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Polish authorities did not fail to enforce father’s contact rights

Although it is certainly nothing new, we seem to be going through a spate of European Court of Human Rights (ECHR) cases in which parents claim that the failure of the authorities to enforce children orders amounts to a breach of their right to respect for family life under Article 8 of the European Convention on Human Rights. For example in June last year I wrote about a case in which a father succeeded with a claim that the Polish authorities had breached Article 8 by failing to take effective steps to enforce his right to have contact with his daughter, and last September I wrote about a case in which a mother failed to prove that her right to family life had been breached by the failure of the Serbian authorities to enforce custody and access orders.

The latest example of this trend is the case Wdowiak v Poland. This concerned the issue of a father’s contact with his son. The facts were that the boy was born in December 2002. The parents separated in the following year and in 2005 the father made an application for contact. There then followed a fairly complex history of litigation between the parents, and proceedings are still pending. I will describe briefly some of the details in a moment, but for now suffice it to say that the proceedings did not succeed in securing a lasting relationship between the father and the son, and there has been no contact between them since November 2013.

The father blamed the situation upon the Polish authorities, who he claimed had breached his Article 8 rights by failing to take effective steps to enforce his right to have contact with his son.

The ECHR set out the responsibility of the state in these cases as follows:

“The obligation of the national authorities to take measures to facilitate contact by a non-custodial parent with children after divorce is not … absolute. The key consideration is whether those authorities have taken all necessary steps to facilitate contact such as can reasonably be demanded in the special circumstances of each case”

So, had the Polish authorities taken all reasonable steps here? The ECHR went through the actions of the authorities in chronological order:

  1. The courts reacted to the father’s original application and in December 2005 accepted an agreement between the parties detailing when the father was able to see his son. In 2006 meetings between the father and his son took place, albeit with minor disruptions.
  2. From January 2007 the father was deprived of any contact with his son for a year, as the child had been taken by his mother to Germany, not returning until January 2008. Accordingly, the situation in 2007 was not attributable to the Polish authorities.
  3. Because the father’s contact had been obstructed by the mother at the beginning of 2008, the domestic courts secured a further contact agreement between the parents, in April 2008. They also ordered that if the mother failed to allow the father to meet his son on 5 April 2008 she would be liable to pay a fine. The settlement, which was amended on 29 September 2009, provided the father with contact, and for almost four years he made no complaints about visits not taking place.
  4. In February 2012 the father reported that a conflict had arisen between him and his son, and that regular visits had stopped. At the same time the mother informed the authorities that the boy no longer wished to see his father. Both parties asked the court to modify the contact arrangements. The court, after seeking the opinion of experts, modified the contact arrangements, first on 19 February and then on 27 June 2013. The boy was to see his father in public places only and in the presence of his mother and a guardian. In 2014 and 2015 further mediation and family counselling was ordered by the courts.
  5. On 19 February 2013 the court allowed the father’s request to threaten the mother with a penalty payment to the father each time a visit did not take place. However, no penalty was ever paid by the mother, apparently as the father stopped trying to see his son in November 2013, owing to their conflict, and he never applied to enforce that decision.

In the circumstances the ECHR found that the difficulties in enforcing the contact arrangements were not due to any failure on the part of the authorities, but rather were largely due to the mother’s reluctance to allow contact, and the child’s open hostility towards his father and his refusal to see him. The national authorities took all the steps necessary and which could reasonably be required of them in order to enforce the father’s right to have contact with his son, and accordingly there had been no violation of Article 8.

The full report of Wdowiak v Poland can be found here.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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  1. JKG says:

    This is not jut a case of merciless milk taking; that mother takes the biscuit and she does so by taking it to all new level; her conspicuous contempt to the law(Polish family court in this case) is disparaging. she makes countries who constantly violate UN resolution look like paupers..
    National authorities of EU countries all operate under the same principles. They would do very little in cases like this… always pass the bucket.It has nothing to do with them when it is clear as day that the mother was doing what she was doing because she knew she could get away with it. She was forced to go back to Poland because German is not her country. I suspect if both parent were living in Germany or the UK and she had gone back to Poland with Child, it would have almost be impossible to return the child to the UK or Germany.
    Just another clear cut case of parental alienation under the eyes of the national authorities of Poland in broad day light. I am sure if the father would got away with it as much as this mother did; it would have taken very little for the father to be crucified if it had been him doing what the mother has done to the child. She abused the poor child and then turns around after all the disruptions she orchestrated and later claimed the child does not want to see his father. how appropriate. As a father you obviously wouldn’t want to upset the child any further…. you have no other choice than to stop pushing for more contacts; things would only get worse. But in so doing you end up being labelled giving up on him/them and accused of not doing enough. The so called best interests of the child was being sacrificed by the mother before everyone’s own eyes and nothing substantial was done to remedy the problem( the mother in the case). That would clearly be a template for others.

  2. James says:

    I have and am still going through the same problem but I have four children but in my case the children said to a court appointed phycologist that they did want to see me and that the mother could not prevent the damage or even understand the damage she was causing to the children, yet they still reduced my contact from 9 days in a row to the last 3 weekends at the mothers request.
    the court in my opinion ignored the previous cases and all the lies and bizarre accusations on the very next weekend after the court gave the mother everything she wanted she stopped contact with 3 children and lets me see the 5 year old.
    I have absolutely no doubt the court will not hold the mother accountable as it is indeed the courts that are actively helping the mothers continue this behaviour by doing nothing about it and the mothers know this is the process, to ignore the clear mental problems of the mother in my case is the clearest indication that Poland can not protect the children from harm.

    in my case a school phycologist was used as a witness, she gave evidence as the mothers friends and family, this being I could not speak polish therefore I could not take the children to school or teach them
    my apartment was too far when in fact it was 15 minutes walking distance from the school.
    the shocking racist views were naturally upsetting but this is nothing when you find out the mother had our son lie to a psychiatrist so she could get benefits from Poland claiming he was autistic but she then had a judge enforce the drugs because I was going to have our son seen by another psychiatrist who stated that the antipsychotics and antidepressants should have never been prescribed and again the same school phycologist was giving evidence but this time her evidence again was the second instance she had seen nothing to indicate my son had autism but gave witness to him being aggressive based on him pushing someone once in the school playground.

    Poland in my opinion has a lot to answer for and unless the EU and the UK start pushing Poland to act in a rational way in the courts they will and do continue to abuse children in every way.

    I believe parental alienation eu will be giving advice and training in Poland in October 2022 and I hope the government of Poland takes action and puts into law the parental alienation laws as soon as possible, it is a crime that children in Poland whether a foreign father or mother is involved or not have been subjected to this abuse by the polish courts, the courts can hide behind there use of powers but all judges know perfictley well the harm they are causing as they are the ultimate witness to this abuse and the propagator, shame on the courts in Poland who are and will be on the wrong side of history in this matter.

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