(European Court of Human Rights, 1 March 2016)
Abduction – Hague Convention 1980 – Art 8, European Convention – Dismissal of Hague proceedings – Whether the respondent state had failed in its positive obligations and violated Art 8 of the European Convention
The European Court of Human Rights unanimously held that there had been a violation of Art 8 of the European Convention.
The Polish couple moved to the UK in 2005 and their daughter was born here in 2010. They exercised parental responsibility jointly.
The mother and child went on holiday to Poland in 2012 and failed to return. The father applied for a return order under the Hague Convention. On the basis of Art 13(b) that a return of the child to the father's care would negatively affect her emotional state the application was refused by the Polish court. Importance was attached to the child's young age and the fact that the mother had always been the primary care giver. The father's appeal was dismissed.
The father subsequently issued divorce and contact proceedings. The latter were stayed pending the outcome of the divorce proceedings and the Polish court held that the English court was better placed to preside over those since the couple's last place of residence was in the UK. In 2014 the father was awarded fortnightly and holiday contact. Divorce proceedings remained ongoing.
The father applied to the European Court of Human Rights alleging a breach of Art 8 of the European Convention in the dismissal of the Hague Convention application.
The domestic courts had based their decisions of the mother remaining in Poland and, therefore, the child returning to the UK alone. The mother's objections to a return were due to the marriage breakup and her fear that the child would not be able to leave the UK. Both arguments fell far short of the criteria for an Art 13(b) objection to a return. Furthermore, the duration of the Hague Convention proceedings last a year did not meet the urgency of the situation and was not in compliance with the positive duty to act expeditiously.
The court found that the State had failed in its positive obligations under Art 8. However, given that the mother and child had been living in Poland for 3-and-a-half years there was no basis for the judgment to be interpreted as obliging the Respondent State to take steps to return the child to the UK. The father was awarded€15,145.
CASE OF K.J. v. POLAND
(Application no. 30813/14)
1 March 2016
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of
K.J. v. Poland
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:András Sajó, President,Nona Tsotsoria,Paulo Pinto de Albuquerque,Krzysztof Wojtyczek,Egidijus Kūris,Iulia Antoanella Motoc,Gabriele Kucsko-Stadlmayer, judges, and Fatoş Aracı, Deputy Section Registrar
Having deliberated in private on 9 February 2016
Delivers the following