(European Court of Human Rights, 19 July 2016)
Abduction – Hague Convention – Art 8, European Convention – Finding of wrongful retention – Failure to make return order – Delay
The European Court of Human Rights found that there had been a breach of Art 8 of the European Convention.
The father, a Canadian/Polish national, and the Polish mother were married in Canada where their son was born. In April 2011 the family went to Poland for a holiday and, while there, the parents' relationship broke down. The mother refused to return with the child.
When the father returned to Canada he initiated Hague Convention, divorce and contact proceedings. The Polish court received an expert report which concluded that separation of the child from the mother would not be in his best interests. At first instance the court held that the child had been wrongfully retained by the mother in Poland, but that returning him to the father in Canada would be traumatic for him. The Hague Convention proceedings were dismissed. The father's appeal was refused.
The Canadian court held that the mother's retention of the child was wrongful and awarded the father custody of the child on an interim basis. The mother was ordered to surrender the child and a wanted notice was issued for Interpol for the offence of kidnapping. The interim decision subsequently confirmed and the court request the assistance of the Polish court in securing the child's return.
One moth later, the Polish court gave judgment on contact and residence establishing the child's residence with the mother on an interim basis.
The father alleged that the refusal of the Polish court to apply the Hague Convention and to order the child's return to Canada constituted a breach of Art 8 of the European Convention.
The European Court of Human Rights held by six votes to one that there had been a breach of Art 8 and awarded the father €23,446 in respect of non-pecuniary damages and expenses.
The Polish court was under a positive obligation to secure the father's right to respect for his family life, which included taking measures under the Hague Convention to ensure a prompt reunification with the child. The Polish court had in this instance lacked the context of proceedings under the Hague Convention. Further, the delay in the proceedings did not meet the urgency of the situation and did not comply with the positive obligation to act expeditiously in proceedings for a return order.
CASE OF G.N. v. POLAND
(Application no. 2171/14)
19 July 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 G.N. 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 Motoc, Gabriele Kucsko-Stadlmayer, judges, and Andrea Tamietti, Deputy Section Registrar,
Having deliberated in private on 21 June 2016,
Delivers the following