I correctly predicted that there was a violation of human rights in BRUNNER v. POLAND.
Information
- Judgment date: 2020-07-09
- Communication date: 2017-05-12
- Application number(s): 71021/13
- Country: POL
- Relevant ECHR article(s): 6, 6-1, 8, 8-1
- Conclusion:
Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life) - Result: Violation SEE FINAL JUDGMENT
JURI Prediction
- Probability: 0.546308
- Prediction: Violation
Consistent
Legend
Communication text used for prediction
The applicant, Mr Marian Brunner, is a Polish national who was born in 1970 and lives in Psary.
A.
The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows.
1.
The first custody decision In October 1999 the applicant filed for divorce and made a request to the court to regulate his contact rights with his daughter, who was born on 21 June 1998.
In 2001 an expert opinion was prepared at the request of the court.
On 23 November 2001 the Czestochowa Regional Court pronounced the applicant’s divorce and granted him visiting rights allowing him to see his child every other Saturday for four hours in the presence of her mother and a guardian.
The visits did not take place.
2.
The first enforcement attempts On 9 July 2002 the applicant applied for enforcement of the court’s order and imposition of a fine on his former wife for hindering his visits with his daughter.
He also requested the appointment of a guardian who could assist him in the enforcement of the visits.
On 9 September 2003 the Bytom District Court ordered the applicant’s former wife to comply with the order of 23 November 2001.
On 1 June 2004 the court decided to impose a fine of 300 Polish zlotys (PLN) on the applicant’s former wife.
It ordered her to comply with the visiting arrangements set by the court on 23 November 2001 on pain of a further fine of PLN 600.
3.
The second custody proceedings On 2 June 2003 the applicant applied to change the contact arrangement and obtain custody of his daughter.
He pointed out the mother’s negative influence on the girl and her refusal to respect the contact orders.
The court commissioned an expert opinion; it was submitted to the court after one year, on 21 September 2004.
The opinion established that the emotional ties between the applicant and the child had been broken but they could be re-established.
On 14 December 2004 the Tarnowskie Góry District Court dismissed the applicant’s application to change the custody arrangement.
On 26 April 2005 the Głowicie Regional Court dismissed an appeal by the applicant but amended the contact arrangement.
It ordered that the applicant had the right to visit his daughter every other Saturday for six hours in a place away from her domicile and on his own.
4.
The second enforcement attempt The order of 26 April 2005 became enforceable on 1 June 2005 and six days later the applicant applied for imposition of a fine on his former wife for her failure to comply with it.
The application was examined on 3 February 2006 and the Tarnowskie Góry District Court fined the applicant’s former wife PLN 1,000.
Upon an appeal by her, the Gliwice Regional Court on 29 September 2006 reduced the fine to PLN 600.
The court noted that visits had not been taking place, but the parties differed as to the reasons why.
At least one visit had not taken place because the child had been sick.
5.
The third enforcement attempt On 23 October 2006 the applicant lodged another application to fine his former wife.
On 29 June 2007 the Tarnowskie Góry District Court dismissed the request.
It established that the meetings between the applicant and the child had not been taking place as ordered and that on some occasions the police had had to intervene.
The child had been hysterical and had refused to go with the applicant.
On other dates the meetings had not taken place as the applicant had stopped coming to them.
On 17 October 2007 the Gliwice Regional Court dismissed an appeal lodged by the applicant.
6.
The third custody proceedings On an unspecified date in 2008 the applicant initiated another set of proceedings relating to custody arrangements (III Nsm 250/08).
On 9 September 2008 an expert opinion was prepared.
On 18 March 2009 the District Court gave a ruling which was upheld on 9 April 2009.
7.
The fourth custody proceedings On 7 May 2009 the applicant initiated another set of proceedings in which he sought to amend the visiting arrangements, proposing that the visits take place in a neutral environment for the child and in the presence of a psychologist.
On 10 December 2009 the Tarnowskie Góry District Court dismissed his application.
The court established that the applicant had stopped coming to the scheduled meetings with his daughter since February 2006.
Moreover, the court considered that holding the meetings at her school would not be in the best interest of the child.
The existing visiting arrangements allowed the applicant to take the child to any place outside her domicile but the applicant had himself taken the decision not to come to see his daughter.
The court found no instances of the mother hindering contacts with the child in the period under consideration.
On 19 August 2010 the Gliwice Regional Court quashed the above decision and remitted the case to the lower court.
The court pointed to the fact that the negative attitude of the child towards the applicant had clearly been influenced by her mother, who in reality had been opposed to any meetings with her father.
The girl was twelve years old and did not know her father.
In such circumstances the district court concluded too early that the meetings were not taking place because of the applicant’s own decision to stop coming to them.
In his application of 19 January 2011 the applicant reiterated his previous request that therapy sessions be ordered for his daughter, pointing out that this solution had been proposed in expert opinions.
The applicant requested that the court specify the exact place where the therapy was to take place.
In another application the applicant requested that the court examine the validity of various medical certificates which had been used by his former wife to justify her absences from the hearings.
The applicant suggested that his former wife had been working normally and had been avoiding attending the court in order to prolong the proceedings.
On 27 April 2011 the Gliwice Regional Court dismissed the applicant’s complaint under section 5 of the Law of 17 June 2004 on complaints about a breach of the right to an investigation conducted or supervised by a prosecutor and to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”).
On 18 May 2012 the Tarnowskie Gory District Court, after reconsidering the case, ordered the applicant and his former wife to undergo therapy.
The court established that the applicant had seen his daughter twice since February 2006, in June 2009 when he came to her school and in May 2010.
In both instances, however, the applicant had been unable to engage her in any conversation.
The therapy ordered by the court could ameliorate the relation between the parents and to help to rebuild the father-daughter relationship.
The court reiterated that, taking into account the best interest of the child, the meetings should not take place at her school.
On 17 April 2013 the Gliwice Regional Court partly amended the decision in that for the duration of the therapy, and for a maximum of eight months, the applicant’s contact with his daughter should be limited to phone calls only.
The applicant applied for an enforcement clause and on 20 December 2013 the Tanowskie Góry District Court granted his request.
However, on 14 May 2014 the Gliwice Regional Court overruled the enforcement clause, finding that the final order to undergo therapy of 17 April 2013 did not lend itself to forcible enforcement by the State.
8.
The last set of custody proceedings It appears that the applicant and his former wife had attempted therapy sessions with the psychologist, as indicated by the court, but stopped them in November 2013.
On 22 November 2013 the applicant’s former wife applied to the court to amend the order of 14 April 2013 by changing the psychologist with whom she had been ordered to undergo therapy since she considered him incompetent.
It appears that for the following year the applicant’s former wife sent the court various medical certificates proving her inability to appear before it.
On 18 July 2015 the court obtained an expert opinion which concluded that the illnesses cited by the applicant’s former wife had not been serious enough to warrant such long-term inability to appear before a court.
On 20 January 2016 the Tarnowskie Góry District Court ordered the parties to undergo therapy, but left the choice of therapist to them.
The court took also into account a letter of 24 March 2014 from the then psychologist, who confirmed that there was no prospect of success of this therapy.
On 6 October 2016 the Gliwice Regional Court examined an appeal lodged against the above decision and discontinued the case as the applicant’s daughter had turned eighteen and was no longer subject to parental authority.
Between 2001 and 2016 the applicant wrote numerous complaints to the Minister of Justice, the Ombudsman, the President of the courts dealing with his cases, the Head of the Medical Board, and the Helsinki Foundation for Human Rights.
He received replies in particular from the Presidents of the courts, who on each occasion expressed the view that the courts had dealt with his cases diligently and speedily.
The Ombudsman also intervened on his behalf on several occasions.
B.
Relevant domestic law and practice The relevant domestic law concerning enforcement of a parent’s visiting rights in force prior to 13 August 2011 is set out in the Court’s judgment in P.P.
v. Poland (no.
8677/03, §§ 69-74, 8 January 2008).
As regards the period after that date, it is set out in the judgment in Wdowiak v. Poland, no.
28768/12, §§ 49 and 50, 7 February 2017.
COMPLAINTS The applicant complains under several Articles of the Convention about the ineffectiveness of the domestic authorities in dealing with his requests to enforce the decisions granting him visiting rights.
He submits that, despite their obligation to act speedily and the sensitivity of the situation, the courts were slow and lacking in diligence.
That led to a total severance of the relationship between the applicant and his daughter.
He also complains about the unreasonable length of the proceedings, in particular the set in which he lodged a complaint under the 2004 Act.
Judgment
FIRST SECTIONCASE OF BRUNNER v. POLAND
(Application no. 71021/13)
JUDGMENT
STRASBOURG
9 July 2020
This judgment is final but it may be subject to editorial revision. In the case of Brunner v. Poland,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Linos-Alexandre Sicilianos, President,Krzysztof Wojtyczek,Armen Harutyunyan, judges,and Renata Degener, Deputy Section Registrar,
Having regard to:
the application (no. 71021/13) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Marian Brunner (“the applicant”), on 7 November 2013;
the decision to give notice of the application to the Polish Government (“the Government”);
the parties’ observations;
Having deliberated in private on 16 June 2020,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns non-enforcement of the applicant’s visiting rights in respect of his minor daughter. THE FACTS
2. The applicant was born in 1970 and lives in Psary. The applicant was represented by Ms A. Przedpełska, a lawyer practising in Częstochowa. 3. The Government were represented by their Agent, Ms J. Chrzanowska and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. In October 1999 the applicant filed for divorce and made a request to the court to regulate his contact rights with his daughter, K., who had been born on 21 June 1998. 6. It appears that on 11 December 2000 the Częstochowa District Court issued the first decision concerning contact. 7. On 23 November 2001 the Częstochowa Regional Court dissolved the applicant’s marriage and granted him contact rights, allowing him to see his child every other Saturday for four hours in the presence of her mother and a guardian (kurator sądowy). 8. The applicant submitted that most of the visits had not taken place or had been disturbed by the hostile attitude of the mother. The Government stated that the visits had taken place until May 2003. 9. On 14 May 2001 the guardian prepared a report on the manner in which the meetings had been carried out; she noted that out of seventeen planned meetings, five had not taken place. The expert considered that the child had been manipulated by her mother. According to the expert some of the situations had amounted to emotional ill-treatment of K. by her mother as the latter had been using the child to hurt the applicant. In consequence the child was negatively disposed towards the applicant, whom she associated with unpleasant situations. The guardian suggested changing the contact order by moving the venue away from the mother’s house. Moreover, she noted that the visits had usually taken place in the presence of several other third persons – members of the mother’s family – which made it ever more difficult for the applicant to play and talk with a toddler. The guardian suggested that the number of other persons present during the applicant’s visits should therefore be limited. 10. On 6 November 2001 the Gliwice Regional Court rejected for formal reasons applications by the applicant to enforce his contact rights and to impose a fine on his wife. 11. On 9 July 2002 the applicant applied for enforcement of the court order of 23 November 2001 and requested imposition of a fine on his former wife for hindering his contact with his daughter. 12. He also requested the appointment of a new guardian who could assist him in the enforcement of his contact rights, as the former one had refused to continue acting in the applicant’s case. In September 2002 the applicant urged the court to deal with his application faster as the visits with his child were not taking place. 13. On 9 September 2003 the Bytom District Court ordered the applicant’s former wife to comply with the order of 23 November 2001. 14. On 1 June 2004 the court decided to impose a fine of 300 Polish zlotys (PLN) on the applicant’s former wife. It ordered her to comply with the contact arrangements set by the court on 23 November 2001 on pain of a further fine of PLN 600. 15. On 2 June 2003 the applicant applied to change the contact arrangement and to obtain custody of his daughter. He pointed to the mother’s negative influence on the girl and her refusal to respect the contact orders. 16. The court commissioned an expert opinion; it was submitted to the court over one year later, on 21 September 2004. The opinion established that the emotional ties between the applicant and the child had been broken. However their re-establishment was possible and necessary for the long-term development of the girl. The experts suggested that the parties should undergo therapy with a view to ease the conflict between them. 17. On 15 October 2004 the court gave an interim order instructing the applicant’s former wife and her daughter to undergo therapy. They did not show at a meeting with the therapist. 18. On 14 December 2004 the Tarnowskie Góry District Court dismissed the applicant’s application to change the custody arrangement. 19. On 26 April 2005 the Gliwice Regional Court dismissed an appeal by the applicant but amended the contact arrangement. It ordered that the applicant had the right to have contact with his daughter every other Saturday for six hours on his own in a place away from her domicile. 20. The order of 26 April 2005 became enforceable on 1 June 2005 and six days later the applicant applied for imposition of a fine on his former wife for her failure to comply with it. 21. The application was examined on 3 February 2006 and the Tarnowskie Góry District Court fined the applicant’s former wife PLN 1,000. Following an appeal by her, the Gliwice Regional Court on 29 September 2006 reduced the fine to PLN 600. The court noted that visits had not been taking place, but the parties differed as to the reasons why. At least one visit had not taken place because the child had been sick. 22. On 23 October 2006 the applicant lodged another application to fine his former wife. On 29 June 2007 the Tarnowskie Góry District Court dismissed the request. It established that the meetings between the applicant and the child had not been taking place as ordered and that on some occasions the police had had to intervene. The child had been hysterical and had refused to go with the applicant. On other dates the meetings had not taken place as since March 2006 the applicant had stopped coming to them. 23. On 17 October 2007 the Gliwice Regional Court dismissed an appeal lodged by the applicant. 24. On 20 July 2005 the applicant initiated proceedings in which he sought to ensure his former wife attended therapy sessions, as suggested by the experts in their report of 21 September 2004 (see paragraph 16 above). In reply, the applicant’s former wife sought total suspension of his contact rights for two years, arguing that the applicant was incapable of communicating with his daughter. During the proceedings it was established that the last meetings had taken place in 2001 and that later the applicant had on many occasions come to their place without being able to see the girl. 25. On 3 July 2007 the Tarnowskie Góry District Court dismissed the applicant’s request but the decision was quashed for formal reasons on 22 November 2007. 26. On 9 September 2008 an expert report was prepared. The experts noted that the relationship between the applicant and the child could not have been bolstered as for many years K. had not had any contact with her father. The experts suggested resuming contact in a limited scope and carrying out the meetings on neutral ground – for example her school – in the presence of a school psychologist. On 18 March 2009 the District Court dismissed the applicant’s application. That decision was upheld on 9 April 2009. 27. On 7 May 2009 the applicant initiated another set of proceedings in which he sought to amend the contact arrangements, proposing that the meetings take place in a neutral environment for the child and in the presence of a psychologist. 28. On 10 December 2009 the Tarnowskie Góry District Court dismissed his application. The court established that the applicant had stopped coming to the scheduled meetings with his daughter since March 2006. Moreover, the court considered that holding the meetings at her school would not be in the best interest of the child. The existing contact arrangements allowed the applicant to take the child to any place outside of her domicile but the applicant had himself taken the decision not to come to see his daughter. The court found no instances of the mother hindering contact with the child in the period under consideration. 29. On 19 August 2010 the Gliwice Regional Court quashed the above decision and remitted the case to the lower court. The court pointed to the fact that the negative attitude of the child towards the applicant had clearly been influenced by her mother, who in reality had been opposed to any meetings with her father. The girl was twelve years old and did not know her father. In such circumstances the District Court had concluded too early that the meetings had not been taking place because of the applicant’s own decision to stop coming to them. 30. In his application of 19 January 2011 the applicant reiterated his previous request that therapy sessions be ordered for his daughter, pointing out that this solution had been proposed by experts. The applicant requested that the court specify the exact place where the therapy was to take place. In another application the applicant requested that the court examine the validity of various medical certificates which had been used by his former wife to justify her absences from the hearings. The applicant suggested that his former wife had been working normally and had been avoiding attending court in order to prolong the proceedings. 31. On 27 April 2011 the Gliwice Regional Court dismissed the applicant’s complaint under section 5 of the Law of 17 June 2004 on complaints about a breach of the right to an investigation conducted or supervised by a prosecutor and to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki). 32. The hearings scheduled for January and May 2011 were adjourned because of the applicant’s former wife’s absence; she presented doctor’s certificates. Following a request by the court, the doctor who had issued the certificates explained that the applicant’s former wife should avoid stressful situations. Thus she could not give evidence even in proceedings at her own home. Afterwards the applicant’s former wife did not pick up notifications of the scheduled hearings. In October 2011 she presented a medical certificate confirming the impossibility for K. to attend hearings for the following seven months. As a result the court decided to refrain from examining K.
33. On 18 May 2012 the Tarnowskie Góry District Court, after reconsidering the case, ordered the applicant and his former wife to undergo therapy. The court established that the applicant had seen his daughter twice since February 2006, in June 2009 when he came to her school and in May 2010. In both instances, however, the applicant had been unable to engage in any conversation with her. The therapy ordered by the court could ameliorate the relation between the parents and help to rebuild the father‐daughter relationship. The court reiterated that, taking into account the best interest of the child, the meetings should not take place at her school. 34. On 17 April 2013 the Gliwice Regional Court partly amended the decision. It decided that for the duration of the therapy, but for a maximum of eight months, the applicant’s contact with his daughter should be limited to phone calls only. 35. The applicant applied for a writ of enforcement and on 20 December 2013 the Tanowskie Góry District Court allowed his application. However, on 14 May 2014 the Gliwice Regional Court overturned the writ of enforcement ruling, finding that the final order to undergo therapy of 17 April 2013 did not lend itself to forcible enforcement by the State. 36. Overall only two therapeutic sessions took place, on 26 September and 24 October 2013. In the meantime, the applicant asked the court to impose a fine on his former wife for not attending the sessions with a psychologist. In November 2013 the parties stopped coming for the therapy. On 12 March 2014 the court heard the parties. It also enquired with the psychologist who had conducted the therapy about a possibility of resuming it. However, the therapist informed the court that she had resigned in view of the conflict between the parties. On 11 June 2104 the applicant withdrew his motion to fine his former wife. In consequence the court discontinued this set of proceedings. 37. On 22 November 2013 the applicant’s former wife applied to the court to amend the order of 14 April 2013 by changing the psychologist with whom she had been ordered to undergo therapy with since she considered her incompetent. 38. The applicant’s former wife was present at the hearing on 15 April 2015. Afterwards, for the following year, she sent to the court various medical certificates proving her inability to appear before it. On 7 May 2015 the court requested an expert opinion on the applicant’s former wife’s medical condition. 39. On 18 July 2015 the court obtained an expert opinion which concluded that the illnesses cited by the applicant’s former wife had not been serious enough to warrant such a long-term inability to appear before a court. 40. On 20 January 2016 the Tarnowskie Góry District Court ordered the parties to undergo therapy, but left the choice of therapist to them. The court took also into account a letter of 24 March 2014 from the then psychologist, who confirmed that that therapy had no prospect of success. 41. On 6 October 2016 the Gliwice Regional Court examined an appeal lodged against the above decision and discontinued the case as the applicant’s daughter had turned eighteen and was no longer subject to parental authority. 42. Between 2001 and 2016 the applicant wrote numerous complaints to the Minister of Justice, the Ombudsman, the presidents of the courts dealing with his cases, the head of the Medical Board, and the Helsinki Foundation for Human Rights. He received replies in particular from the presidents of the courts, who on each occasion expressed the view that the courts had dealt with his cases diligently and speedily. The Ombudsman also intervened on his behalf on several occasions. RELEVANT LEGAL FRAMEWORK AND PRACTICE
43. The relevant domestic law concerning the enforcement of a parent’s contact rights in force prior to 13 August 2011 is set out in the Court’s judgment in P.P. v. Poland (no. 8677/03, §§ 69-74, 8 January 2008). 44. Before 13 August 2011, the general provisions of the Code of Civil Procedure (“the CCP”) on the enforcement of non‐pecuniary obligations were applicable to the enforcement of court decisions on parental rights or access rights. If a court obliged a parent exercising custody rights to ensure the other parent’s access to a child, Article 1050 of the CCP was applicable. That article provided:
“1. If the debtor is obliged to take measures which cannot be taken by any other person, the court in whose district the enforcement proceedings were instituted, following an application by a creditor and after hearing the parties, shall fix the time‐limit within which the debtor shall comply with his obligation, on pain of a fine ...
2. If the debtor fails to comply with this obligation, further time limits may be fixed and further fines may be imposed by the court.”
45. The Amendment of the Code of Civil Procedure Act of 26 May 2011 introduced provisions dealing specifically with the enforcement of judgments granting contact rights in respect of children (Articles 59815 to 59821). As of 13 August 2011, those provisions provide that a court decision on access arrangements serves as an enforceable title for an application to a court to impose a penalty payment (oznaczona suma pieniężna) on a party refusing to comply with those arrangements in respect of each and every failure to do so, to be paid to the person to whom contact rights have been granted. THE LAW
46. The applicant complained that the Polish authorities had failed to take effective steps to enforce his right to contact with his daughter and that the process of enforcing the courts’ decisions had lasted too long. He alleged a violation of Articles 6 § 1 and 8 of the Convention. However, the Court considers that the applicant’s complaints fall to be examined under Article 8 of the Convention, which provides as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence. 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.”
47. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 48. The applicant submitted that his family rights had been breached because of the inefficiency and delays for which the domestic authorities should be held responsible. His attempts to enforce the final decisions of the courts and to have fines imposed on his former wife for hindering his contact with his daughter had been ineffective and the proceedings had suffered from lengthy delays. From the beginning of the proceedings, the court experts and the guardian had warned the courts that the mother had been manipulating K. and preventing the applicant from maintaining his relationship with her. However the authorities had not reacted to those warnings with the necessary urgency and firmness. The ineffectiveness and inactivity of the authorities had resulted in the total rupture of the bond between the father and the child. The domestic courts had also failed to adequately react to his former’s wife’s actions aimed at protracting the custody proceedings by submitting various medical certificates to avoid appearing before the courts. 49. The Government submitted that the authorities had taken all the appropriate steps that could reasonably have been required in the circumstances of the case. The domestic courts had acted in the best interest of the child and on several occasions had modified access arrangements in reaction to developments in the case. They had examined the applicant’s applications and on two occasions had imposed fines on the applicant’s former wife. The bitter conflict between the parents and the attitude of the mother had made it very difficult for the authorities; they nevertheless had made efforts to improve the relations between the parents by ordering therapy. 50. The Government also considered that the applicant had not taken all possible steps to win his daughter over and in fact had in the end stopped coming to the meetings. The situation had become ever more difficult as the child herself had been hostile to the applicant; although the Government admitted that the child’s attitude had been inspired by her mother. 51. The Government were of the opinion that the authorities had acted swiftly and with exceptional diligence and had taken into account the sensitive nature of the case. However, taking expert evidence, hearing evidence from the parties and teachers, and taking other procedural actions had necessitated some time. The Government asserted that the length of the proceedings had not affected the applicant’s emotional and family ties with his daughter since these had hardly ever developed and had been broken early on. (a) Relevant principles
52. The Court notes that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of “family life” within the meaning of Article 8 of the Convention (see, among other authorities, Monory v. Romania and Hungary, no. 71099/01, § 70, 5 April 2005, and Fuşcă v. Romania, no. 34630/07, §§ 32-37, 13 July 2010 with further references). 53. The essential object of Article 8 is to protect an individual against arbitrary action by the public authorities. There are in addition positive obligations inherent in effective respect for family life (see Manic v. Lithuania, no. 46600/11, § 100, 13 January 2015). In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299-A, and V.P. v. Russia, no. 61362/12, § 125, 23 October 2014). 54. Where the measures in issue concern parental disputes over their children, however, it is not for the Court to substitute itself for the competent domestic authorities in regulating contact questions, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation. In so doing, it must determine whether the reasons purporting to justify any measures taken with regard to an applicant’s enjoyment of his right to respect for family life are relevant and sufficient (see, amongst other authorities, Olsson v. Sweden, 24 March 1988, § 68, Series A no. 130, and M. and C. v. Romania, no. 29032/04, § 124, 27 September 2011). 55. The obligation of the national authorities to take measures to facilitate contact by a non-custodial parent with children after divorce is not, however, absolute (see, mutatis mutandis, Hokkanen, cited above, § 58). 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 (see Cristescu v. Romania, no. 13589/07, § 58, 10 January 2012). Moreover, the passage of time can have irremediable consequences for relations between the child and the parent who do not cohabit (see, for example, Kuppinger v. Germany, no. 62198/11, § 102, 15 January 2015). 56. In examining whether non-enforcement of access arrangements ordered by the domestic court amounted to a lack of respect for the applicant’s family life, the Court must strike a balance between the various interests involved, namely the interests of all persons involved and the general interest in ensuring respect for the rule of law (see D. v. Poland (dec). no. 82115/02, 14 March 2006). Lastly, the child’s best interests must be the primary consideration and may, depending on their nature and seriousness, override those of the parents (see, among many other authorities, Olsson v. Sweden (no. 2), 27 November 1992, § 90, Series A no. 250, and Płaza v. Poland, no. 18830/07, § 71, 25 January 2011). 57. A lack of cooperation between parents who have separated is not a circumstance which can of itself exempt the authorities from their positive obligations under Article 8. It rather imposes on the authorities an obligation to take measures that would reconcile the conflicting interests of the parties, keeping in mind the paramount interests of the child (see Z. v. Poland, no. 34694/06, § 75, 20 April 2010, and G.B. v. Lithuania, no. 36137/13, § 93, 19 January 2016). The Court has observed, in this context, that in cases concerning the enforcement of contact rights mediation would have been desirable as a mean of promoting cooperation between all parties to the case (see Cengiz Kılıç v. Turkey, no. 16192/06, § 132 in fine, 6 December 2011). Family mediation may in particular be an efficient instrument for the implementation of rights protected under Article 8 of the Convention (see Kacper Nowakowski v. Poland, no. 32407/13, § 87, 10 January 2017). (b) Application of these principles to the present case
58. The Court considers that the relationship between the applicant and his daughter amounted to “family life” within the meaning of Article 8 § 1 of the Convention. That has not been disputed. 59. In the light of the above principles, what is decisive in this case is whether the Polish authorities took all the necessary steps to facilitate the enforcement of the contact arrangements as specified on 11 December 2000, 23 November 2001 and 22 April 2005 (see paragraphs 6 7 and 19 above). 60. The Court notes that already in 2001 the applicant had brought to the attention of the domestic authorities the fact that the visits had not been taking place, or the conditions around those visits had been inacceptable. In May 2001 the court-appointed guardian informed the court that the mother had been actively manipulating the child and, in many ways, making it impossible for the applicant to spend time with his daughter (see paragraph 9 above). The visits were taking place at the home of the child’s mother, in her presence and that of her parents and other persons all openly hostile to the applicant. The expert considered the conditions of those meetings to be harmful to the child. In the period between 2001 and 2004 the applicant could not visit his daughter in calm conditions conducive to construction of a relationship. That failure took place during the crucial period for a small child’s development. 61. In November 2001 the first attempt to obtain a ruling on imposition of a fine on the applicant’s former wife failed. In those circumstances the applicant reapplied to have his contact rights enforced and to have a fine imposed on his former wife in July 2002. In spite of the urgency of the matter, it took the domestic court one year to reaffirm the obligation on the applicant’s wife to comply with the contact arrangements. However it did not impose any financial penalty (see paragraph 13 above). The case lay dormant for another year until the court issued the first order fining the applicant’s former wife for her failures to respect the visiting arrangements (decision of 1 June 2004, see paragraph 14 above).The Court notes that there is no explanation either by the domestic authorities or by the Government for the inactivity of the courts during this period. 62. The Court thus considers that during this first stage the applicant actively sought to build a meaningful relationship with a very small child in spite of the open hostility of the child’s mother. He attempted to access all the legal avenues accessible to him. However the courts for most of the time were inactive. In consequence, as established by the experts, by September 2004 the bond between the applicant and the child had been broken (see paragraph 16 above). 63. The Court further discerns a second stage during which the applicant attempted to rebuild his relationship with the child. In particular the applicant applied to change the custody order; those proceedings lasted from June 2003 to April 2005. During that time the court waited one year for an expert opinion (see paragraphs 15 - 19 above). The proceedings to enforce this decision lasted until February 2006, when the court issued the second and last decision to impose a fine on the applicant’s former wife. Following the appeal, examined six months later, the size of the fine had been lowered (see paragraph 21 above). The Court notes that these excessive periods of inaction on the part of the domestic courts have not been explained. 64. After February 2006 the applicant no longer came to the meetings in order to avoid creating a stressful situation for his daughter, who had become hysterical every time she had seen her father. During this last stage of the proceedings he attempted to rebuild his relationship with K. through means other than regular meetings. The Court notes that the fourth custody proceedings lasted from May 2009 until April 2013 (see paragraphs 27 to 35 above). During this period the courts issued several decisions but their only outcome was to order the applicant and his former wife to undergo therapy. The latter failed mostly due to the applicant’s former wife hostile attitude. The Court further observes that the applicant’s former wife had for many years avoided appearing before the court by sending health certificates which only in 2015 were object of the court’s scrutiny (see paragraphs 30, 32, 39 above). In the end the domestic court discontinued the case as the child reached majority and could no longer be covered by custody orders (see paragraph 41 above). 65. The Court notes that the parties were deeply conflicted and the child’s mother was determined not to allow the applicant to establish and maintain a relationship with his daughter. The task of the domestic courts was therefore difficult. According to the Court’s settled case-law the State’s obligations in relation to Article 8 are not of result to be achieved but are an obligation to use best endeavours (see Pascal v. Romania, no. 805/09, § 69, 17 April 2012). However, lack of cooperation between separated parents is not a circumstance which can of itself exempt the authorities from their positive obligations under Article 8. It rather imposes on the authorities an obligation to take measures that would reconcile the conflicting interests of the parties, keeping in mind the paramount interests of the child. 66. In the instant case the applicant obtained final rulings on visiting arrangements, used available remedies to enforce them and remained active for seventeen years, seeking assistance from the authorities in the enforcement of their decisions. As shown above, during this time there were delays, ineffectiveness, and lack of diligence in dealing with the case. What is more, the delays in examining the applicant’s requests had irreversible effects on the emotional ties between the applicant and his minor daughter and resulted in his inability to build and maintain family ties with her. The Court considers that in the circumstances of this particular case, where the applicant was for a prolonged period of time deprived of contact with his daughter, where the latter was in her mother’s custody and where the mother was trying to turn her daughter against the father, as acknowledged by the domestic courts, such applications on the part of the applicant, in order to be effective, should have been treated with the utmost priority. 67. In the applicant’s case the authorities failed to take practical steps that would have, firstly, encouraged the parties to cooperate in the enforcement of the access arrangements and, secondly, to secure concrete and appropriate assistance by competent State agents within a specific legal framework suited to the needs of separated parents and their underage child. 68. The Court considers that the rarity and the insignificance of the fines imposed, combined with the delays in the proceedings, constituted important factors that rendered the remedies accessible to the applicant ineffective. At the same time the Court considers that the applicant displayed due diligence in handling those matters; he did everything that he could reasonably have been expected to do to enforce the courts’ decisions regulating contact with his daughter. 69. The Court concludes that in the circumstances of the case the domestic authorities failed in their positive obligation to provide the applicant with prompt and effective assistance which would make it possible for him to effectively enforce his parental and contact rights. There has accordingly been a violation of Article 8 of the Convention. 70. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
71. The applicant claimed 100,000 Polish zlotys (PLN – equivalent to 23,000 euros (EUR)) in respect of non-pecuniary damage. 72. The Government considered the claim to be exorbitant. 73. The Court awards the applicant EUR 10,000 in respect of non-pecuniary damage. 74. The applicant also claimed PLN 12,600 (approximately EUR 3,000) for the costs and expenses incurred before the domestic courts and PLN 4,200 (approximately EUR 1,000) for those incurred before the Court. 75. The Government contested the claims. 76. The Court considers that the costs and expenses relating to the domestic proceedings, as far as they concern the enforcement proceedings found to give rise to a violation of the Convention and the costs of the Strasbourg proceedings were incurred necessarily and must accordingly be reimbursed in so far as they do not exceed a reasonable level (see Ignaccolo-Zenide v. Romania, no. 31679/96, § 121, ECHR 2000‐I). Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 2,000 covering costs under all heads, plus any tax that may be chargeable on the applicant. 77. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 9 July 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Renata Degener Linos-Alexandre SicilianosDeputy RegistrarPresident