant had allowed the children to reside permanently in Poland with their mother and on the fact that after December 2011 the children had easily taken up their life again in their usual surroundings in Poland. That decision was served on the applicant ’ s lawyer on 18 October 2013.

C. Applicant ’ s contact with the children

After the children ’ s departure to Poland in 2011 the applicant ’ s contact with them was initially sporadic and short. On an unspecified date, around June 2012, the couple agreed that the applicant would have more frequent and longer meetings with the children.

COMPLAINTS

The applicant complains of a breach of his right to respect for his family life under Article 8 of the Convention because of the dismissal of his Hague Convention application. In particular, he argues that the unfavourable outcome of the impugned proceedings resulted from a misapplication of Article 3 of the Hague Convention and from the fact that the RODK experts did not test him fully owing to language barriers.

He also complains under Article 6 of the Convention of the unreasonable length of the impugned proceedings and that he was charged with the related costs for interpretation into English.

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, was the length of the impugned Hague Convention proceedings compatible with the procedural requirements of Article 8 of the Convention?