The interpretation and the decision issued by the District Court in Sopot are contrary to the European Convention on Human Rights, which has been signed by Poland, and the judicature of the European Court of Justice, e.g. Neulinger and Shuruk v. Switzerland (application No. 41615/07) and Šneersone and Kampanella vs. Italy (application No. 14737/09), which stated that the Court ‘must ascertain whether the domestic courts conducted an in-depth examination of the entire family situation and of a whole series of factors, in particular of a factual, emotional, psychological, material and medical nature, and made a balanced and reasonable assessment of the respective interests of each person, with constant concern for determining what the best solution would be for the abducted child in the context of an application for his return to his country of origin.’
The dominant opinion in the Polish judicature is that the court resolving the question of attributing the parental authority to one of the parents should consider, having in mind the age of the child, which of the parents gives a better guarantee of the proper care for his or her physical and spiritual development. In particular, during the period of infancy and early childhood, it is advisable that a child should remain in the mother’s care, due to her psychological constitution, the greater affection and promptness to show it as well as the care for fulfilling the daily needs of a child, which is natural for a mother (see the ruling of the Supreme Court of 21 November 1952, ref. No. C 1814/52).
According to the decision of the Supreme Court of 8 November 2000 (ref. No. III CKN 1345/2000), a hazard to the emotional condition of a child and exposing him or her to strong psychological emotions fulfil the definition of a risk to psychological harm for the purpose of Article 13(b) of the Hague Convention.
The concept of the ‘habitual residence’ under Article 8(1) of the Council Regulation (EC) No. 2201/2003 from 2003 concerning justification and the recognition and enforcement of judgements in matrimonial matters and the matters of parental responsibility as well as the judicature of the European Court of Justice (e.g. C-523/07 ‘A’ and C-497/10 ‘Mercredi vs. Chaffe’) should be interpreted in such a way that it concerns a place that reflects a certain level of child’s integration into the family and social environment. To this purpose, the time, frequency, conditions, and reasons for the stay on the territory of a member state and the move to the state, the citizenship of the child, the place and conditions of schooling, the command of language and family as well as the social relationships of the child in the state have to be taken into consideration. The tasks of the domestic court include the determination of the habitual residence of the child, taking into account all the circumstances that are characteristic for the case. Moreover, the environment of a small child includes primarily the family environment, which is determined by the persons who live with and are responsible for the child. This applies in particular in the situation when a child is an infant. A baby shares the social and family environment of the circle of people he or she depends on. As a consequence, if (…) an infant is cared for by the mother, it is necessary to assess the integration of the mother in her family and social environment. In this regard the factors determined in the judicature of the Court, such as the causes for the move of the mother of the child to another member state, the languages known to the mother and her geographic and family origins may become significant.
Mr Borys Budka, Minister of Justice,
Mr Andrzej Seremet, Attorney General,
Dear Mr President,
Dear Mr Minister,
Dear Mr Attorney General,
Please find below our complaint against the actions of the state authorities of the Republic of Poland within the application of European and international law regulations concerning the protection of the rights of children in relation to the controversial case under the Hague Convention on the Civil Aspects of International Child Abduction from 1980 (hereinafter referred to as ‘Hague Convention’).
The case was handled by the District Court in Sopot (ref. No. III Nsm 144/14). The Court ordered the mother to return the children aged 2 and 5 (Polish nationals) to the father living in Belgium with the decision of 4 December 2014. The Court issued that appalling sentence despite the protest of the District Public Prosecution Office in Sopot, which keeps conducting an investigation into the sexual abuse of the children by the father, and despite the results of the hearing of the older child in a blue room and the opinion of a licensed psychologist as well as an additional opinion issued by a psychologist, a psychiatrist of children’s psychology, and a paediatrician. During the hearing in the blue room, ‘the older son described in the manner that is characteristic for a child, showing his disgust and negative emotions, that the father had inserted his member into the child’s mouth and anus’.
The decision of the Court to dismiss motions for evidence, namely the motions for obtaining an opinion of a licensed expert to ascertain if the children could and should make contact with the father and for preparing at litem (investigation) report, seemed particularly shocking, as the Court considered them to be irrelevant for the ruling (the Judge said during the hearing: ‘I do not believe psychologists.’).
Notwithstanding the compelling and sound arguments for refusing the return of the children to the father in Belgium under Article 13(b) of the Hague Convention (if there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation (…)’), the District Court in Sopot omitted such circumstances.
The attorney representing the mother of the children filed an appeal against the decision, which was to be examined by the Regional Court in Gdańsk on 15 May 2015. Unfortunately, the Regional Court in Gdańsk postponed the date of the hearing without determining any measures to protect the children.
The District Court in Sopot has already ordered the guardian at litem to take away the children from the mother. As their legal guardian, the mother has not returned the children to the father so far, in order to protect them; however, she has been forced to hide herself from the police, awaiting a valid sentence.
In the meantime, the District Court in Sopot, Criminal Department (ref. No. Kp 339/14), when analysing the case of sexual abuse already in November 2014 ruled as follows: ‘According to the Court, the Prosecutor should (…), if the findings are positive, take actions aimed at finding, apprehending, and punishing the culprit promptly’. In spite of the ruling of the Court, the District Public Prosecution Office in Sopot has failed to file charges against the alleged child abuser, although it has stated that the ‘minor child was subjected to other sexual activities in the manner described by him during the hearing’. Instead, the police and the Public Prosecution Office in Sopot are involved now in the search for the mother and children to return them to the father in Belgium and to bring the mother to court in Belgium, as she is accused of the parental child abduction.
The examination of the case and the ruling of the District Court in Sopot are contrary to the European Convention on Human Rights, the Charter of Fundamental Rights of the European Union, the judicature of the European Court of Justice, the European Court of Human Rights, and the judicature of the Supreme Court in Poland.
Moreover, it is noteworthy that in that case the courts in Belgium and Poland keep examining the question of the country of origin (the children have both the Polish and German citizenships, while they have no Belgian citizenship and, even though born in Belgium, they have never had any social or family relations with that country or community). Due to the international aspect of the job performed by the children’s mother (an officer of the European Commission holding a doctoral degree in economic sciences) and as the children have no command of the Belgian official languages, it was not possible to provide them with psychotherapeutic assistance in that country. In this context, is it possible to speak about the habitual residence in Belgium and demand the return of the 2- and 5-year-old children to a foreign state where they cannot be guaranteed with the suitable medical and psychotherapeutic care (in the diagnosed condition of the posttraumatic stress disorder (PTSD)) or with any contacts with the mother?
Therefore, we request that:
- the institution of the independent Court in Poland be made the guarantor of respecting the rights and welfare of the children,
- the European and international law be enforced by the Polish courts with due care and diligence,
- the culprits of the spreading crime of paedophilia be condemned and severely prosecuted.
Children are not objects!