CEDH · CASELAW;COMMUNICATEDCASES;ENG — 25 novembre 2015

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both }     Communicated on 25 November 2015   FOURTH SECTION Application no. 73247/14 M.H. against Poland lodged on 19 December 2014 STATEMENT OF FACTS The applicant, Ms M.H., is a Polish national, who was born in 1973 and lives in Warsaw. A.     Background The applicant suffers from an autoimmunological disease which, in its acute phase, causes severe bleeding and requires hospitalisation. She was married to T.H. and their daughter, H.H., was born in March 2006. Since then the applicant’s health and, allegedly, mental condition deteriorated. She has received a preliminary diagnosis of delusional disorders. Her husband attempted to check her into a psychiatric hospital and one of many arguments between them ended with a police intervention. In August 2009, the applicant’s husband moved out from the family home together with the child. On 30 December 2011 the Konin Regional Prosecutor discontinued a criminal investigation into the applicant’s allegations that T.H. had harassed her when they had lived together on the ground that there was no case to answer. B.     Child custody On an unspecified date, after August 2009 a custody case was registered with the Konin District Court (no. III Nsm 394/09). On 9 October 2009 the Konin District Court validated a friendly settlement between the applicant and T.H., according to which the applicant had the right to contact her daughter every Wednesday from 1 p.m. to 7 p.m. On 19 February 2010 the Konin District Court issued an interim decision assigning the child’s residence with the father. The applicant’s interlocutory appeal was dismissed. On 19 February 2010 the Konin District Court validated a friendly settlement in which the parties agreed that the applicant would have contact with the child on Mondays from 1 p.m. to 6:15 p.m. On 5 October 2010 the Konin District Court validated a new settlement authorising the applicant to have contact with the child every other weekend, from 1:30 p.m. on Saturday until 6:15 p.m. on Monday. On 24 February 2011 the applicant applied for an interim decision, presumably on additional contact rights in the summer. On 19 April 2011 the custody proceedings before the Konin District Court were stayed in view of the divorce proceedings. C.     Divorce In March 2011 the parties’ divorce case was registered with the Warsaw Regional Court (no. VI C 288/11). This court took over the case files from the district court and jurisdiction over custody and contacts issues. On 1 July 2011 the Warsaw Regional Court issued an interim decision by which the applicant was authorised to spend half of the summer holidays (from 4 to 7 July 2011) with the child. A hearing was held on 8 July 2011. On 26 July 2011 the applicant applied for extended contact in September 2011, on 1 November 2011, during Christmas of 2011 and Easter of 2012. On 27   July 2011 the president of the court instructed the applicant to complete her application and ordered an expert report form the Family Consultation Centre (the RODK). On 17 August 2011 the applicant completed her application for contact. On an unspecified date in late October or early November 2011 the RODK’s report was produced. A hearing was held on 4 November 2011 and the parties declared a possibility of friendly settlement on the issue of the applicant’s contact. The next hearing was adjourned pending the parties’ negotiations. On 28 February 2012 the Warsaw Regional Court validated a friendly settlement by virtue of which the applicant was authorised to spend Easter holidays (from 5 to 9 April 2012) with her daughter. The applicant withdrew the remainder of her original application. Consequently, the regional court discontinued this part of the proceedings. On 8   March 2012 the Warsaw Regional Court issued an interim decision ordering the applicant to pay child support in the amount of 600   Polish zlotys (PLN) (120 euros (EUR)) per month. The applicant’s interlocutory appeal was dismissed by the Warsaw Court of Appeal on 10   September 2012. A hearing was held on 3   April   2012. On 28 June 2012 the Warsaw Regional Court validated a friendly settlement upon which the child was to spend half of the summer holidays (from 30 June to 30 July 2012) with the applicant. On unspecified dates two expert reports were issued by the RODK and the court’s bailiff was asked for a community interview report. On 27 May 2013 the Warsaw Regional Court pronounced a no ‑ fault divorce between the applicant and T.H. and ordered that the parents would have joint-custody and the child’s residence would be with the father. The applicant’s contact was scheduled as follows: every other weekend from Friday at 8   pm. until Sunday 7 p.m. and every other winter holiday; in alternate years, between the first and the second half of the summer holidays (either from 1 to 31 July or from 1 to 31 August); in alternate years, the first or the second part of Easter and in alternate years, the first or the second part of the Christmas holidays. The first ‑ instance court established the following facts on the basis of the witness’ testimony, the RODK reports and a report by experts in psychiatry. The child, who is starting primary school in 2015, is neat, calm and cheerful. She has not been negatively affected by her relocation to another town with her father in 2009. She has a strong bond with both parents but she considers her father as her primary caretaker. The girl likes spending time with her mother but wishes to live in Konin, in the more familiar environment and where she has friends. She has gotten used to her life with separated parents. T.H. who is a university teacher, has adequate parenting skills and a good emotional bond with his daughter. He is in conflict with the applicant and reproaches neglectful parenting to her. He lives in his own 60 square metre-flat in Konin. The applicant works as a university teacher. She has adequate parenting skills and has a good relationship with her daughter. In the past, the applicant had reacted to stress with acts of self ‑ mutilation, depression and anxiety. The report of experts in psychiatry, concluded that the applicant did not suffer from any mental illness or other psychiatric disorders. She is currently under permanent medical supervision for her autoimmunological disease. She resents T.H. and presents him in a negative light. The applicant does not have a permanent residence and is currently living in a company flat, which is located in Warsaw on the university campus. The court ordered shared-custody as sought by both parties in view of their similar parenting skills and their cooperation driven by the best interest of their daughter. On the other hand, the child’s residence was fixed with the father because he was considered to offer better guarantees of adequate realisation of parenting duties. In particular, T.H. has his own flat and he is occasionally helped by his mother and sister. The applicant’s living situation on the other hand, is less stable and she may find it difficult to adequately care for her daughter in the event of a relapse of her illness. Moreover, during her examination at the RODK, the child has expressed a clear wish to continue living with her father in Konin as this place has been her life-centre for the past four years. The planning of the applicant’s contacts with her daughter was in line with her own motion in the event she did not obtain the child’s residence. The domestic court also ruled on the issue of the fault for the break-up of the marriage. The applicant appealed arguing generally wrong assessment of evidence and wrong conclusions and reiterating that the child’s residence should be with her. On 14 May 2014 the Warsaw Court of Appeal partly changed the above judgment by declaring that the divorce was at the fault of T.H. and by limiting the applicant’s custody to co-deciding about significant issues in the child’s life. The appellate court disagreed with the first-instance court and held that the applicant could care for her daughter as well as T.H. despite the fact that she lived in a company flat and did not have family or neighbours who could help in the event of illness. On the other hand, the appellate court adhered to the lower court’s decision that the child should continue living with the father because that was in line with the child’s wishes and because Konin was the centre of her life. Changing her place of residence at the moment would not be in the girl’s interest. This ruling was without prejudice for any future decision should the child life circumstances change. Lastly, the applicant’s custody had to be formally limited because the parties failed to present the domestic courts with the agreement on the implementation of joint-custody after divorce and because the applicant’s contact rights have been enforced with conflict even though, in line with the subsequent decisions and settlements. It was, therefore considered unlikely that the parents would correctly cooperate in matters related to the child’s upbringing. D.     Unreasonable length of proceedings under the 2004 Act On 22 June 2012 the Warsaw Court of Appeal issued a decision acknowledging that the divorce proceedings have been unreasonably lengthy and awarded the applicant 2000 PLN (500 EUR). In particular, it was concluded that the only flaw of the impugned proceedings was that an unreasonable delay had occurred between 26   July 2011 when the applicant lodged her motion for new contact dates and 28 February 2012 when the regional court decided on the issue accepting the parties’ friendly settlement. In result, the applicant did not obtain additional contact dates in September, November and December 2011. Because of the proximity of the dates in question, the regional court should have ruled on contact without seeking the RODK report, especially since the materials in the case file had been sufficiently abundant. Other than that, the appellate court found that hearings had been scheduled frequently enough, that the regional court ordered a number of reports and ruled on the applicant’s motions for legal-aid and for the adjournment of the hearing of 4 November 2011, and that the overall length of the proceedings was attributable to the fact that case files had to be transferred from the Konin District Court. COMPLAINTS The applicant complains, invoking Article 6 of the Convention about the unreasonable length of the proceedings in which her custody rights and the residence of her daughter were decided. She also complains under Article   8 of the Convention about the outcome of these proceedings. QUESTION TO THE PARTIES Has there been a failure by the State to comply with its positive obligations to protect the applicant’s right to respect for her family life under Article 8 of the Convention? Reference is made to the following aspects of the application:   -     the course and the length of the proceedings for determination of the child’s residence and the applicant’s custody rights, which lasted from 2009 to 2014; and   -     the allegation that the decision of the Warsaw Court of Appeal of 14   May 2014 was unjustified and contrary to the best interest of the applicant’s child.