CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 7 septembre 2004

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AND J.P. against Poland The European Court of Human Rights (Fourth Section), sitting on 7   September 2004 as a Chamber composed of:   Sir   Nicolas Bratza , President ,   Mr   M. Pellonpää ,   Mrs   V. Strážnická ,   Mr   J. Casadevall ,   Mr   R. Maruste ,   Mr   S. Pavlovschi ,   Mr   L. Garlicki, judges , and Mrs   F.   Elens-Passos , Deputy Section Registrar , Having regard to the above application lodged on 19 August 2002, Having deliberated, decides as follows: THE FACTS Mrs R.P. (“the first applicant”) is a Polish national born in 1970. Until 2002 her initials were R.G. Mr J.P. (“the second applicant”) is a Polish national born in 1954. The applicants live in Poland. The facts of the case, as submitted by the applicants, may be summarised as follows. Since 2000 the applicants had been co-habiting. On 19 June 2001 the first applicant give birth to a boy, L.P. On 6 August 2001 L.P.’s maternal grandparents, Mrs T.G. and Mr M.G., lodged with the Poznań District Court a foster family application. They asked the court to deprive the applicants of their parental rights in respect of L.P. and designate themselves as the boy’s foster family. T.G. and M.G. submitted that since 6 August 2001 L.P. had remained in Śrem Hospital as a result of the first applicant’s negligence. They pointed out that the boy, who was two months old, had been admitted to the hospital because he was emaciated. He weighed only 3,450 grams, whereas his weight at the time of his birth was 3,700 grams. Moreover, T.G. and M.G. submitted that the first applicant suffered from a serious disability. In particular, she suffered from infantile cerebral paralysis, paraparesis, and was mentally retarded. The applicants lived in a building owned by the state railway company which was located near the railway and did not have any sanitary facilities. The toilet was situated in the courtyard and there was no running water, which had to be fetched from a well. The applicants could not afford to pay the rent, electricity and heating bills, and the second applicant could not earn money to pay those bills because he was receiving a disability allowance. On 20 August 2001 T.G. and M.G. made an application to the Poznań District Court for an interim residence order requiring L.P. to reside with them. On 27 August 2001 the Poznań District Court made an interim residence order requiring L.P. to reside with his maternal grandparents. At the same time it decided that the foster family application should be transmitted to the Środa Wielkopolska District Court. The court referred to Article 569 of the Code of Civil Procedure and gave the following reasons for its decision: “The minor L. was born on 19 June 2001 out of a relationship between R.G. and J.P. Both parents are handicapped pensioners. R.G. suffered from infantile cerebral paralysis. The family lives in very bad accommodation, which does not have running water, a bathroom or a toilet. The flat is damp, neglected and requires renovation. The parents are unable to properly take care of the child because of their disabilities. In addition, they are in a very difficult financial situation as they receive disability allowances in the total amount of PLN 961 and they are helped by the social services in Śrem. On 6 August 2001 the child was admitted to the hospital because of underweight and malnutrition. While the boy remained in the hospital his condition improved. He requires proper nutrition and care. The minor’s grandparents – the applicants – have proper conditions to provide the child with adequate care. The court has established the foregoing facts on the basis of the information received from the Śrem Hospital, where the minor L. is hospitalised, and social services in Kórnik. This information makes it clear that the child’s parents are unable to provide him with proper care because of their disabilities and inadequate accommodation. In these circumstances, the court has come to the conclusion that the well-being of the minor child is threatened – this is also shown by the child’s malnutrition. It has therefore decided to issue an interim residence order under Article 569 of the Code of Civil Procedure. The background check carried out in respect of the minor’s maternal grandparents has confirmed that they have proper conditions to take care of the child until the end of the proceedings and clarification of the situation of the family.” On 31 August 2001 the applicants filed with the Poznań Regional Court an appeal against the decision of 27 August 2001. The first applicant made allegations of abuse against her parents in the appeal and submitted that they should not be given the custody of L.P. as he might suffer the same abuse. On 13 November 2001 the Poznań Regional Court dismissed the applicants’ appeal. The Regional Court agreed with the reasoning of the District Court. In addition, it noted that L.P. was four months old, i.e., was of the age when the most important processes in the development of a child took place. Therefore, a situation where such a minor was in the custody of the parents who could not provide him with proper hygiene and nutrition amounted to an urgent case. On an unspecified date in 2002 the applicants married. In February 2002 J.P. approached the Poznań Committee for the Protection of the Rights of a Child ( Terenowy Komitet Ochrony Praw Dziecka). The Committee carried out interviews in the neighbourhoods where the applicants and T.G. and M.G. lived, as well as in the health centre in Szczodrzykowo and social services in Kórnik. On 29 March 2002 the Committee sent to the Środa Wielkopolska District Court a letter in which it submitted that the application to deprive the applicants of the parental rights was unjustified. The letter was signed by a pedagogue and a psychologist and emphasised that the applicants were “morally and materially competent to take care of their child”. The letter also expressed the Committee’s astonishment that social services in Kórnik, which were responsible for helping parents, supported the removal of the child from their custody. On 26 August 2002 the applicants asked the Środa Wielkopolska District Court to order T.G. and M.G. to undergo psychiatric examination. On 27 August 2002 the applicants decided that they would stop visiting their son because of the hostile attitude of the grandparents. On 4 September 2002 the applicants filed with the President of the Środa Wielkopolska District Court a request challenging the presiding judge. However, on 21 September 2002 that request was dismissed. On 16 January 2003 the Poznań Family Consultation Centre ( Rodzinny Ośrodek Diagnostyczno-Konsultacyjny ) submitted to the Środa Wielkopolska District Court an expert opinion in the case concerning the foster family application. The opinion was signed by the director of the centre, two psychologists and a medical doctor. It included the following conclusions: “1/ presently the emotional bonds of the minor L.P. with the grandparents are the strongest as they have been taking care of him since September 2001 (i.e. for 16 months). The minor considers the grandparents to be his closest persons, he feels loved and safe in their presence, shows them his feelings and spontaneously receives from them signs of affection and closeness; 2/ the emotional bonds between the child and the biological parents have been loosened because of the lack of constant positive contacts between them. The meetings of the parents with the son showed emotional tension which resulted from the conflicts between the biological parents and the present carers of the child (...); 3/ the psychological condition of R.P. does not allow her presently and in the future to take care of the child on her own. [It is characterized by] low intellectual ability, significant mental and social immaturity, low level of critical assessment of her abilities and behaviour, excessive dependence on dominant personalities – including that of her husband, lack of ability to receive and show feelings, lack of proper assessment of the development needs of a child, as well as lack of sufficient predisposition and abilities to direct a child; R.P. has suffered from infantile cerebral paralysis and her mobility is limited. She needs constant support and help from others. For the above reasons the biological mother is not able to fully secure the emotional and psychomotor needs of the child as well as the proper living conditions and accommodation; 4/ despite the help declared by the child’s father, who himself is ill and has low educational capabilities, it is impossible to provide the minor L. with the proper conditions for his development if he is given over to the permanent and direct care of the biological parents; 5/ from the psychological and medical point of view, both parents do not guarantee the proper care of the child and the proper stimulation of his development. Both parents are disabled, have very low incomes and modest accommodation – without basic facilities (toilet located outside, no running water which is taken from a well); 6/ in view of the above, we consider that it is in the best interest of the minor L.P. to stay with the foster family of grandparents (...) who presently give the best guarantee of providing the child with better living conditions; 7/ in order to provide the child with direct contacts with his biological parents and to secure his proper emotional development we suggest that R.P. and J.P. take the minor L. for a walk twice a week (...) and in addition take him to their flat in the first and third weekend of the month (...); 8/ the supervision of both parents by a court curator is necessary in order to know whether they properly fulfil their obligations relating to the care and education of the minor L.P.; 9/ we suggest that after a year a new examination take place in our centre in order to decide whether the change of the present recommendations is necessary; 10/ if the court curator finds gross negligence on the part of the biological parents, consideration should be given again to the application to deprive R.P. and J.P. of the parental rights over their son; 11/ it has proved impossible to mediate between the parties in our centre in view of the lack of mutual understanding and negative attitudes to each other (...); 12/ the most difficult problem to solve in the present case is the lack of proper relationship between the parties. We think that a psycho corrective approach should be taken in that respect (...).” On 25 February 2003 the applicants submitted to the Środa Wielkopolska District Court a letter in which they contested the conclusions of the expert opinion. On 27 March 2003 a hearing took place before the Środa Wielkopolska District Court. The court heard two expert witnesses who had signed the opinion of 16 January 2003. Both expert witnesses confirmed the conclusions of the expert opinion. The court decided to request the Committee for the Protection of the Rights of a Child in Poznań to submit an opinion concerning the bonds between L.P. and his parents. It also decided that mediation between the child’s parents and maternal grandparents should take place. COMPLAINTS The applicants complain under Article 8 of the Convention that their son was taken away from them and placed with his maternal grandparents.   They also submit that the facts of their case disclose a breach of Article   17 of the Convention. THE LAW 1. The applicants complain under Article 8 that their son was taken away from them and placed with his maternal grandparents. Article 8 provides: “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 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 L.P.’s birth there existed between the applicants and their son a bond amounting to family life. The Court considers that the decision to place L.P. with his grandparents constituted an interference with the applicants’ right to respect for their 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 Code of Civil Procedure 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 the Poznań District Court made on 27 August 2001 an interim residence order requiring the applicants’ son to live with his maternal grandparents. That decision was made after the child, who was two months old and underweight, had lost 7% of his body weight while in the care of the applicants and had been admitted to a hospital. The District Court also relied on the evidence which showed that the personal and material circumstances of the applicants made it impossible for them to secure the recovery and development of their son. The Court considers that domestic authorities, faced with a serious danger to the well-being of a child of such a tender age, acted in his best interest when they decided to place him with his grandparents. Therefore, the interference with the applicants’ right to family life was proportionate to the legitimate aim pursued and within the 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.   2. The applicants also complain about a breach of Article 17 of the Convention, which provides:   “Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”   However, the Court finds that the applicants’ assertion about the violation of the above provision of the Convention is wholly unsubstantiated. It follows that this complaint is inadmissible as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   Françoise Elens-Passos   Nicolas Bratza   Deputy Registrar   President