(European Court of Human Rights, 21 July 2015)
The judicially approved judgment and accompanying headnote has now published in Family Law Reports  2 FLR 848
Abduction – Hague Convention proceedings in Poland – Return order refused – Whether there had been a breach of Art 8, European Convention
Please see attached file below for the full judgment.
The European Court of Human Rights found that there had been a breach of Art 8 of the European Convention in respect of the Polish court’s refusal of the father’s return order application.
The Polish mother and father had two children born in 1998 and 2002. The family moved to Switzerland due to the father's employment there. The relationship broke down when the father had an affair but the parents lived opposite each other and the father had regular contact with the children.
The mother filed for divorce in Poland and sought interim custody of the children. She took the children to Poland for the school holidays and promised to return thereafter but failed to do so. The mother was granted interim custody. The father applied for a return order under the Hague Convention and appealed the interim custody decision.
The father's appeal was dismissed. A final decision was made awarding custody to the mother and providing for contact with the father. His appeal was dismissed.
In the Hague Convention proceedings the father's application was dismissed. The court found that the mother had removed the children from Switzerland with the father's consent and that by the time she had missed the return date she had been awarded temporary custody by the Polish court. Therefore, there had been no wrongful retention. The father's appeal was refused. The father now applied to the European Court of Human Rights alleging a breach of Art 8 of the European Convention.
The positive obligations on Member States imposed by Art 8 included the right for parents to have access to measures which would enable them to be reunited with the children and an obligation on national authorities to take such an action. In the area of international child abduction the obligations under Art 8 had to be interpreted in light of the requirements of the Hague Convention and the UN Convention on the Rights of the Child.
In this instance, the court held by four votes to three that there had been a violation of Art 8. In finding that the mother had not wrongfully retained the children in Poland the court had failed to take into account the law of the State where the children had been habitually resident which would have afforded the father protection. Furthermore, when the mother applied for interim custody her application was allowed without the father being notified depriving him of the opportunity to be heard on the matter. As that decision was heavily relied upon in the Hague Convention proceedings the lack of procedural safeguard had an incidence on the outcome of the return proceedings.
CASE OF R.S. v. POLAND
(Application no. 63777/09)
21 July 2015
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
R.S. v. Poland
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Guido Raimondi, President
Päivi Hirvelä, George Nicolaou, Nona Tsotsoria, Krzysztof Wojtyczek, Faris Vehabović, Yonko Grozev, judges
Françoise Elens-Passos, Section Registrar
Having deliberated in private on 30 June 2015
Delivers the following judgment, which was adopted on that date:
RS v Poland (Application No. 63777/09)