CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 13 novembre 2003

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Pellonpää , President ,   Mrs   V. Strážnická ,   Mr   M. Fischbach ,   Mr   R. Maruste ,   Mr   S. Pavlovschi ,   Mr   L. Garlicki ,   Mr   J. Borrego Borrego, judges , and Mr M. O’Boyle, Section Registrar , Having regard to the above application lodged on 10 October 2000, Having deliberated, decides as follows:   THE FACTS The applicant, Mr   T.C., is a Polish national, who was born in 1953. The facts of the case, as submitted by the applicant, may be summarised as follows. A.     The circumstances of the case 1.     The birth of X On 2 April 1996 E.N., with whom the applicant cohabited, gave birth to X. The boy’s birth certificate did not list the applicant as a father. Shortly afterwards E.N. was legally incapacitated because of her mental illness. On 9 May 1996 X was placed in an orphanage. Between 9 May and 31 December 1996 the applicant visited X in the orphanage on the following dates: 20 May, 16 June, 21 July, 1   September, 16   October and 15   December. On 29 October 1996 the Oświęcim District Court informed the applicant that legal advice on paternity could be obtained from an advocate or prosecution service. On 16 June 1997 the Oświęcim District Prosecutor informed the applicant that he would not bring on his behalf an action for the recognition of his paternity. The prosecutor advised the applicant that he could file himself an action seeking the confirmation of his paternity. On 11 August 1997 the X’s mother was deprived of her parental responsibility for the boy. On an unspecified date in 1997 the Bielsko-Biała District Court appointed a guardian ( opiekun prawny ) for X. Between January and June 1998 X stayed in the Jaworz Hospital. During this period the applicant visited X on the following dates: 18 January,   1, 15   and 22   February, 8, 15, 22 and 29 March, 12, 19 and 26 April, 3, 10,   24 and 31   May. 2.     The beginning of the adoption and paternity proceedings On 22 May 1998 the Bielsko-Biała Adoption Centre submitted to the Bielsko-Biała District Court an application of M.N. and S.N. for the adoption of X. It appears that at that time X suffered from numerous health problems, including attachment disorder. On 25 May 1998 the Bielsko-Biała District Court made an interim residence order requiring X to reside with M.N. and S.N. On 2 June 1998 X was placed with M.N. and S.N. On 3 June 1998 the curator ( kurator sądowy) of X lodged with the Oświęcim District Court an action for determination of the applicant’s paternity. On 8 June 1998 the applicant informed the Bielsko-Biała District Court about the beginning of the paternity proceedings before the Oświęcim District Court. On 21 July 1998 the Director of the Bielsko-Biała Adoption Centre replied to the applicant’s complaint about placing X with M.N. and S.N. The reply read as follows: “In reply to your letter I should inform you that the Adoption Centre acts as an intermediary in the adoption when a child referred to us has a settled legal situation i.e. when biological parents are deprived of parental rights. Our institution does not participate in this procedure and therefore we do not have any influence on the final court judgment. I would like to assure you that in accordance with the law the child was placed with the prospective adopters, who had been earlier subjected to psychological and pedagogical examinations which qualified them for adopters. I can also assure you that that the child at last feels happy and secure in a loving and responsible family. He paid a high price with his health during two years in a Child Centre, where there is no love without which a secure and proper development of a child is impossible. During the whole two years, the child was waiting for parents, for his family, for his safe place. His development was impaired and occasional meetings with you disturbed his peace and sense of security. You have to understand that a child cannot wait for so long for its place in a family. It always has negative bearing on its development. There was a long time for fighting for him. Now it is too late. The child feels happy in a new loving family. At last, he has a sense of security and stability. I ask you to consider these arguments and think whether you are not disturbing his happiness, for which he has been waiting for so long. On the other hand, I would like to express my sincere compassion and understanding for your pain and sense of injustice. I cannot help you with this anymore.” On 23 July 1998 the applicant was interviewed by the judge in charge of the adoption case. 3.     The staying of the adoption proceedings On 23 July 1998 the Bielsko-Biała District Court stayed the adoption proceedings pending the outcome of the paternity proceedings. On 3 September 1998 E.K., a director of the orphanage, submitted to the Oświęcim District Court the request not to grant the applicant the parental rights in respect of X when the court determines his paternity. The request included the following statement: “[X], who was born on 2 April 1996, lived in the orphanage since he was one month old until May 1998. Since the beginning of the child’s presence in the centre I was telling the presumed father of the boy how important it was to settle his legal situation for the good of the child. On numerous occasions I encouraged Mr   T   (...) C (...) and his mother to take the boy as a foster family (until the settlement of the father’s legal situation) since it would be a better environment for the boy’s psychophysical development. Finally, Mr T (...) C (...) stated that he would take the boy when he grew up. During two years the legal situation of the presumed father was not clarified and he did not show interest in taking the child as a foster parent. (...) The presumed father and the grandparents during two years did not show any significant involvement in the boy’s affairs. It seems that the child’s presence in an orphanage was convenient for the presumed father. He did not react to my suggestions that the boy be taken in a foster family until the paternity was determined. On the basis of an analysis of the nature of the contacts of Mr T (...) C (...) with the child and his attitude to life, one can assume that the presumed father will not cope with all the pedagogical and health problems which may appear in the future development of the boy.” The applicant submitted that the above statement was not true. 4.     The first-instance decision determining paternity On 11 September 1998 the Oświęcim District Court ruled that the applicant was the boy’s father. It also granted the applicant parental responsibility for X but limited his rights by appointing a curator to supervise X’s upbringing. The court considered that the applicant had tried to obtain the recognition of his paternity since the birth of X. Initially the applicant had intended to acknowledge his paternity in a statement made before the Registrar of Births ( Urząd Stanu Cywilnego ) but it had proved impossible in view of the attitude of X’s mother. Subsequently he had approached the prosecution service which had refused to bring on his behalf an action for the recognition of his paternity. In addition, the prosecutor had erroneously advised the applicant that he could file himself an action seeking the confirmation of his paternity. Furthermore, the court considered that the applicant’s visits in the orphanage were “in fact not very frequent but regular”. It concluded that granting the applicant’s parental responsibility “would be in the interest of the child and society”. On 16 September 1998 the Oświęcim District Court rejected a request filed by E.K., acting as a guardian of X, to serve her with a reasoned judgment since it considered that she had no standing in the case. However, this decision was subsequently quashed by the Bielsko-Biała Regional Court and E.K. was served with a reasoned judgment and therefore could appeal it. 5.     The first foster family application On 6 October 1998 M.N. and S.N. applied to the Bielsko-Biała District Court for an order designating them as a foster family of X. They pointed out that they had applied for the adoption of X and had obtained an interim residence order allowing the child to live with them. The boy settled in happily with a new family. However, the ruling on the applicant’s paternity created legal problems and prompted them to lodge an application in order to protect X’s security. On 30 November 1998 the President of the Bielsko-Biała District Court replied to the letter of 25 October 1998 in which the applicant’s representative raised complaints about the adoption proceedings. He explained that the applicant was not a party to the adoption proceedings. Furthermore, the President pointed out that the judge in charge of the case had met with the applicant and had asked him whether he had been willing to take care of X if the interim residence order had been quashed. However, the applicant had not shown willingness to take X. The applicant submitted that this statement was not true. On 4 December 1998 the Bielsko-Biała District Court stayed the proceedings concerning the foster family application pending the outcome of the adoption proceedings. On 10 December 1998 the applicant asked the Katowice Court of Appeal to initiate disciplinary proceedings against the judges of the Bielsko ‑ Biała District Court. On 11 December 1998 E.K., acting as a guardian of X, lodged with the Bielsko-Biała Regional Court an appeal against the judgment of 11   September 1998. She agreed with the determination of the applicant’s paternity but challenged the court’s decision to grant him parental responsibility for X. The applicant should not have been granted parental responsibility because he had applied for it only after the child had been placed with the prospective adopters. Moreover, while X was still in the orphanage the applicant had refused to take him as a foster parent either alone or together with his mother. X settled very well with M.N. and S.N. and considered them as his parents. The boy’s health improved since his placement in the new family. The applicant averred that the submissions made by E.K. in her appeal were not true and included “nasty insinuations and manipulation”. On 28 December 1998 the applicant wrote a letter to the President of the Bielsko-Biała District Court. The letter began with the following statement: “I do not agree with propositions in your letter of 30 November 1998 (...) sent to my representative (...). It is an expression of great hypocrisy to formulate nonsense like this: “that I did not show willingness to take immediate steps to take care of [X] in case the interim residence order is quashed”. This is clearly absurd because neither on 23 July 1993 nor now can I undertake such care unless the judge has in mind some extraordinary circumstances and orders which existed in this case. I expressed the wish (on 23 July 1998) that [X] returned to the orphanage (which in view of [X]’s illnesses presented by the prospective adopters could have been the best solution for him, especially as these illnesses (among others hernia) were probably caused by taking [X] to another unknown environment). I would like to underline that I expressed on numerous occasions (...) a wish to take care of [X] (...).” On 29 January 1999 the Bielsko-Biała Regional Court quashed the part of the Oświęcim District Court’s judgment of 11   September 1998 concerning parental responsibility for X. The case was remitted to the District Court. On 29 January 1999 the Bielsko-Biała Regional Prosecutor rejected the applicant’s request to prosecute E.K. and the judges of the Bielsko ‑ Biała District Court on charges of perjury and corruption. 6.     The granting of parental responsibility On 23 September 1999 the Oświęcim District Court, acting as a court of first instance in the paternity proceedings, gave judgment in which it granted the applicant parental responsibility for X but limited his rights by appointing a curator to supervise X’s upbringing. The court considered that the applicant had shown interest in taking care of X since his birth. However, his lack of confidence made him take only “hesitant steps” to obtain the custody of the boy. The court also pointed out that the applicant had denied that he had intended to take X only after he had become older. Moreover, it relied on expert evidence according to which the applicant understood the needs of the boy and accepted him. E.K. appealed this decision in her capacity of the guardian of X. On 24 November 1999 the Bielsko-Biała Regional Court dismissed the request of M.N. and S.N. that they be served with a copy of a reasoned judgment of 23 September 1999. At the same time, the court rejected their appeal against the Oświęcim District Court’s decision denying them standing in the paternity proceedings. On 20 January 2000 the Bielsko-Biała Regional Court dismissed the E.K.’s appeal against the District Court’s judgment of 23   September 1999. E.K. filed a cassation appeal with the Supreme Court. On 7 February 2000 the applicant was granted standing in the adoption proceedings. 7.     The final decision in the paternity proceedings and the resumption of the adoption proceedings On 8 June 2000 the Supreme Court dismissed a cassation appeal against the judgment of 20 January 2000 lodged by E.K. On an unspecified date in 2000 the Bielsko-Biała District Court resumed the adoption proceedings. 8.     The second foster family application On 28 June 2000 M.N. and S.N. lodged with the Warsaw District Court a foster family application. On 15 November 2000 M.N. and S.N. extended their foster family application by requesting the court to deprive the applicant of the parental responsibility for X. On 3 January 2001 the Warsaw District Court transmitted the case to the Oświęcim District Court. 9.     The first-instance judgment in the adoption proceedings In the meantime, on 14 December 2000 the Bielsko-Biała District Court gave judgment in which it dismissed an application for adoption lodged by M.N. and S.N. It also repealed an interim residence order of 25   May 1998. The court stated, inter alia , that: “During the paternity and adoption proceedings T(...) C(...) was refusing   to agree to the adoption of his son. In the court’s view, (...) one cannot find in the behaviour of T(...) C(...) an abuse of his rights even though the child has presently good conditions for his development. The motives of his behaviour did not contradict the well being of the child. The court considers that in refusing his agreement to the adoption T(...)   C(...) was guided by his feelings for his son. T(...) C(...), whose paternity was determined by a court, has strong feelings for his son (...) and finds separation from him hard to bear. It should also be noted that since the birth of his son T(...) C(...) has been trying to [obtain the custody] of his son. However, due to the circumstances – for the most of which he cannot be held responsible – and his personality, he has been unsuccessful[.   As a result,] an interim order was issued placing [X] with the prospective adopters.”    10.     The joinder of the foster family applications On 12 March 2001 the case concerning the first foster family application lodged on 6 October 1998 was joined to the case concerning the second foster family application pending before the Oświęcim District Court. On 18 April 2001 the Oświęcim District Court made an interim residence order requiring X to reside with M.N. and S.N. until the end of the proceedings concerning the foster family applications. It pointed out that they had been providing care to X for three years and that taking the boy by the applicant would be shocking for X. The applicant had never taken care of the boy and had not shown interest in his well being. Therefore, it was not certain whether the applicant would cope with the responsibilities of a parent and whether he fully understood the needs of his son. On 24 May 2001 the Bielsko-Biała Regional Court dismissed the applicant’s appeal against the order of 18 April 2001. On 3 August 2001 the Oświęcim District Court granted the applicant visiting rights. He was allowed to visit X twice a month. On 9 November 2001 the Oświęcim District Court asked for an expert opinion on the emotional relationships between X on one side and the applicant and M.N. and S.N. on the other side. The opinion was submitted to the court on 5 April 2002. On 12 June 2002 the Oświęcim District Court restricted the applicant’s parental responsibility for X by placing the boy in the foster family of M.N. and S.N. At the same time it dismissed their request that the applicant be deprived of his parental responsibility and repealed the order appointing a curator. The court noted that X had been living with M.N. and S.N for four years and during that time had made up for retardation in his development. However, the boy still required special care and the applicant was unable to provide it. The applicant’s misunderstanding of the reasons for which X was afraid of him and his mother showed that he knew very little about the behaviour of children. Moreover, the applicant had failed to notice obvious health problems of X while he had been living in an orphanage, such as attachment disorder and retardation in physical development. The court further agreed with the conclusions of an expert opinion that M.N. and S.N. qualified for providing care to X while the applicant did not show understanding of the needs of the boy and would be unable to provide him with normal family life. It also observed that the applicant’s commitment to taking X was in fact limited to writing numerous letters requesting the custody of the child. Since 3 August 2001, when the applicant had been granted visiting rights, he had visited X only once. The court was of the view that the removal of X from the custody of M.N. and S.N could cause irreversible damage to him. On 3 July 2002 the applicant filed with the Cracow Regional Court an appeal against the decision of 12 June 2002. On 19 November 2002 the Cracow Regional Court dismissed the applicant’s appeal. On 7 February 2003 the Bielsko-Biała Regional Court dismissed an appeal lodged by M.N. and S.N. against the judgment of 14   December 2000 rejecting their application for adoption. In a letter of 6 May 2003 the applicant informed the Court that in view of the fact that the decision of 12 June 2002 “was based on dishonest grounds” and “gave the [foster] family even bigger advantage” over the applicant, he decided to discontinue visiting his son as visits would “create even bigger danger” for X. B.     Relevant domestic law The custody and adoption of children is regulated by the Family Code   1964 ( Kodeks Rodzinny i Opiekuńczy ). COMPLAINTS The applicant complained under Article 6 of the Convention about the unfairness and unreasonable length of the paternity proceedings. He also complained under Article 6 that the Bielsko-Biała District Court made an interim residence order of 25 May 1998 without hearing him. Finally, the applicant complained under Article 8 that his son was placed with the prospective adopters. He averred that the placement resulted from the conspiracy between them and the director of the orphanage. Moreover, he was not given the custody of X after the Supreme Court’s decision of 8   June 2000 and the child remains with the foster parents. THE LAW 1.     The applicant complained about the unfairness and unreasonable length of the paternity proceedings. He invoked Article 6 of the Convention, which in so far as relevant, provides: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal...” The Court finds that the applicant’s assertion about the unfairness of the paternity proceedings is wholly unsubstantiated. With respect to the applicant’s assertion about the unreasonable length of the paternity proceedings, the Court notes that they began on 3 June 1998 and ended on 8   June 2000. Therefore, they lasted two years and five days. The proceedings involved three instances. In the particular circumstances of the instant case, the Court considers that the paternity proceedings do not disclose an unreasonable delay within the meaning of Article 6 § 1. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.   2.     The applicant further complained under Article 6 that the Bielsko-Biała District Court made an interim residence order of 25   May 1998 without hearing him. However, assuming that the applicant exhausted domestic remedies, the Court notes that this complaint was introduced out of time and must be rejected in accordance with Article   35 §§   1 and   4 of the Convention.   3.     Finally, the applicant complained under Article 8 that his son was placed with the family of M.N. and S.N. He averred that the placement resulted from the conspiracy between them and the director of the orphanage. Moreover, he was not given the custody of X after the Supreme Court’s decision of 8 June 2000 and the child remains with the foster parents. Article 8 of the Convention provides, in so far as relevant, as follows: “1.     Everyone has the right to respect for his (...) family life ... 2.     There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” The Court reiterates that the notion of the "family" in Article   8 is not confined solely to marriage-based relationships and may encompass other de facto "family" ties where the parties are living together outside of marriage. A child born out of such a relationship is ipso iure part of that "family" unit from the moment of his birth and by the very fact of it. There thus exists between the child and his parents a bond amounting to family life even if at the time of his or her birth the parents are no longer co-habiting or if their relationship has then ended (see Keegan v.   Ireland , judgment of 26 May 1994, Series   A   no.   290, pp. 17-18, §   44). It follows that from the moment of the X’s birth there existed between the applicant and his son a bond amounting to family life. The Court considers that the decision to place X with the prospective adopters constituted an interference with the applicant’s right to respect for his family life. For such an interference to be justified according to Article   8   §   2, it has to be shown to be “in accordance with the law”, to have an aim or aims that is or are legitimate under this paragraph and to be "necessary in a democratic society" for the aforesaid aim or aims (see, among other authorities, Eriksson v. Sweden , judgment of 22 June 1989, Series   A no.   156, p.   24, §   58). The Court is of the view that the impugned interference, which was based on the provisions of the Family Code 1964, was “in accordance with the law”. Furthermore, it pursued the aim of the protection of the rights and freedoms of others. In determining whether an interference could be regarded as “necessary in a democratic society”, the Court will take into account that a margin of appreciation is left to the Contracting States and that the notion of necessity implies that the interference in any particular case must be proportionate to the legitimate aim pursued (see Eriksson judgment cited above, p.   26, §   69). The Court notes that X was placed in an orphanage on 9 May 1996 when he was one month old. Until the end of 1996 the applicant visited his son once a month. It appears that the visits became more frequent in the first half of 1998 when the child stayed in a hospital. However, until June 1998, when X was placed with the prospective adopters, the applicant had failed to take any decisive steps to obtain the custody of his son. During that period, the child developed an attachment disorder. What is more, it appears that he suffered from several other health problems. The prospective adopters provided the boy with the medical care necessary to treat them. The Court considers that a period of two years in the life of such a young child represented a very long period. Faced with the indecision of the applicant, the inability of the X’s mother to take care of the boy and his health problems, including an attachment disorder which results from institutionalisation and requires the provision of stable caring adults as parents, the domestic authorities acted in the best interest of X when they placed him with the prospective adopters. Moreover, the Court is of the view that the second residence order of 18 April 2001 and the decision to place X with foster parents of 12 June 2002 were also taken in the interest of the child, who by that time had with them a bond amounting to family life. Moreover, the Court notes that on 14 December 2000 the Bielsko ‑ Biała District Court dismissed an application for adoption lodged by M.N. and S.N. because of absence of, inter alia , the applicant’s agreement. On 3   August 2001 the applicant was granted visiting rights. However, until 12   June 2002 he visited his son only once. What is more, in his letter of 6   May 2003 the applicant informed the Court of his decision to discontinue visiting his son. The Court considers that these facts confirm the Oświęcim District Court’s doubts about the applicant’s commitment to providing care to X. Furthermore, the Court considers that the applicant has failed to present any prime facie evidence in support of his assertion that the placement of X with the prospective adopters resulted from the conspiracy between them and the director of the orphanage. Therefore, the interference with the applicant’s right to family life was proportionate to the legitimate aim pursued and within a margin of appreciation left to the respondent State. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4. For these reasons, the Court unanimously Decides to declare the application inadmissible.   Michael O’Boyle   Matti Pellonpää   Registrar   President