Published on 30 May 2022

FIRST SECTION

Application no. 80683/17 M.H. against Poland lodged on 23 November 2017 communicated on 10 May 2022

SUBJECT MATTER OF THE CASE

The application concerns the length and the outcome of proceedings under the Hague Convention instituted by the applicant, an Iranian national, to seek the return of his son, O.H., a minor who had been wrongfully abducted from Sweden to Poland by the child’s Polish mother, P.G.

After O.H.’s birth in 2010 the applicant and P.G., who were in an “on ‑ and ‑ off” relationship, often moved between Poland and Sweden. On 12 July 2013 the Szczecin-Centrum District Court ( SÄ…d Rejonowy ) limited the applicant’s parental authority to decisions about the important aspects of O.H.’s future. In March 2014 the applicant, P.G. and O.H. returned to Sweden. The couple lived together.

On 26 May 2015 P.G. travelled with O.H. to Poland without the applicant’s consent.

On 15 July 2015 the Södertörn District Court found that O.H. had been wrongfully abducted by his mother and fined P.G. for that act. While the Hague Convention proceedings were ongoing in Poland, on 18 December 2015 the same court granted exclusive custody rights over O.H. to the applicant.

On 13 August 2015 the applicant filed a Hague Convention request to have his son returned to Sweden. This request was registered with the Szczecin ‑ Centrum District Court on 12 October 2015.

It appears that P.G. opposed the applicant’s request, arguing that her conduct was not wrongful. She also submitted that the applicant was violent and that O.H.’s relocation to Sweden would be traumatic for him. The applicant replied that those submissions were ill-founded.

On 10 February 2017 the Szczecin-Centrum District Court dismissed the applicant’s request.

The applicant appealed against that decision, arguing that the court had erred in assessing the evidence and in holding that the child should not be returned to Sweden.

On 6 September 2017 the Szczecin Regional Court ( Sąd Okręgowy ) dismissed the applicant’s appeal against the above decision.

The appellate court found that the abduction had been wrongful and that a return order would expose the child to the risk of “psychological harm” and an “intolerable situation” within the meaning of Article 13 (b) of the Hague Convention. The court relied on a report (dated 20 July 2016) that had been drawn up for the purpose of the first-instance proceedings by expert psychologists from the Szczecin Advisory Panel of Court Experts ( Opiniodawczy Zespół Sądowych Specjalistów ). The experts concluded that returning the child to his father’s custody would place the boy at risk of psychological harm and an intolerable situation. Firstly, O.H.’s mother, as his primary carer, was the guarantor of the child’s stability. Secondly, the child, influenced by his mother, perceived the applicant as a threat to his safety. Thirdly, O.H. had adapted to his new environment; he did not speak Swedish and did not want to leave Poland. The court also found it significant that, during the psychological examination, the child had become very agitated and withdrawn when he had left his mother. Moreover, the child had told the experts that he remembered his father beating his mother. The court thus found that the applicant had been violent and manipulative towards his partner.

In the course of the impugned proceedings the courts held nine hearings, including seven hearings at first instance, during which they heard submissions of the parties, the expert psychologists and witnesses, including P.G.’s parents and the applicant’s former partner. The appellate court also heard the child.

In addition, the courts examined the documents produced in the course of the proceedings and submitted by the parties which included, inter alia : the above-mentioned expert report of 20 July 2016; decisions issued by the Polish and Swedish authorities in the course of previous legal proceedings concerning the family situation of the applicant, P.G. and O.H.; a written report on O.H. issued by his Polish school; and photos submitted by the parties.

On 27 October 2017 the Szczecin Court of Appeal ( Sąd Apelacyjny ) dismissed the applicant’s complaint concerning the excessive length of the proceedings. It held that the specific circumstances of the case had required special diligence on the part of the courts which had dealt with the complex subject matter of the case. The courts had also examined procedural applications submitted by the parties, for example those for evidence and the applicant’s request for the exclusion of a judge, which had led to the suspension of the examination of the matter between February and April 2016.

The applicant complains in essence of the unfavourable outcome and excessive length of the Hague Convention proceedings. He invokes Article 6 of the 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?

2. In particular:

(a) Is the interpretation of the notions of “psychological harm” and “intolerable situation” within the meaning of Article 13 (b) of the Hague Convention as it was applied by the domestic courts in the case at hand compatible with the procedural requirements of Article 8 of the Convention?

(b) Is the dismissal of the applicant’s Hague Convention request compatible with the procedural requirements of Article 8 of the Convention, in so far as the impugned Hague Convention proceedings lasted over 2 years?