FOURTH SECTION

Application no. 63777/09 R . S . against Poland lodged on 1 December 2009

STATEMENT OF FACTS

The applicant, Mr R . S . , is a Polish national, who was born in 1969 and lives in Zurich. He is represented before the Cour t by Mr T. Świerczyński , a lawyer practising in Kraków .

A. The circumstances of the case

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

The applicant married M.S in 1994. They subsequently moved to Switzerland. In 1998 their son P was born and in 2002 their daughter J.

In spring 2008 the applicant and M.S decided to separate and he moved to another flat. However, the applicant kept regular contacts with his children.

On 24 September 2008 M.S filed a petition for divorce with the Kraków Regional Court.

On 4 October 2008 M.S. took the children for a short holiday in Poland. She promised to return on 20 October 2008. The applicant was informed about the trip and consented to the travelling dates.

On 9 October 2008 M.S. applied to the Kraków Regional Court for an interim order granting her temporary custody over P and J for the duration of the divorce proceedings. On 15 October 2008 the court granted her request. The applicant ’ s appeal against this decision was dismissed by the Kraków Court of Appeal on 26 February 2009. The court stressed that the interim order was granted only during the divorce proceedings and had no bearing on the outcome of the proceedings concerning abduction.

On 24 October 2008 the applicant lodged with the Swiss Central Authority a request concerning the return of the children to Switzerland under the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”). It was transmitted to the Kraków Regional Court on 25 November 2008.

On 11 December 2008 the Kraków Regional Court stayed the proceedings concerning the interim custody order.

On 11 February 2009 the Kraków District Court referring to the applicant ’ s and M.S. ’ s consistent testimonies and the information included in the divorce file refused to grant the request for the children ’ s return to Switzerland, finding that the applicant had consented to the removal and retention of P and J, thus removing any wrongfulness from M.S. ’ s conduct for the purposes of Article 3, sub ‑ paragraph (a), of the Hague Convention. With reference to the fact that M.S failed to return on 20 October 2008 (the date agreed with the applicant) the court noted that on 15 October 2008 the Regional Court had granted her temporary custody over her children for the duration of the divorce proceedings. When the interim order was delivered, that is between 4 and 20 October 2008, the children remained in Poland with their father ’ s consent. Lastly, the court considered that the interim custody order of 15 October 2008 was not contrary to Article 16 of the Hague Convention, since the applicant ’ s request for return of his children had been received by the Regional Court on 25 November 2008.

The applicant appealed.

On 2 June 2009 the Kraków Regional Court dismissed the applicant ’ s appeal. The court generally referred to the information obtained in the divorce proceedings, which at that time h ad not yet been terminated. The Regional Court referred in particular to the events leading to the breakdown of the applicant ’ s marriage. The court noted that the applicant moved out of their marital home after M.S. discovered that he had been having an affair. Subsequently, when M.S. learned that the applicant ’ s new partner was pregnant she decided to file for a divorce. As the applicant did not agree to a divorce in Switzerland, she filed the petition in Poland together with the request for temporary custody. The court stressed that only when M.S. was granted temporary custody she decided to stay in Poland. Consequently, in the court ’ s opinion th e removal of children was not a wrongful removal within the meaning of Article 3 of the Hague Convention. That decision was served on the applicant on 28 July 2009. The decision is final.

B. Relevant law and practice

1. Relevant International Law

The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“The Hague Convention”) was published in the Polish Official Journal on 25 September 1995. It provides, in so far as relevant:

Article 3

The removal or the retention of a child is to be considered wrongful where -

a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

Article 12

Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.

Article 14

In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognised or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.

Article 15

The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination.

Article 19

A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.

2. Relevant Domestic Law

The 1964 Code of Civil Proceedings ( Kodeks Postępowania Cywilnego ) in Article 577 provides as follows:

“The custody court can change its decision if the best interests of the person it concerns so require.”

COMPLAINTS

1. The applicant complains under Article 6 of the Convention that the statements made by his wife during the divorce proceedings were used by the Kraków Regional Court to refuse a return order under the Hague Convention and that he was not given the opportunity to challenge them.

2. The applicant further complains without invoking any provisions of the Convention, that there was a breach of his right to respect for family life, in that the domestic courts failed to apply the Hague Convention criteria when deciding on his request for a return order.

QUESTION TO THE PARTIES

Has the Respondent State complied with its positive obligation to ensure respect for the applicant ’ s right to respect for his family life, in accordance with Article 8 of the Convention (see, for example, Carlson v. Switzerland , no. 49492/06, 6 November 2008; Raban v. Romania , no. 25437/08 , 26 October 2010 )?