Communicated on 18 January 2016

FOURTH SECTION

Application no. 51241/15 W Å‚ adys Å‚ aw and Mariola PIELECH against Poland lodged on 8 October 2015

STATEMENT OF FACTS

The applicants, Mr W ł adyslaw Pielech and Ms Mariola Pielech , are Polish nationals, who were both born in 1954 and live in Wrocław .

A. The circumstances of the case

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

The applicants ’ are grandp arents to a girl K, born on 22 August 2012. K ’ s father, P, is the applicants ’ son. Her mother, SZ, has another child from a previous relationship, a boy D, born on 21 November 2010.

SZ and P began a relationship in 2011. Subsequently, their daughter K was born. Since K ’ s birth, t hey all lived with the applicants in the applicants ’ flat.

On 1 July 2013 the Wroclaw District Court appointed a guardian in order to supervise SZ and P in the exercise of their parental authority over K.

On 22 August 2013 the Wroclaw District Court instituted a procedure to change the custody arrangements over D and K. The court relied on the information provided by the guardian, according to whom the children ’ s situation deteriorated. SZ was beaten by P, they were often arguing and there was a risk that they were also maltreating the children.

On 23 August 2013 the Wrocław District Court decided that the boy ’ s place of residence should be with his natural father DK. At the same time it decided to place K in a children ’ s home.

On 3 October 2013 the applicants lodged an application to be appointed foster parents for K. They submitted that K had been living with them since her birth and that they had always supported the parents in the exercise of their parental authority.

On 16 December 2013 K was placed in a children ’ s home in Wrocław . On 28 January 2014 the court agreed that the applicants could visit her there every day.

At the same time, in December 2013 SZ ended her relationship with P and moved out of the applicants ’ flat. As from April 2014 she has been living with a new partner.

Meanwhile, on 23 January 2014 an expert psychologist submitted his opinion to the court. The expert noted that the applicants were prepared to take care of K. They had an emotional bond with her. There was further no indication that they would not have been able to take proper care of her. However, their age and their attitude towards their own children were considered to be factors militating against their request.

In a supplementary opinion, the expert psychologist observed that the applicants visited K regularly and had very good contact with her. He agreed that it was largely due to the grandparents ’ involvement that K had developed good psychomotor skills.

On 25 April 2014 another expert psychologist submitted his opinion to the District Court. According to the opinion, SZ was immature, as a parent she was superficial. She felt an emotional bond with K, however, this connection was shallow. She did not demonstrate parental responsibility for her children, had serious childrearing problems and her parenting capacity was low.

On 27 May 2014 the Wrocław District Court gave a decision concerning K and D ’ s custody. It held that full parental authority over D was to be exercised by his father - DK, whereas the parental rights of SZ were to be limited. The child ’ s place of residence was to be with his father. As regards K, the court decided to divest SZ and P ’ s of their parental authority and to place her in foster care. The court also dismissed the applicants ’ motion to become a foster family for K.

In this respect, the court held that the applicants did not guarantee a proper functioning of a foster family for K. As the court appointed guardian had already observed there had been many irregularities in their conduct. In particular, they had accepted P ’ s refusal to undertake a paid employment, they failed to conform to the guardian ’ s recommendations as regards keeping the flat tidy, they had further tolerated their son ’ s aggressive behaviour towards SZ. The court referred to the psychologist ’ s opinion, according to which the applicants had an emotional bond with their granddaughter and were ready to take care of her. However, their attitude towards their own children and their age could have prevented them from providing the requisite childrearing conditions for K ’ s development.

The court agreed that the applicants had an emotional bond with their granddaughter and they had also invested much time and effort in her care. In addition, their financial situation was good and they would have been able to provide for her needs. The court noted that the applicants were 59 (the grandmother) and 60 (the grandfather) years old at that time. Their monthly income had been over PLN 5.000,00 (EUR 1.250 ,00 ) net. They had an apartment which was adapted for a child ’ s needs.

However, when refusing the applicants ’ request t he court referred to the child ’ s best interest. It stressed that K, who was not even two years ’ old at that time, had a chance to grow in a full foster family, capable of securing her needs. While the applicants, in view of their age, would not be able to cope with the weight of childrearing duties related to the functioning of a foster family.

The applicants appealed, challenging the court ’ s assessment.

On 26 January 2015 a social worker, employed by the Wrocław City Centre for Social Services ( Miejski Ośrodek Pomocy Społecznej ) submitted her opinion to the court. With respect to living conditions, she noted that the apartment was cluttered and there were numerous boxes and clothes piled up. She further observed that the applicants could not guarantee proper care given their advanced age (“ zaawansowany wiek ”). Lastly, the applicants ’ own sons were not independent and were still supported by the applicants.

On 7 April 2015 the applicants submitted their comments on the social worker ’ s opinion. In particular, they stressed that they were in the process of selling their flat and buying a new, bigger one. The boxes were being prepared for the planned move. They submitted copies of preliminary apartment sale contracts.

On 8 April 2015 the Wrocław Regional Court dismissed their appeal. In the course of the proceedings the court established that the applicants ’ apartment was not prepared for a child ’ s needs and it was cluttered. Furthermore the applicants did not fulfil the criteria for foster parents as they could not have guaranteed proper foster care due to their old age. The Regional Court agreed that the applicants had sufficient financial means to support their granddaughter and they were also in good health. However, in view of all evidence before it, the court considered that they would not be able to cope with the childrearing tasks . Emphasis was put on the applicants ’ consistent refusal to co-operate with the guardian. The first applicant was allegedly aggressive towards her and refused to give any information. In addition, despite the guardian ’ s recommendations the flat remained cluttered and untidy. The court further noted that the applicants had committed many parenting mistakes with respect to their two sons.

The applicants submitted many complaints to various institutions in respect of the court ’ s decisions. They stressed that since April 2015 their contact with K. had been seriously restricted by the care institution to two visits per month, in contravention to the court ’ s order of 28 January 2014.

On 1 June 2015 the applicants sold their flat and on 11 June 2015 they bought a bigger, two bedroom apartment.

On 11 June 2015 the Dolnoslaski Governer (“ Wojewoda dolno ś l ą ski ”), in reply to the applicants ’ complaint confirmed that their complaint was justified and ordered a control in the care institution.

Meanwhile, on 3 June 2015 K was moved from the children ’ s home. The applicants have no information whether she was placed with another foster family or with a prospective adoptive family.

B. Relevant domestic law and practice

1. Foster parents

According to section 41 of the Act on family support and the system of foster care of 9 June 2011 (“ Ustawa o wspieraniu rodziny i systemie pieczy zastepczej ”- “the Foster Care Act”) a foster, kinship family is composed of a married couple or a single person who are the child ’ s grandparents or his/her siblings. They have to fulfil the conditions provided in section 42 of that act, in particular:

- have to guarantee proper foster care

- have never been divested of parental rights

- have full legal capacity

- reside in Poland

- are able to provide proper care to a child, which was confirmed by a medical doctor and a psychologist

- are able to provide proper living and material conditions for the child ’ s development

2. Contacts with a child

Under Article 113 6 of the Family and Custody Code of 1964 ( Kodeks Rodzinny i Opiekunczy - “The Family Code”) provisions of the Section concerning establishment and maintaining contacts with a child apply also to contact with siblings, grandparents, relatives in a straight line, and other persons, if they have cared for the child over a long period of time.

COMPLAINTS

The applicants complain without invoking any provisions of the Convention about the refusal to appoint them as foster parents for their granddaughter and claim that they have been discriminated against on the ground of their age. They further allege in substance that they have no contact with K since her removal from the children ’ s home.

QUESTIONS TO THE PARTIES

1. Has there been a violation of the applicants ’ right to respect for their family life, contrary to Article 8 of the Convention? Reference is made to the Wroclaw District and Regional Courts ’ decisions of 27 May 2014 and 8 April 2015 (see, Y.C. v. the United Kingdom , no. 4547/10 , 13 March 2012 )?

2. Have the authorities taken adequate measures to ensure effective exercise of the applicants ’ right of access to their granddaughter as required under Article 8 of the Convention? D id the applicants exhaust the available domestic remedies in respect of their complaint?

3. Have the applicants suffered discrimination on the ground of their age, contrary to Article 14 of the Convention read in conjunction with Article 8 (see Schwizgebel v. Switzerland , no. 25762/07 , ECHR 2010 (extracts) ?