A Polish man living in the UK has been awarded €15,145 (£11,767.66) by the European Court of Human Rights after Poland failed to secure the return of his daughter.
In KJ v Poland, a married couple, both Polish nationals, both moved to the UK in 2005. Five years later their daughter was born in this country. Then in 2012, the mother and child travelled back to Poland for an apparent holiday, and the father consented to this. Unfortunately they did not return and nearly two months later, in September 2012, she finally told him that she had no intention of coming back.
Shortly afterwards, the father, who lives in Kent, launched proceedings for the return of his child under the Hague Convention on the Civil Aspects of International Child Abduction. The mother told the local court in Poland that:
“…she and her husband had become distant from each other; the applicant had lost interest in his family and had been spending his spare time playing computer games. For those reasons, and also out of fear that the child would never again be allowed to leave the United Kingdom, [the mother] did not agree to her daughter’s returning to the United Kingdom alone and informed the domestic court that she did not wish to go back there with the child.”
The family courts in Poland noted that the mother had always been the child’s main caregiver, and that she had adapted well to her new life in the country. She could already speak Polish.
Given the mother’s refusal to return, psychologists concluded that separating her from her mother “would cause more emotional harm to the child than the lack of daily contact with her father.”
“Considering the [young] age and the sex of the child, it must be stated that the mother is currently best suited to satisfy her daughter’s needs.”
Article 13 of the Hague Convention gives the courts in signatory nations the authority to refuse a return if that would “expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”
The father’s application was therefore dismissed, as was a subsequent appeal. He then launched divorce proceedings in the Polish courts, as well as an application for ‘contact’ – the right to see his child. The latter were suspended until the divorce had been completed, but the English courts were declared the appropriate venue for the latter, as the couple had last together in this country.
However, as the case continued, the father was awarded fortnightly contact rights, along with additional time during the school holidays, despite the fact that the couple’s divorce remains ongoing. In the meantime, the father made a separate application to the European Court of Human Rights (ECHR). He argued that that the Polish courts had breached his right to ‘respect for private and family life’, as defined by Article 8 of the European Convention on Human Rights, when they threw out his Hague Convention application.
The ECHR concluded that his case was a valid one and ruled in his favour. The Polish courts had dismissed his application on the grounds that the child could not be made to return to the UK alone. The mother stated that she did not wish to go back to the UK because her marriage had failed and she was worried her daughter would not be able to travel with her back to Poland again. But neither concern qualified as a valid defence under Article 13 of the Convention, the ECHR declared. In addition, the Polish courts had been too slow in their approach to the application.
However, by that point, mother and daughter had been living in Poland for more than three years, so there was no longer any basis on which to order a return. But the father should receive monetary compensation, the Court declared.
The ruling can be read here.