Information Note on the Court’s case-law 187

July 2015

R.S. v. Poland - 63777/09

Judgment 21.7.2015 [Section IV]

Article 8

Positive obligations

Article 8-1

Respect for family life

Failure to consider father’s parental rights in child abduction case: violation

Facts – The applicant and his wife, both Polish nationals, lived in Switzerland with their two children. The couple later separated and the applicant ag reed that his wife could take the children on a two-week holiday to Poland in October 2008. However, before leaving, she filed for divorce in the Polish courts. When she and the children arrived in Poland, the Polish court granted her request for interim c ustody without informing the applicant. She therefore remained with the children in Poland, where she obtained a divorce and was granted full parental authority in July 2012.

Meanwhile, on 24 October 2008 the applicant lodged a request for the return of th e children with the Swiss Central Authorities under the Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”). The request was transmitted to t he competent Polish authority. The Polish District Court refused the request in February 2009 after finding that the children had not been wrongfully retained since the applicant had agreed to their trip to Poland and an interim custody order had since bee n granted. Although the Swiss Central Authorities argued that the children’s retention had constituted “wrongful removal” within the meaning of Article 3 of the Hague Convention as the Swiss authorities had not been made aware of any limitations on the app licant’s custody rights, the Polish Regional Court upheld the decision of the District Court in June 2009.

Law – Article 8: Given that the primary interference with the applicant’s right to respect for his family life could not be attributed to an act or o mission by the respondent State but rather to the actions of the mother, a private party, the Court had to determine whether the respondent State had complied with any positive obligation it may have been under. The Court noted that in the area of internat ional child abduction, the obligations imposed on the Contracting States by Article 8 of the Convention had to be interpreted in the light, inter alia , of the Hague Convention. The Court accepted that the children’s removal from Switzerland, to which the a pplicant had consented, had not been wrongful in itself. However, unlike the domestic courts, it found that their subsequent retention in Poland after the two-week holiday had expired had been wrongful in the absence of consent by the applicant.

The specif ic sequence of events in the present case, with the interim custody order of the Polish courts intervening after the children had left Switzerland, had resulted in the Polish courts dealing with the applicant’s request for their return on the basis that th eir retention in Poland was lawful, regardless of the fact that, as the Polish courts were aware, the applicant had never agreed to the children’s permanent stay there. Under the terms of the Hague Convention, the wrongfulness of the removal and retention derived from actions interfering with the normal exercise of parental rights under the law of the State where the children previously had their habitual residence (in this case, Switzerland), not under the law of the requested State (Poland). Yet, the Poli sh courts had ignored Swiss law and instead relied on Polish law. Consequently, as a result of the mother’s unilateral act, the applicant was deprived of the protection he could otherwise reasonably have expected to enjoy. The provisions of the applicable law were in the present case applied in such a way as to render meaningless the applicant’s lack of consent for the children’s permanent stay in Poland and the applicant had had no opportunity to be heard on the matter of the interim custody order, which h is wife had lodged before leaving Switzerland. Moreover, the applicant’s legitimate interests were not taken into account adequately or fairly and his reunification with the children was not implemented swiftly. Instead of the maximum of six weeks laid dow n by Article 11 of the Hague Convention, six months elapsed between the request for return and the final decision, a period for which the Government had not provided a satisfactory explanation. Lastly, the respondent State had not argued that a return to S witzerland would not have served the best interests of the children. In sum, it had not secured the applicant’s right to respect for his family life.

Conclusion : violation (four votes to three).

Article 41: EUR 7,800 in respect of non-pecuniary damage; EUR 3,700 in respect of pecuniary damage.

(See also X v. Latvia [GC], 27853/09, 26 November 2013, Information Note 168 ; see also the Factsheet on International child abductions )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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