Published on 2 January 2023

FIRST SECTION

Application no. 6771/16 Jarosław PODSIADŁO against Poland lodged on 28 January 2016 communicated on 8 December 2022

SUBJECT MATTER OF THE CASE

The application concerns the applicant’s rights to exercise parental authority and ensure his daughter’s education in conformity with his own religious and philosophical convictions as well as the length of proceedings in this matter.

The applicant and his former wife have a daughter (J., born in 2004). The couple divorced in 2012. Both parents kept parental authority and the child’s residence was established with the mother.

During the divorce proceedings the parents agreed in writing inter alia that: (i) they would cooperate and agree on the most important elements of their daughter’s upbringing (to this end, they were to inform each other, by telephone or in writing, about the intention to take any changes in the child’s education); (ii) the applicant would pay PLN 5,000 (ca. EUR 1,130) in monthly child support, notably to cover the costs of the child’s private school.

Until the end of the divorce proceedings J. attended a private, non ‑ denominational primary school near the original family residence. After the divorce the mother and J. moved to a different part of the city. Without informing the applicant, the mother enrolled J. in a private catholic school near her new residence starting from the school year 2012/2013. The applicant only learned about it on 1 September 2012 (first day of the school year).

On 7 September 2012 the applicant requested that the Warsaw-Mokotów District Court deliver a decision on important issues regarding the child, i.e. that J. be transferred to her previous primary school. The request was refused on 4 July 2013. Following the applicant’s appeal, the Warsaw Regional Court quashed, on 25 November 2013, the first instance decision and remitted the case for review. The proceedings ended on 28 July 2015 when the Warsaw Regional Court dismissed the applicant’s appeal against the first instance decision of the Warsaw-Mokotów District Court of 15 December 2014.

The courts ultimately found that the mother’s actions had been in breach of law as well as the parents’ agreement and that they had infringed the applicant’s rights to exercise parental authority and to ensure his child’s upbringing in conformity with his own religious and philosophical convictions.

Nevertheless, despite these findings, the courts concluded that - for the sake of stabilisation, comfort, and well-being - J. should remain in her new school, notably due to the passage of time (the Warsaw-Mokotów District Court explicitly stated that its assessment of the case would have been different at the beginning of the school year 2012/2013).

The applicant complains, under Article 8 of the Convention as well as, in essence, under Article 2 of Protocol no. 1 to the Convention, that the lack of expedition in the domestic proceedings violated his right to family life, notably the right to exercise parental authority and his right to ensure his daughter’s education in conformity with his own religious and philosophical convictions.

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 his family life under Article 8 of the Convention and the right to ensure his daughter’s education in conformity with his own religious and philosophical convictions under Article 2 of Protocol no. 1 to the Convention (see mutatis mutandis: T.C. v. Italy , no. 54032/18, §§ 56-57, 19 May 2022; Ribić v. Croatia , no. 27148/12, § 92, 2 April 2015; Enver Şahin v. Turkey , no. 23065/12, § 58, 30 January 2018; C.P. v. the United Kingdom (dec.) , no. 300/11, §47, 6 September 2016)? Reference is made to the overall length of proceedings regarding the applicant’s request for a decision on the important issues regarding the child.