FIRST SECTION

DECISION

Application no. 46855/20 Norbert TOMKIEWICZ against Poland

The European Court of Human Rights (First Section), sitting on 5 September 2023 as a Committee composed of:

Ivana Jelić , President , Krzysztof Wojtyczek, Erik Wennerström , judges , and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 46855/20) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 30 September 2020 by a Polish national, Mr Norbert Tomkiewicz, who was born in 1974 and lives in Rzeszów (“the applicant”);

the decision to give notice of the application to the Polish Government (“the Government”), represented by their Agent, Mr J. Sobczak of the Ministry of Foreign Affairs;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns enforcement of the applicant’s contact rights in with his son.

2. The applicant was married to M.P. and together they have a son, H., born in 2010. The couple separated when H. was 11 months old and, since then, they have been involved in multiple proceedings relating to the divorce, custody and contact arrangements. The parties submitted documents for only some of them. From their submissions and from the documents at the Court’s disposal the facts of the case may be summarised as follows.

3. In July 2013 the Katowice Regional Court ( Sąd Okręgowy ) issued a divorce judgment and dissolved the applicant’s marriage with M.P. Parental authority over H. was granted to M.P. and the applicant was granted regular contact with him.

4. In April 2014 the applicant and M.P. reached an agreement before the Tychy District Court as regards contact arrangements. Their settlement replaced contact arrangements determined in the divorce judgment.

5. In April 2014 the District Court, also issued a decision obliging the applicant and M.P. to undergo family therapy, together with H. The court did not find grounds to entrust parental authority to the applicant.

6. It appears that M.P. attended therapy sessions twice and then refused to continue.

7. Between 10 May and 5 July 2014 the applicant met his son on five occasions in the presence of a psychologist.

8 . On an unspecified date the applicant requested the court to alter the contact arrangement. The court held four hearings between September and December 2014 and ordered that regular contact, as agreed in the settlement of April 2014, take place without the presence of third parties, including M.P., but on the premises of the Crisis Intervention Facility in Tychy ( Ośrodek Interwencji Kryzysowej ). The court also issued an interim measure to ensure immediate implementation of the new contact arrangements.

9. Between 23 December 2014 and 24 February 2015 two meetings were cancelled because of M.P.’s conduct while two meetings with H. took place.

10. In May 2015 the applicant requested the court to be allowed, among other things, to meet H. outside the premises of the Crisis Intervention Facility. A court-appointed expert issued an opinion finding that H. had emotional ties with the applicant which allowed holding meetings without the presence of the mother and outside the premises of the Crisis Intervention Facility.

11 . In September 2015 the District Court granted the applicant’s request in part. The court found that M.P. had impeded contact between the applicant and his son and obliged M.P. to prepare H. for each visit. Again, the court issued an interim measure to ensure immediate implementation of the new contact arrangements.

12 . Meanwhile, on 3 April 2015 the applicant lodged another request to alter contact arrangements. He relied in particular on the fact that M.P. had obstructed the obligation to participate in family therapy. The District Court held two hearings and, on 24 June 2016, ordered the parties to continue therapy in accordance with the dates scheduled by the Katowice Mediation Centre.

13 . From the reasoning of the decisions of domestic courts it emerges that there were at least eight sets of enforcement proceedings pending against M.P. before the Tychy District Court. All these proceedings were instituted at the request of the applicant and resulted in the court fining M.P. various amounts ranging from 200 Polish Zlotys (PLN) to PLN 400 for each cancelled visit and the obligation to reimburse the applicant’s travelling expenses.

14. The District Court issued decisions on 10 March 2015, 12 August 2016, 18 December 2017, 11 April 2018, 13 June and 9 October 2019. By way of example, on 11 April 2018 M.P. was ordered to pay the applicant PLN 7,000 for thirty-five cancelled visits with H. and on 25 October 2018 she was ordered to pay PLN 4,800 for twenty ‑ four cancelled visits.

15. In June 2016 the applicant requested the court to limit M.P.’s parental authority. On 14 September 2016 the District Court dismissed the request and ordered the applicant and M.P. to continue family therapy. Six sessions took place between July and November 2016. At the last session the psychologist, A.G., informed the parties that the therapy would not be continued.

16. At the court’s request, A.G. stated that the therapy had been discontinued due to ongoing improper motivation of the participants, their expectations of the psychologist which could not be reconciled with her therapeutic role and their engagement in judicial procedures which interfered with the aims of the therapy.

17 . In the meantime, in September 2016 the applicant requested that he be granted parental authority and that M.P.’s parental authority be limited. Three hearings were held and the court also heard an expert psychiatrist.

18 . In September 2017 the District Court dismissed the applicant’s request. It found, among other things, that due to the long ‑ lasting conflict between M.P. and the applicant, relations between the applicant and his son had not developed properly. The mother’s attitude and the ineffectiveness of all actions undertaken by the courts and various institutions, including the ineffectiveness of the family therapy, led the court to conclude that the only solution that could secure the applicant’s contact with his son and proper development of their relationship would be granting parental authority to the father. The court considered, however, that such a solution would go against the interest of H. Furthermore, H. had declared that he wanted to stay with his mother.

19 . In April 2020 the District Court instituted ex officio proceedings in order to issue further decisions as regards H. In July 2020 the applicant requested the same court to issue decisions in order to force M.P. to respect contact arrangements.

20 . In the course of the proceedings the court heard expert psychiatrists and psychologists. A court guardian was also appointed but could not prepare a record about the family’s background ( wywiad środowiskowy ) because he had not been let into the apartment where H. lived with his mother. The court established that H. had very good living conditions and was properly cared for. However, M.P. had continuously diminished the applicant’s role as father and had consequently excluded him from the process of bringing up H.: she had overused her parental rights and had denied the applicant’s participation in his upbringing. Therefore, in its decision of 27 January 2021 the court limited her parental authority, appointed a guardian to supervise her actions and ordered her to undergo psychological therapy. The court further found that, as a consequence of M.P.’s behaviour, H. presented a negative attitude towards the applicant and had had no contact with him for several years, which was against the best interest of the child. The court also ordered the applicant and M.P. to resolve the dispute through mediation and to establish contact arrangements that could be accepted by all parties.

21. The applicant instituted civil proceedings against the State Treasury – the Tychy District Court – for payment of just satisfaction. He alleged that the District Court had violated his personal rights by failing to prevent the lack of contact with his son.

22. The Pszczyna District Court dismissed his claim and, on 23 May 2022, the Katowice Regional Court dismissed his appeal.

23 . The courts analysed the course of several dozen sets of proceedings instituted at the request of M.P. or the applicant as well as by the Tychy District Court ex officio . They found that M.P. and the applicant had remained in severe conflict for many years, which had led to deprivation of contact between the applicant and H. The court held, however, that the Tychy District Court could not be held responsible for that situation. It found that that court had reacted properly by instituting ex officio proceedings when the best interest of the child was in danger. Contrary to the applicant’s claims, the family court could not act ex officio when the contact arrangements were not respected, as such proceedings could only be instituted at the request of the interested party. Nevertheless, the proceedings aimed at imposing fines on M.P. instituted at the applicant’s request were conducted properly and without undue delay. As regards the applicant’s argument that M.P. should have been deprived of her parental authority earlier, the court referred to the decision of the District Court of September 2017 (see paragraph 18 above) which had analysed such a solution but found that, at that time, it would be against the best interest of the child.

24. The applicant complained under Article 8 of the Convention that for several years he had been prevented from seeing his child and that the domestic courts had refused to limit the parental authority of M.P. in due time.

THE COURT’S ASSESSMENT

25. The Government considered that the applicant had failed to exhaust all available domestic remedies in that he had not requested the assistance of a guardian on the basis of the Family and Guardianship Code to enforce his contact rights.

26. The applicant submitted that he had exhausted all remedies.

27. The Court considers that it is not necessary to examine the Government’s objection since the application is in any event inadmissible.

28. The relevant general principles concerning respect for family life, positive obligations of the State and the importance of the interests of a child in matters concerning child custody were summarised in the judgment in P.K. v. Poland (no. 43123/10, §§ 81-86, 10 June 2014).

29. It has not been disputed that the relationship between the applicant and his son amounted to “family life” within the meaning of Article 8 § 1 of the Convention.

30. What is decisive in the present case is whether the Polish authorities took all the necessary steps to facilitate the enforcement of the contact arrangements as specified in the divorce decree, and subsequently in the parents’ settlement and further decisions issued by the courts.

31. The difficulties in arranging contact were in large measure due to the animosity between the applicant and his former wife. The Court is mindful of the fact that child custody disputes by their very nature are extremely sensitive for all parties concerned, and it is not necessarily an easy task for the domestic authorities to ensure execution of a court judgment in such a dispute where one or both parents’ behaviour is far from constructive (see P.K. v. Poland , cited above, § 88). In the present case the conflict between the applicant and M.P., and M.P.’s continuous obstruction to any contact between the applicant and H., made it particularly difficult for the domestic authorities to act to enforce fully the applicant’s contact rights.

32. Nevertheless, the Court considers that, despite these difficulties, the District Court acted with diligence and reacted to the rapidly changing situation, both at the request of the applicant and ex officio .

33. Following the parents’ separation in 2011 and divorce judgment in 2013, which set out contact arrangements, already in April 2014 the District Court, acting ex officio , obliged H.’s parents to attend family therapy. In December 2014 the court modified contact arrangements partly in accordance with the applicant’s request, that is, without the presence of M.P. but on the premises of the Crisis Intervention Facility. In September 2016 another request of the applicant’s was granted: he was allowed to meet his son outside the premises of the Crisis Intervention Facility. Each time, when necessary, the court obtained opinions from expert psychologists and regulated contact by interim measures for the duration of the proceedings (see paragraphs 8 and 11 above). Hearings were held at regular intervals (see paragraphs 12 and 17 above). This was also indicated by the domestic courts which examined the applicant’s claim against the State Treasury (see paragraph 23 above).

34. Moreover, the applicant’s enforcement requests led to the repeated imposition of fines on M.P. and an obligation to reimburse travelling expenses (see paragraph 13 above).

35. As regards the applicant’s argument that the courts did not limit M.P.’s parental authority in due time the Court notes that, indeed, in 2017 the District Court refused to limit M.P.’s parental authority holding that it would go against the best interests of the child. This decision was based on an expert opinion and after hearing H., who declared that he wanted to stay with his mother (see paragraph 18 above). However, in its decision of January 2021, the District Court noted the difficulties which had arisen in the execution of the contact arrangements and, having regard thereto and acting ex officio , limited M.P.’s parental authority by assigning a guardian charged with supervising her in the exercise of her parental rights. It further ordered her to attend family therapy (see paragraph 20 above).

36. Taking into account all the above circumstances, the Court considers that, even though the applicant has indeed been prevented from seeing his son for a protracted period of time, this situation cannot be attributable to the State but rather to the obstruction by M.P. and the animosity between her and the applicant. The District Court was faced with the particularly difficult task of resolving issues of child custody in constantly changing circumstances of severe conflict between the child’s parents. Several dozen sets of proceedings were pending before that court, instituted at the request of M.P., the applicant or ex officio . Also, the efforts of other institutions such as family therapy centres proved ineffective for reasons attributable to the child’s parents.

37. To sum up, it cannot be said that the authorities were idle in the performance of their duties or their efforts to find solutions.

38. The Court cannot substitute itself for the domestic authorities in the exercise of their responsibilities as regards parental authority. Its function, rather, is to review under the Convention the decisions taken by those authorities in the exercise of their margin of appreciation (see Kaleta v. Poland , no. 11375/02 , § 58, 16 December 2008). In the instant case it cannot find that that margin was exceeded.

39. It follows that this application is manifestly ill ‑ founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 28 September 2023.

Liv Tigerstedt Ivana Jelić Deputy Registrar President