Posts
Jeremy D. Morley
In the case of Oller Kamińska v. Poland, determined on
January 18, 2018, [2018] ECHR 70, the European Court of Human Rights
(First Section), sitting as a Chamber, has ruled that the Polish authorities violated
their obligations to return an abducted child under the Hague Convention and the Brussels II bis Regulation.
The Court held that the Polish authorities
had
failed to act swiftly to enforce an Irish judgment, which had determined, on
consent of both parents, that a child was habitually resident in Ireland and
was to travel to Poland in 2009 for a mere visit with her father, and a
subsequent Irish order requiring the child’s return to Ireland after the father
wrongfully retained her in Poland.
After three years of intense litigation in Poland that
was ultimately unsuccessful, and litigation in Ireland, the mother traveled to
Poland and unilaterally removed the child from that country and returned her to
her habitual residence in Ireland. Further litigation then ensued in both
jurisdictions.
The mother then brought suit before the European Court
alleging that the Polish courts had violated the European Convention for the Protection of Human Rights and Fundamental Freedoms.
The European Court and the Government of Poland defended the conduct of
its courts by arguing that the mother had kidnapped
her daughter in 2012 and removed her to Ireland, and that her actions had been
contrary to the principle of the best interests of the child. The European
Court rejected all of the Polish Government’s arguments and held that, “The
Court reiterates that in cases of this kind the adequacy of measures taken by
the authorities is also to be judged by the swiftness of their implementation;
they require urgent handling as the passage of time and change of circumstances
can have irreparable consequences for relations between the children and the
parent who does not live with them.” It held further that held that specific,
streamlined proceedings may be required for the enforcement of return orders -
be it under the Hague Convention or the Brussels II bis Regulation
- for a number of reasons. Without overlooking the fact that enforcement
proceedings have to protect the rights of all those involved, with the
interests of the child being of paramount importance, the Court noted that it
is in the nature of such proceedings that a lapse of time risks compromising
the position of the non-resident parent irretrievably. Moreover, as long as the
return decision remains in force, the presumption stands that return to the
habitual residence is also in the interests of the child.
As a result, the Court ruled that the mother’s right
to respect for her family life did not receive effective protection.
The case is unfortunately in line with the determination of a Canadian court in Nowacki v. Nowacki in 2015 that the Polish courts had seriously misapplied the
grave risk exception to the obligation to return abducted children to their
habitual residence. See my article on that case, Poland's Violation of the Hague Abduction
Convention, at: www.internationalfamilylawfirm.com/2015/02/polands-violation-of-hague-abduction.html
