Communicated on 28 September 2015

FOURTH SECTION

Application no. 10390/15 J . N . against Poland lodged on 23 February 2015

STATEMENT OF FACTS

The applicant, Ms J. N . , is a Polish national, who was born in 1977 and lives in Warsaw. She is represented before the Court by Ms M. GÄ…siorowska , a lawyer practising in Warsaw.

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

A. Background

The applicant had two children with her partner, M.R., a son, born in 2002 and a daughter, born in 2006. The family lived in Warsaw. In May 2010 the applicant was taken to a psychiatric hospital after a violent dispute with her partner. She was diagnosed with adaptation disorders and psychopathy. In September 2010 the applicant moved out from her partner ’ s house. She took up residence in Legionowo and had the children move in with her (having taken them from school). During the proceedings which are described below, the children at first lived on and off with either parent and they later settled at the mother ’ s, meeting with M.R. every other weekend.

B. Principal residence of the children - main proceedings and interim orders

On 2 November 2010 the applicant (through a lawyer) applied to the Legionowo District Court for a decision that the residence of her children be assigned with her. She submitted that she had suffered psychological and physical abuse at the hands of her partner. The case was registered under no. III NS 291/10.

On 8 February 2011 the applicant filed an application for an interim assignment of the children to her place of residence.

A court ’ s bailiff made a visit at the applicant ’ s house and issued a report. The copy of the report has not been submitted.

On 30 March 2011 the applicant filed a complaint with the President of the Legionowo District Court that her applications had not been examined. On 12 April 2011 she complained about the delay to the supervising department of the Warsaw Regional Court.

On 13 April 2011 the Legionowo District Court dismissed the applicant ’ s request to have the children ’ s residence assigned with her by means of an interim order on the ground that more material had to be obtained in view to determining which parent provided better life prospects for the children. On the other hand, it was decided that the enforcement of the shared custody regime which was in place be supervised by a court ’ s bailiff who was to report to the family court once every two weeks. The family court also ordered a report from the Family Consultation Centre (RODK) which was to assess which parent offered better opportunities of full and balanced emotional development for the children and prospects of better care. The above decision resulted from the following findings made by the domestic court on the basis of the report from the bailiff ’ s visit at the applicant ’ s house and the parties ’ submissions: the applicant and M.R. were in a deep conflict; the applicant was in a relationship with M.R. ’ s brother and stayed a lot away from home; when the children were with the applicant, they came home at late hours; they were also spending a lot of time with their father. The domestic court concluded that the children had been deprived of the stability, peace and routine necessary for their emotional development and education.

The applicant submitted that she had been served with that decision seven weeks later.

The examination of the parents and the children at the RODK was scheduled for 8 November 2011.

On 21 June 2011 the applicant asked that her case be transferred to another court, arguing that the Legionowo District Court was biased and unfair. On 1 August 2011 the Legionowo District Court dismissed this application because the children lived with the applicant in Legionowo , hence only that court had a jurisdiction over the case.

On 26 May 2011 M.R. ’ s lawyer applied for a decision that the children ’ s residence be assigned with their father and that certain contact arrangements for the mother be ordered. He also asked that an interim order be issued to secure the children ’ s residence at his house. M.R. submitted that the applicant was emotionally unstable and had become physically violent towards him. In the past the applicant had been twice committed to a mental hospital and had more recently triggered a number of violent incidents which had ended with police intervention. The applicant ’ s relationship with the children ’ s uncle was confusing and harmful for the children. Lastly, M.R. submitted that he had flexible working hours and help from the children ’ s grandparents and, overall, offered prospects of better care.

On 29 August 2011 the Legionowo District Court dismissed M.R. ’ s application for an interim decision, holding that in the current state of affairs the well-being of the children was not threatened if they continued living at their mother ’ s. Moreover, without the RODK report the domestic court was not in a position to rule without arbitrariness on the issue of the children ’ s residence and the parents ’ contact rights. It was also decided that M.R. and the applicant ’ s respective main applications for the principal residence of the children be joint under no. III NSm 291/10.

On 19 October 2011 the applicant informed the Legionowo District Court that she had not received any correspondence from the court and communicated her lawyer ’ s address.

On 7 December 2011 the RODK issued a report drawn after the interviews and various tests of the children and the parents and the consultation of the court ’ s case-file. The two experts in psychology concluded that the applicant declared to have a positive relationship with her children. She was nevertheless found to be immature, emotionally unstable, egocentric, unpredictable, inconsistent and manipulative. It was considered that M.R. had emotional ties with his children, he was more focused on their needs and he could offer more stability. It was likely, however, that M.R. would have trouble cooperating with the children ’ s mother. It was also concluded that the children had emotional bonds with both parents. They preferred their father whom they perceived as a stable and calm person, interested in them. The applicant was seen by them as erratic, impatient and clamant. It was ultimately held that M.R. gave a better guarantee to secure adequate care to the children. Because of the strong conflict between the adults, it was recommended that the bailiff ’ s supervision be maintained and that both parents attend courses on good parenting.

On an unspecified date the applicant and the children moved to Warsaw. The applicant asked that the case be transferred to the jurisdiction of the Warsaw District Court. On 29 December 2011 the Warsaw Regional Court dismissed this application on the ground that the family court of the original place of residence retained the jurisdiction even if the parties had moved.

On 12 March 2012 M.R. lodged his second application for an interim decision that the residence of the children be assigned with him. On 16 August 2012 the Legionowo District Court dismissed this application on the ground that the main proceedings were to be soon completed because the RODK report had been produced and the parties had been heard. On 13 December 2012 the Warsaw Regional Court dismissed M.R. ’ s interlocutory appeal against this decision.

On 16 October 2013 the Legionowo District Court decided that the residence of the children be assigned with the applicant and that M.R. be granted contact rights outside of the children ’ s home from Friday evening until Saturday 6 p.m. and on the second day of Christmas and Easter holidays from 10 a.m. to 7 p.m. The domestic court relied on the RODK ’ s report and submissions made by family members and friends, and teachers. The court did not have any serious reservations about the applicant ’ s parenting. It was established that the applicant cared about the children ’ s physical, and emotional development, and about their education and health. The children had settled in their school environment and had good living conditions in the applicant ’ s home. It was therefore considered that the applicant ’ s close relationship with M.R. ’ s brother or M.R. ’ s good relations with the children could not justify changing of the children ’ s residence, especially since in the experts ’ opinion, M.R. was likely to hinder the applicant ’ s right to co-decide about the children and to make his own conditions about the contacts.

On 27 August 2014 the Warsaw Regional Court changed that decision after M.R. ’ s appeal, holding that the fist-instance court had erred in ruling about M.R. ’ s contacts with the children in absence of application for contact and, on the issue of residence, it had disregarded the children ’ s preference for the father, the bailiff ’ s reports and unequivocal facts which led to the conclusion that M.R. offered a better guarantee to secure safety and peace for the children ’ s upbringing. The appellate court relied in particular on the fact that the applicant had removed the children from their habitual environment without M.R. ’ s consent; that from May until October 2010 it was the father who had taken care of the children and prior to that, he had actively participated in their raising; and that, as reported by the court ’ s bailiff, the applicant arbitrarily decided about M.R. ’ s contacts with the children. The second-instance court also considered that the applicant ’ s relationship with M.R. ’ s brother was reprehensible and had a negative impact on the children. Overall, despite the fact that the children were well taken care of, their taking from their home by the applicant was the abuse of the applicant ’ s power and was contrary to their best interest.

The applicant did not lodge a complaint about the unreasonable time of these proceedings under the 2004 Act.

C. Enforcement

On 19 September 2014 M.R. applied for the enforcement of the above decision and forcible removal of the children from the applicant ’ s house (no. III Nsm 440/13).

On 13 October 2014 M.R. took his daughter from school. She has been living with him ever since.

On 26 November 2014 the Legionowo District Court ordered the applicant to surrender her son by taking him to M.R. ’ s house on 28 November 2014. The applicant did not comply. On 25 February 2015 the child was forcibly removed from the mother ’ s house and placed with M.R.

D. Procedure for revision of the decision on the children ’ s residence

On 2 September 2014 the applicant brought action under Article 577 of the Code of Civil Procedure to change the decision of 27 August 2014 and to issue an interim order assigning the children ’ s residence with her. She submitted that the decision to place the children with their father had resulted in their anguish, rebellion and deep emotional retreat. The case was registered under no. III Nsm 440/14.

On 6 November 2014 the applicant ’ s twelve-year old son was heard by the family judge at the Legionowo District Court. He submitted that he wished to live together with his sister at the mother ’ s house because he loved the two of them the most and he gave impression of being resigned and unhappy whenever he spends a weekend or a holiday with his father. The boy also told the judge that his father did not pay any attention to him or his sister and did not organise any activities for them, whereas they received lots of attention from the mother, i.e. they played board games, visited interesting places and did homework together. The child also submitted that M.R. talked badly about their mother, the girl ’ s room at the father ’ s house was not sufficiently furnished, whereas their rooms at the mother ’ s place were nice and well-furnished. Lastly, the boy said that he liked spending time with his paternal uncle.

On 19 November 2014 the Legionowo District Court adjourned the examination of the applicant ’ s request for an interim decision that the principal residence of the children be assigned with her. On 12 December 2014 the applicant lodged an interlocutory appeal.

It appears that the proceedings are pending.

E. Contact rights

On 25 November 2014 the applicant applied for contact rights with her daughter and for an interim order in this matter. On 25 November 2014 the applicant was asked to complete her application for interim order by submitting the planning of the contacts sought ad interim. On 3 December 2014 the applicant replied by submitting a planning until the end of February 2015.

On 29 December 2014 the Legionowo District Court dismissed the application for interim order on contact arrangements. The domestic court considered that it was necessary to hear the parties and to obtain additional material on the applicant ’ s relationship with the daughter. On 15 January 2015 the applicant lodged an interlocutory appeal against that decision. The applicant did not inform the Court about the current state of these proceedings.

The hearing which was scheduled in the main case for 6 February 2015 was adjourned because the applicant asked for disqualification of the judges and lodged an interlocutory appeal.

It appears that on 5 May 2015 the Warsaw- Praga Regional Court dismissed the applicant ’ s motion to disqualify the judges. The applicant appealed and later, withdrew her interlocutory appeal. Consequently, on 13 July 2015 the Warsaw- Praga Regional Court discontinued these proceedings.

On 5 August 2015 the applicant applied for contact rights with her son and for an interim order in this matter.

The applicant submitted that no contact arrangements have been made by the family court. She visits the children at M.R. ’ s house every Sunday afternoon for two hours. The father interferes with the visits.

COMPLAINTS

The applicant complains , invoking Articles 6 and 8 of the Convention, that the authorities had failed to take the necessary measures to secure respect for her family life.

In particular, she submitted that (1) the authorities had failed to expeditiously examine her application to assign her children ’ s residence to her; (2) the court ’ s decision of 27 August 2014 to have the children move to their father ’ s was unjustified and contrary to their best interests; and that (3) the applicant ’ s contacts with her children have not been secured.

Moreover, the applicant complains that (4) the domestic courts have not been diligent in that (a) the impugned 2014 ruling was based on the outdated RODK experts ’ report; (b) the proceedings for revision of the 2014 decision are currently pending before the judge whose original first-instance decision which was favourable to the applicant was eventually overruled; (c) the judge who is the head of the family department in the Legionowo District Court has assigned the Judge Rapporteur to the case despite the fact that she had earlier withdrawn from the case on the ground that she knew the children ’ s father; (d) the court decisions and submissions of the opposing party in the main proceedings were either not served on the applicant or served with a delay, which made the preparation of her case difficult.

QUESTION TO THE PARTIES

Has there been a failure by the State to comply with its positive obligations to protect the applicant ’ s right to respect for her family life under Article 8 of the Convention? Reference is made to the following aspects of the application:

- the course and the length of the proceedings for determination of the children ’ s residence, which lasted from 2 November 2010 to 27 August 2014;

- the course and the length of the proceedings for revision of the decision of 27 August 2014, which have been pending since 2 September 2014 before the Legionowo District Court;

- the course and the length of the proceedings for contact rights, which have been pending since November 2014; and

- the allegation that the decision of the Warsaw Regional Court of 27 August 2014 was unjustified and contrary to the best interest of the applicant ’ s children.