Communicated on 22 August 2016

FOURTH SECTION

Application no. 4993/15 B.S . against Poland lodged on 16 January 2015

STATEMENT OF FACTS

The applicant, Mr B . S . , is a German national who was born in 1973 and lives in Bad Iburg , Germany. He is repres ented before the Court by Mr W. Studziński , a lawyer practising in Wroc ł aw.

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

A. Background

1. The applicant ’ s family status

The applicant was married to S.S., a Polish national. The couple lived in Germany together with S.S. ’ s minor daughter, M. In December 2010 the couple ’ s son, C., was born. C. has German and Polish nationality. The couple split up in July or August 2012.

2. Criminal proceedings against the applicant

In 2012 S.S. lodged numerous criminal complaints and contacted various authorities, alleging that the applicant had harassed her and had sexually abused C. From September 2012 until her departure to Poland in July 2013, S.S. and the family were under the supervision of social workers from the local Youth Office. As stated in a letter from the Youth Office dated 4 November 2013, social workers had reported that C. had no visible marks of sexual abuse by his father while the father was a caring, tender and cooperative parent.

On 1 November 2012 S.S. lodged a criminal complaint, submitting that on 1 July 2012 the applicant had assaulted her by painfully twisting her arms. On 11 September 2013 the Bad Iburg District Court acquitted the applicant of that charge, considering that the allegation had not been sufficiently corroborated by any evidence. S.S. appealed but later withdrew that action.

On an unspecified date in the second half of 2013, S.S. lodged a criminal complaint with the Åšwidnica district prosecutor, alleging that between 3 and 28 February 2013 the applicant had committed criminal offences against her children. As a result, a criminal investigation was opened in Germany by the Osnabruck district prosecutor. On 22 November 2013 the Osnabruck district prosecutor discontinued the investigation. A copy of the decision has been submitted to the Court without the reasoning behind it.

3. Proceedings before the family court in Germany

On 25 October 2012 the Bad Iburg District Court ( Amtsgericht ) appointed a guardian to represent C. in proceedings for custody and contact.

On 15 February 2013 the Bad Iburg District Court granted the applicant contact rights with M. and C. The district court authorised the applicant, inter alia , to take the children to his home every other weekend, including having them sleep there. The district court considered that even if in 2012 the applicant had physically attacked S.S. in front of M., as submitted by S.S., that incident was of no relevance for the contact proceedings concerning M. and C. The court found, on the basis of evidence which included the testimony of M., that the applicant had not been violent towards the children.

As established by the Polish family court in the course of the Hague Convention proceedings which are described below, the applicant ’ s contact with C. was initially irregular and ceased completely in March 2013 after having been impeded by S.S. The applicant has not taken any legal steps to enforce his contact rights.

On 31 July 2013 the Bad Iburg District Court issued a residence order, granting the applicant the exclusive right to decide on C. ’ s residence. The district court held that it was in C. ’ s best interests to live with his father. It relied on a report submitted on 30 May 2013 by an expert from the Forensic Psychology Institute; medical certificates of 5 November 2012 and 22 July 2013, which stated that S.S. had been suspected of having had a psychotic episode; a police report of 1 August 2012; submissions by the court guardian of 17 May 2013 who had recommended that C. should live with his mother provided that the latter cooperated with the child ’ s father; and correspondence with S.S. The Bad Iburg District Court thus found that S.S. had been hindering the applicant from having contact with C., that she had not been cooperative and that she was possibly suffering from a psychiatric condition which she refused to treat. The decision also stated that S.S. rejected everyone, including her own lawyer and the court guardian, who did not share her subjective fears that the children were in danger.

The two above-mentioned decisions were certified under the European Council ’ s Regulation no. 221/2003.

On 9 September 2013 the Bad Iburg District Court issued an interim order that C. should be immediately returned to the applicant.

On 2 December 2013 the Oldenburg Court of Appeal ( Oberlandesgericht ) dismissed an interlocutory appeal by S.S. against the decision of 31 July 2013. S.S. participated in those proceedings.

On 22 January 2014 the Bad Iburg District Court upheld its interim order that C. should be immediately returned to the applicant.

On 27 May 2014 the Oldenburg High Court dismissed an interlocutory appeal by S.S. against that decision. As submitted by the applicant, the interim order in question had not been made enforceable because of the ongoing proceedings in Poland.

Meanwhile, on 28 April 2014 the Bad Iburg District Court declared the couple divorced.

B. Child retention and proceedings under the Hague Convention

In early July 2013 S.S. travelled with the children to Poland without the applicant ’ s consent or knowledge. In early August 2013 she informed the applicant that she was not returning to Germany with the children. S.S. and the children moved in with S.S. ’ s mother in Świdnica . C. had already been registered as residing at that address on 26 March 2013.

On 21 August 2013 the applicant lodged an application for C. ’ s return with the German Hague Convention Central Authority. He stated that S.S. suffered from undiagnosed emotional and mental conditions, in particular paranoia, and that she had imagined that he had been violent and had sexually abused their son.

On an unspecified date the application was registered with the Åšwidnica District Court ( SÄ…d Rejonowy ).

In response to the applicant ’ s application, S.S. submitted that the applicant had subjected the family to psychological and physical violence and had sexually molested their son. The child had continued to be exposed to danger, despite the couple ’ s separation, because the German family court had authorised visits by the child to his father ’ s house. S.S. described various incidents of abuse which had allegedly been described by her son after the visits. S.S. also stated that she had had to leave Germany because her neighbours had harassed her and she had not obtained help from the authorities, hospitals or doctors she had contacted on numerous occasions. Help provided to the children in Poland had, on the other hand, re ‑ established their psychological balance.

On 11 December 2013 the Świdnica District Court decided to obtain a report from the Family Consultation Centre ( Rodzinny Ośrodek Diagnostyczno-Konsultacyjny - “the RODK”). The centre ’ s experts were ordered to assess C. ’ s bond with each of his parents; whether the child displayed any signs of having been sexually molested or subjected to psychological or physical violence at the hands of any person; and whether there was a serious risk that returning the boy to Germany to be cared for by his father and separating the child from his mother would expose him to physical or psychological harm or otherwise place him in an intolerable situation.

The experts spoke with the family on two unspecified dates. C. was accompanied by his elder sister, his mother and grandmother. The applicant was assisted by an interpreter and accompanied by a friend.

On 6 February 2014 the RODK report was submitted to the district court. It contained the following conclusions: C. was most attached to his mother; their emotional bond was very strong; S.S. provided C. with love, care and a feeling of security; C ’ s bond with his father was not strong but the boy did not fear his father; C. did not present any signs of being a child who had been subjected to violence of any kind; the child ’ s return to the care of his father in Germany and separation from his mother would expose him to a serious risk of physical and emotional harm because it would shake the foundations of the stability of his life and change the centre of his life. That, in turn, would drastically disrupt his relations with the people who were important to him and cause him trauma.

The experts also observed that a psychiatric examination of S.S., which she had undergone for the purposes of the RODK report, had not confirmed the allegation that she suffered from a mental illness.

On 19 February 2014 the Świdnica District Court dismissed the applicant ’ s Hague Convention application. It relied on the following materials: the testimony of the applicant and S.S.; the RODK report; various medical certificates; the decisions of the German courts and authorities which had been produced in the course of the criminal proceedings against the applicant and in the proceedings before the family courts; and material which had been obtained for the purpose of those proceedings, including the report from the Forensic Psychology Institute and the letter from the Youth Office.

The Świdnica District Court held that the child ’ s return to Germany would put him at serious risk of psychological harm. The domestic court gave the following reasons for its decision: (1) C ’ s separation from his mother would be very traumatic for the child because S.S. was his primary and only carer; (2) it would be equally destructive to separate C. from his elder sister; (3) contact between the child and his father had ceased almost completely in March 2013, the child saw the applicant as a stranger and had an indifferent attitude to him; and (4) when tested by the RODK, the applicant had avoided a stressful situation which confirmed that he would have difficulty taking care of his son and providing him with emotional security. The domestic court also observed that in view of C. ’ s young age he was likely to accept any place of residence as long as his mother and sister were there with him. Lastly, the district court observed that the large amount of evidence obtained in the case showed that S.S. ’ s allegations of violence and child abuse at the hands of the applicant were ill-founded.

The applicant appealed, arguing that the Polish court had erred, inter alia , by ignoring the precedence of the 2003 EU Council Regulation and, instead, examining the case under the Hague Convention. It had also relied on the assumption that the child ’ s mother would not return to Germany with the child, had tested the child-father relationship in the presence of other relatives and had not sought any supplementary report from the RODK.

On 17 July 2014 the Świdnica Regional Court ( Sąd Okręgowy ) dismissed the applicant ’ s appeal. Firstly, the appellate court observed that the EU Regulation was a secondary legal instrument and that the case had been rightly brought and examined under the Hague Convention. It then held that the return of S.S. to Germany was indeed impossible in the circumstances of the case, in particular in view of the major conflict between the parents and the criminal proceedings against S.S. which were ongoing in Germany. The regional court did not elaborate on the latter issue. The domestic court also noted that the applicant had ignored the question of the return of C. ’ s elder sister, which had not been covered by the Hague Convention proceedings. It also observed that the reports by the experts from the RODK and the German Psychology Institute had been clear and consistent in their conclusion that S.S. was C. ’ s primary carer and more important to him than his father. It was therefore unnecessary to seek any supplementary reports.

The decision was served on the applicant on 6 August 2014.

C. The applicant ’ s contact with the child and other developments

The applicant submitted that S.S. had hindered his contact with the child.

On 8 April 2014 the Świdnica District Court issued two decisions rejecting S.S. ’ s applications to have the applicant ’ s contact arrangements changed and to obtain custody over C., respectively, on the grounds of lack of jurisdiction. On 14 July 2014 the Świdnica Regional Court issued two decisions dismissing interlocutory appeals by S.S.

On 10 December 2014 the Åšwidnica District Court rejected an application by S.S. for child support.

On 31 December 2014 the Åšwidnica District Court rejected another application brought by S.S. for new contact arrangements on the grounds of lack of jurisdiction.

It appears that in April 2014 the applicant brought an action to have S.S. fined for hindering his contact rights (no. III Nsm 380/14). Those proceedings are ongoing.

COMPLAINTS

The applicant complains under Articles 6 and 8 of the Convention of a breach of his right to respect for his family life because of the dismissal of his Hague Convention application and various shortcomings in the decision-making process.

More specifically, the applicant argues that the impugned refusal to order the child ’ s return resulted from an incorrect application of Article 13 (b) of the Hague Convention in so far as it was based on the assumption that the child would have to be separated from his mother if he were to return to Germany.

Moreover, the applicant argues that the impugned dismissal was arbitrary, based on insufficient evidence and disregarded the principle of equality of arms. The applicant submitted to this end that the RODK ’ s examination of the child should have been carried out as soon as the case had been registered with the Polish court and that the ensuing report should have been supplemented by: (1) an examination of C. ’ s behaviour in the presence of the applicant alone, that is, without S.S. and the child ’ s grandmother; (2) an assessment of S.S. ’ s parenting skills in view of her prior behaviour in Germany; (3) information about S.S. ’ s psychological incident as documented by the German Forensic Psychology Institute.

The applicant also complains that the Polish domestic courts did not respect the jurisdiction of the German courts, in breach of the principles of international law.

Lastly, the applicant complains that the domestic courts took too long to examine his Hague Convention application, in breach of the requirement of expeditious proceedings under Article 11 of the Hague Convention.

QUESTIONS TO THE PARTIES

1. Has there been a violation of the applicant ’ s right to respect for his family life, contrary to Article 8 of the Convention, as regards the length of the impugned Hague Convention proceedings and the refusal of the domestic court to order the return of the child ?

2. The parties are also asked to provide all the information they have about the criminal proceedings against S.S. in Germany.