Déjà vu: Mother’s rights breached by failure of Polish courts to enforce return orders

woman in forest

It is a cliché but quite true: there’s no point in having rights if you can’t enforce them. It can also be true that there’s no point in having rights if you can’t enforce them within a reasonable time.

Back in November I wrote here about a case in which a father’s right to respect for his family life under Article 8 of the European Convention on Human Rights had been breached by the failure of the Slovakian courts to enforce an order that his two children be returned to Ireland. With a sense of déjà vu I have now come across a case in which a mother’s Article 8 right was found to have been breached, this time by the failure of the Polish courts to enforce two orders made by the Irish courts requiring the return of her daughter to Ireland.

The case is Oller Kaminska v. Poland, the judgment in which was handed down by the European Court of Human Rights (ECHR) on 18 January. The background to the case was that the mother, who is Irish, and the father, who is Polish, were married and had a daughter in March 2000. At that time they lived in Poland, but they moved to Ireland in 2006. The marriage broke down, and the father moved back to Poland in 2009, leaving the child with the mother in Ireland.

In June 2009 the father went to Ireland on holiday and said he intended to take the child to Poland for the summer holidays. The mother, concerned whether the father would return the child to Ireland after their holidays in Poland, instituted proceedings in the Irish court, seeking a declaration that the habitual residence of the child was in Ireland and that the child was to return to Ireland on 15 August 2009. On 2 July 2009 the Irish court issued a consent order stating that the child could visit Poland between 7 July and 15 August 2009 with her father, and established that her habitual residence was in Ireland. The father failed to return the child on 15 August.

The mother went back to the Irish court, which made an order on 15 September 2009 stating that the child’s residence should be with her mother in Ireland, and granting her sole custody. The court also ordered the return of the child to the mother.

It would take too long to describe what happened over the next three years, but suffice to say that the mother made strenuous and repeated efforts to secure the return of the child to Ireland, both in the Irish court (which made a further return order in September 2011) and in the Polish courts. During that time the Polish courts failed to enforce the Irish return orders, and the mother only secured the child’s return to Ireland in September 2012 by going to Poland and taking her back to Ireland.

The mother then issued proceedings in the ECHR, alleging that she had suffered a violation of her right to respect for her family life on account of the Polish authorities’ inability to swiftly reunite her with her daughter, despite the two Irish court orders, after she had been abducted by her father. The ECHR agreed that the Polish authorities failed to act swiftly to enforce the Irish judgments, as required under the EU law. Accordingly, there had been a breach of Article 8. The mother was awarded fifteen thousand euros damages, plus ten thousand euros costs and expenses.

So, we have two cases in quick succession in which ‘foreign’ courts had failed to enforce return orders. First, the Slovakian courts were found wanting, now the Polish courts. It is quite clear, and I’m sure recognised by all, that procedures relating to the return of abducted children, including any appeals, should be dealt with swiftly. If they are not, then the delay of itself can cause irreparable damage. Happily, in this case the mother was reunited with the child, but in other cases, such as the Slovakian one I wrote about in November, the delay can completely thwart the will of the court, and the intention of the procedures put in place to deal with international child abduction.

All of this does make one wonder just how well these international procedures are working, and whether it is time for them to be ‘beefed up’.

The full report of Oller Kaminska v. Poland can be found here.

 

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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2 comments

Helen Dudden - January 22, 2018 at 4:35pm

This is not unusual. Cost of these returns is tremendous. I know personally how difficult it can be in some EU Countries.
There has to be a better way. No matter how many court orders you have, the EUROPEAN Country has to be willing to carry out the orders.
Back in 2006 there was a pro bono produced by Freshfields, for ECAS, suggesting that we work together, court to court, social workers and Judges.
Seems as easy answer, but never tried.

Helen - February 5, 2018 at 7:53pm

In some countries, little changes in the subject of Child Access and Abduction.
It was with our personal situation, the other family did not wish to mediate, or give way after the illegal retention.
I think the case of Beth Alexander and her twins in Vienna, still is ongoing. An ex partner who controls the situation.
Will there ever be a way to prevent the total rejection, of any progress allowing a child to know their families in both sides?
From my experience, I would say that it will take some kind of miracle.
(*Comment moderated)

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