CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 23 janvier 2007

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Ł. and M. H.-Ł. against Poland The European Court of Human Rights (Fourth Section), sitting on 23   January 2007 as a Chamber composed of:   Sir   Nicolas Bratza , President ,   Mr   J. Casadevall ,   Mr   G. Bonello ,   Mr   K. Traja ,   Mr   S. Pavlovschi ,   Mr   L. Garlicki ,   Ms   L. Mijović, judges , and Mr T.L. Early , Section Registrar , Having regard to the above application lodged on 15 April 2002, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having deliberated, decides as follows: THE FACTS The applicants, Mr J.Ł. and Mrs M. H.-Ł., are Polish nationals, who were born in 1957 and 1959 respectively. They are married to each other. The first applicant is a physiotherapist and the second is a teacher. They live in Warsaw. In the proceedings before the Court the applicants chose not to be represented. The respondent Government are represented by Mr   J.   Wołąsiewicz of the Ministry of Foreign Affairs. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. On 13 November 1998 the applicants signed an agreement with the Catholic Adoption Centre in Warsaw. Under the terms of the agreement they agreed to provide care to X, a boy born on 16 July 1998. The applicants were chosen as prospective adopters for X because of their professions since the child required special care on account of his health problems. In this connection, the applicants referred to the conclusions of a medical opinion of 30   October 1998 which stated that X showed disturbed physical development and slightly retarded psychomotor development. It was also recommended in the opinion that the child should be placed without delay with a caring adoptive family, which would create the conditions for his proper development. On 13 November 1998 E.K., the biological mother of X, was deprived of her parental authority for X. On the same day the boy began to live with the applicants. On 16 December 1998 the Warsaw District Court appointed a guardian ( opiekun prawny ) for X. On 25 January 1999 the applicants filed with the Warsaw District Court an application for the adoption of X. On 4 February 1999 E.K. requested the Warsaw District Court to restore her parental authority for X. As a result of this request the Warsaw District Court stayed the adoption proceedings on 8 February 1999. On 25 March 1999 the court held the first hearing at which it heard E.K. and X’s guardian. The next hearing was held on 15 June 1999. On an unspecified date in 1999 E.K. applied to the Warsaw District Court for interim measures. In particular, she asked the court to change the guardian of X and to grant her and her parents, J.K. and B.K., visiting rights. On 23 June 1999 the District Court rejected her application for interim measures. The court did not see any grounds for changing the guardian. It pointed out that X had been born with a serious neurological disorder and required physiotherapy on a daily basis. As for the request to grant visiting rights to E.K. and her parents, the court rejected it for the following reasons: “The application for interim measures does not contain any reasons for allowing [E.K.] and her parents to visit the child. The District Court considers that this request is not aimed at the well-being of the child but results from the change in the attitude of [E.K] and (...) her parents’ endeavours to obtain the legal custody of [X]. The evidence gathered shows that [E.K.] is still undergoing therapy. Getting back the child is a part of that therapy and would allow [E.K.] to return to normal life. The decision to allow [E.K.] and her parents to visit the child would require the return of the child to a child-care facility. Therefore, the child would be deprived of his present living conditions which provide him with proper physical and (...) emotional development. The child has been living in this environment for six months. (...)” On 21 September 1999 the Warsaw Regional Court ( Sąd Okręgowy ) dismissed E.K.’s appeal against the decision of 23 June 1999. The Warsaw District Court held hearings on 21 October, 18   November and 16   December 1999 and 9 February 2000. On 2 March 2000 the Warsaw District Court dismissed E.K.’s request to restore her parental authority for X. The court observed that since June 1997 E.K. had cohabited with a man who had fathered X. Her parents had not approved of that relationship. E.K. had concealed her pregnancy. She had not consulted a doctor and smoked. E.K. had been interested in continuing the relationship with her child’s father, who had, however, not accepted the child. When X was born, E.K. declared that she wanted to leave him in the hospital for subsequent adoption. In August 1998 the father of X had left E.K. and she had moved into her parents’ flat. She started psychological therapy and in December 1998 informed her parents about the birth of X. The court considered that E.K. was not emotionally ready to take care of a child. Moreover, her actions had been influenced by her parents. E.K. was responsible for the fact that there did not exist any emotional bonds between her and X. At the same time, X had strong emotional bonds with the applicants who provided him with very good living conditions. On 29 May 2000 E.K. appealed against this decision. On 13 July and 23 November 2000 the Warsaw Regional Court held hearings and on the latter date it quashed the decision of the Warsaw District Court and remitted the case for reconsideration. On 19 December 2000 the Warsaw District Court held the first hearing at which it decided to order opinions of two experts in psychology. The experts submitted their opinions on 2 March 2001. At the hearing held on 8 March 2001 the Warsaw District Court again dismissed E.K.’s request to restore her parental authority for X. At the same time the court decided that X should be placed in the foster family of J.K. and B.K. It pointed out that E.K. was not able to provide X with proper care. The court referred to expert evidence which showed that she was emotionally and socially immature and behaved like a child who needed care and who was not responsible for her actions. As for its decision to place X with E.K.’s parents the court was of the view that “it was justified to place the child in the foster family of the maternal grandparents since the advantages from growing up in a biological family exceeded the disadvantages resulting from the change of [X’s] environment.” E.K. appealed against the decision. On 23 May 2001 the Warsaw District Court refused the applicants’ standing in the proceedings for an application for the restoration of E.K’s parental authority. The applicants appealed, but their appeal was dismissed on 26   June 2001 by the Warsaw Regional Court. On 4   July 2001 the Warsaw District Court rejected the applicants’ appeal against its decision to place X with his biological grandparents, J.K. and B.K., since the applicants did not have standing in those proceedings. On 5 September and 4 October 2001 the court held hearings. At one of the hearings the Regional Court heard the applicants. On 18 October 2001 the Warsaw Regional Court allowed E.K.’s appeal against the decision of the Warsaw District Court and granted her parental authority for X. Basing itself on the expert opinions, the court established that there were at present no indications that E.K. should not be personally taking care of X. The court then stated: “An important issue, undoubtedly of the greatest significance, is to establish whether the well ‑ being of [X] requires that he be returned to his biological mother. The interest of the child is the overriding factor in the instant case. According to the experts, whose opinions were followed by the District Court, a child will have the best conditions for its development in the biological family. Other forms of foster family are allowed only if the biological parents are unable or inept to care [for the child]. Obviously, every change in the environment of [X] might give rise to difficulties of adaptation; however, it is common knowledge that small children adapt quickly to new conditions. The Adoption Centre offers to help in this respect. The experts underlined that the removal of [X] to the biological family had to be carried out correctly; it did not have to create a shock for him. The pre-adoptive family, for which the separation would be extremely painful, declares that, to ensure the best for X, they will do everything to make the removal of X as painless as possible for him. The behaviour of the biological family ... shows their understanding that ... entering into X’s life must come gradually, consensually and in a manner accepted by both parties. The [applicants’ and E.K.’s] position on that issue lead [the court] to believe that the biological mother’s taking over the care of [X] would not create a shock for the child. In the light of the above, the court decided as in the operative part.” The decision was final. On 8 November 2001, X, who had been living with the applicants for three years and considered them as his parents, was taken away from them. On 30 January 2002 the Warsaw District Court discontinued the adoption proceedings. On 25 September 2002 the Warsaw District Court dismissed the applicants’ application to grant them visiting rights. B.     Relevant domestic law 1.     The provisions relating to restoration of parental authority The custody and adoption of children are regulated by the Family Code   1964 ( Kodeks Rodzinny i Opiekuńczy ). Article 111 of the Family Code provides as follows: “1.     If parental authority cannot be carried out due to a permanent obstacle or due to fact that the parents abuse their parental authority or grossly neglect their duties with respect to children, the family court shall deprive the parents of their parental authority... 2.     If the reasons for which deprivation of the parental responsibilities was ordered cease to exist, the family court may restore parental authority.” 2.     Remedies against unreasonable length of proceedings On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time ( Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings. A more detailed rendition of the relevant domestic law provisions is set out in the Court’s judgment in Krasuski v.   Poland , no.   61444/00, §§   34 ‑ 46, ECHR   2005–... (extracts) and in Charzyński v.   Poland (dec.), no.   15212/03, §§   12 ‑ 23, ECHR 2005–.... COMPLAINTS 1.     The applicants complained under Article 6 of the Convention that the length of the adoption proceedings and the proceedings for the restoration of parental authority for X had been unreasonable. 2.     They also submitted that during the three years when the child had been in their custody, in the pre-adoption family, they had developed very strong emotional bonds with each other. The decision to take X away from them was therefore in breach of Article   8 and violated their right to respect for their family life. THE LAW 1.     The applicants complained under Article 6 of the Convention that the length of the proceedings for the restoration of parental authority in respect of X was unreasonable. The Court notes that the proceedings originated in an application lodged by E.K. in which she had sought the restoration of parental authority in respect of X. The applicants were not parties to those proceedings. Accordingly, this set of proceedings did not concern their “civil rights and obligations” and Article   6 did not apply to them. It follows that their complaint about the unreasonable length of the proceedings concerning the restoration of E.K.’s parental authority in respect of X is incompatible ratione materiae with the provisions of the Convention within the meaning of Article   35 §   3 and must be rejected in accordance with Article   35 §   4. The applicants also complained about the unreasonable length of the adoption proceedings. However, pursuant to Article 35 § 1 of the Convention: “The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law ...” The Court notes that the proceedings in question came to an end on 30   January 2002, i.e. less than three years before 17 September 2004, the date on which the 2004 Act came into force. It further observes that, pursuant to section 16 of the 2004 Act, it was open to persons such as the applicants to seek compensation in tort from the State Treasury, relying on Article 417 of the Civil Code for damage caused by the allegedly excessive length of proceedings in which a judicial decision on the merits of the case had already been given (see, Turzyński v.   Poland (dec.), no.   10453/03, 22   November 2005). The Court has already examined whether a civil action for damages under section 16 of the 2004 Act read together with Article 417 of the Civil Code was an effective remedy in respect of the length of judicial proceedings. It held, having regard to the characteristics of these remedies and notwithstanding the absence of established judicial practice in respect of such claims, that these remedies were effective in respect of persons who on 17   September 2004, when the 2004 Law entered into force, could still lodge such an action with the competent domestic court ( Krasuski v.   Poland , no.   61444/00, §   72, ECHR 2005–...). However, the applicants despite having been informed by the Registrar of the possibility of lodging a civil action under section 16 of the 2004 Act read together with Article 417 of the Civil Code maintained that they should not be required to exhaust such a remedy. It thus appears that they have chosen not to avail themselves of this remedy. It follows that this complaint must be rejected under Article   35 §§   1 and   4 of the Convention for non-exhaustion of domestic remedies.   2.     The applicants’ second complaint relates to the fact that the authorities had taken X away from them, violating their right to respect for their private and family life. They relied on Article 8 of the Convention, which in so far as relevant, reads as follows: “1.     Everyone has the right to respect for his private and 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 applicants submitted that during the three years they had spent with X they had lived together as a family, had loved each other and had been dependent on each other. They were perceived as a family by friends and relatives. The applicants argued that in spite of the fact that the adoption proceedings instituted by them had not yet finished, the bonds created between them and X had amounted to family life. Their confidence in the outcome of the adoption proceedings was supported by the courts’ decisions repeatedly dismissing E.K.’s application for restoration of her parental rights and allowing X to remain in their care. The applicants also argued that the decision of the Regional Court which granted parental authority to the biological mother disregarded the well ‑ being of the child who was considered “a part of his mother’s therapy”. In their opinion, removing a three-year old boy from the only family he knew and placing him with his biological mother, who was a stranger to him, was not “civilised behaviour” and showed that the authorities had treated X like an object. The Government objected to the applicants’ submission that the bond between them and X could be considered “family life” within the meaning of Article   8 of the Convention. They argued that the applicants could not be considered “victims” of a violation of their right to family life under Article   8 of the Convention but refrained from expressing their opinion as to whether the case fell within the notion of “private life” under that Article. However, if it were established that the present case fell within the scope of Article   8 then the Government could agree that the removal of the child constituted interference by a public authority. However, any such interference was “in accordance with the law” and “necessary in a democratic society” for the purpose of the protection of the rights of others, namely the biological mother of X. Finally, the Government argued that the domestic courts had carefully considered what would be in the best interests of the child and had applied Convention standards in this respect. The Government referred to the Court’s case-law which gives clear priority to the rights of the natural parents to form a family life with a child ( Görgülü v.   Germany , no.   74969/01, §§   44 ‑ 47, 26 February 2004). The Court firstly notes that the existence of a “ family life” has been questioned by the Government. It observes that the domestic authorities removed from the applicants’ care a child for whom they had been its pre ‑ adoptive family for three years. Notwithstanding the fact that no decision regarding the adoption of the child had been given, the Court considers that they must have developed strong bonds with the child. However, it does not find it necessary to examine this question further. Assuming that the decision to remove the child from the applicants’ care amounted to interference with their right to respect for their family life within the meaning of Article   8 §   1 of the Convention, the application is nevertheless inadmissible on other grounds. The Court will thus examine whether the conditions of Article 8   § 2 of the Convention were satisfied, i.e. whether the interference was “in accordance with law”, pursued one or more of the legitimate aims set out in that paragraph, and was “necessary in a democratic society” for the achievement of that aim or aims. It is not contested by the parties that the measure was in accordance with the law. The Court sees no reason to hold otherwise. The Court further finds that the interference pursued a legitimate aim, namely the protection of the “rights and freedoms” of the natural mother and X. In determining whether the impugned measures were “necessary in a democratic society”, the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify them were relevant and sufficient for the purpose of paragraph 2 of Article 8 of the Convention (see, inter alia , Olsson v.   Sweden (no. 1) , judgment of 24 March 1988, Series   A no.   130, p.   32, §   68). Consideration of what is in the best interests of the child is in every case of crucial importance. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned (see Olsson v. Sweden (no. 2) , judgment of 27   November 1992, Series   A no.   250, pp.   35-36, §   90). It follows from these considerations that the Court’s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities for the regulation of the public care of children and the rights of parents whose children have been taken into care, but rather to review under the Convention the decisions taken by those authorities in the exercise of their power of appreciation (see, for example, Hokkanen v.   Finland , judgment of 23 September 1994, Series A no.   299 ‑ A, p.   20, §   55, and Johansen v.   Norway , judgment of 7 August 1996, Reports of Judgments and Decisions 1996 ‑ III, § 64). Turning to the circumstances of the instant case the Court firstly observes that the domestic court gave careful consideration to what was in the best interests of the child. The court took an evolutive approach and established that the capacity of the biological mother to care for her son had evolved over the past 3   years. It found that over time the initial indications pointing to E.K.’s inability to personally care for X. had not been confirmed. It found on the facts that the best interests of X required that he be returned to his biological mother and that the natural family would offer the best conditions for his future development. The Court notes that in coming to its decision the domestic authority had relied not only on the opinions of the experts but also on the views of all the parties involved including the applicants, E.K. and her parents. Moreover, the District Court, having held oral hearings, benefited from direct contact with the parties and could hear the expert witnesses as well as all persons involved and thus make a clear assessment of the issues before it. In weighing what was in the best interests of X, the domestic court considered that a biological family offers a priori the best conditions for the development of a child. In this context, the Court reiterates its case-law in which it held that it is in a child’s interest for its family ties to be maintained, as severing such ties means cutting a child off from its roots, which can only be justified in very exceptional circumstances (see Gnahoré v.   France , no.   40031/98, §   59, ECHR 2000-IX, Johansen , cited above, pp.   1008 ‑ 1009, §   78, and P.,C. and S. v. United Kingdom , cited above, §   118). Taking a child into care should normally be regarded as a temporary measure to be discontinued as soon as circumstances permit and that any measures of implementation of temporary care should be consistent with the ultimate aim of reuniting the natural parent and the child (see, in particular, the above-mentioned Olsson (no. 1) judgment , p. 36, § 81). In this regard, a fair balance has to be struck between the interests of the child in remaining in public care and those of the parent in being reunited with the child (see, Hokkanen v.   Finland, cited above, p. 20, § 55, Johansen v.   Norway , cited above, §   78). Although the above principles apply to circumstances in which a child is placed in the care of a public institution, they are nonetheless valid in the instant context, namely to the decision to remove a child from his biological parent and to his entrust his care to a pre-adoptive family. In view of the above considerations and given the supervisory role of the Convention organs in the context of custody and child-care decisions, the Court cannot find that the decisions in the present case were disproportionate to the aim of ensuring the child’s best interest. Regard being had to the margin of appreciation afforded to the State, the Court considers that there is no appearance of a violation of Article 8 of the Convention in the instant case. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and   4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   T.L. Early   Nicolas Bratza   Registrar   President