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Wdowiak v Poland - 2876-12 (Judgment (Merits and Just Satisfaction) - Court (Fourth Section)) [2017] ECHR 133

Judgment of the European Court of Human Rights as to whether the state of Poland had violated the applicant’s article 8 right to family life by failing to take sufficient steps to enforce his rights to spend time with his son. The Strasbourg court found no such violation.

The issue in this case before the European Court of Human Rights was whether the state of Poland had violated the applicant's article 8 right to family life by failing to take sufficient steps to enforce his rights to spend time with his son. The Strasbourg court found no such violation.

The application to the Strasbourg court had followed a long history of animosity between the applicant and the mother of his child, with whom the child lived. In the decade prior to the Strasbourg application, there had been repeated family proceedings in the Polish courts in which the applicant had sought greater access rights to his son, resisted by the mother. At one point, the mother had unlawfully removed the child to Germany, but the child was returned under the Hague Convention. During the course of the many proceedings, at various times, the Polish courts had ordered that the applicant was to have visiting rights (though at various points this was ordered to be supervised contact) and ordered the applicant and the mother to have counselling, with which the mother refused to engage. At another time, the Polish courts, considering that the conflict between the parents meant that it would not be possible for them to carry out their parental responsibilities jointly, limited the applicant's parental rights only to the most important decisions on his son's health, education and upbringing. The Polish courts also ordered that the mother was to pay a fine each time the applicant was denied his access rights.

Before the Strasbourg court, the applicant argued that the Polish courts had limited themselves to regulating contact arrangements without taking any effective steps to enforce them, and had been unjustified in limiting his parental authority. The Government argued that the domestic authorities had taken all the necessary steps that could be reasonably expected of them in the circumstances of the case to facilitate contact between the applicant and his son, having considered the applications to modify contact arrangements and having dealt with enforcement requests by ordering the mother to pay fines. Throughout, the domestic courts had sought expert opinion to determine the best interests of the child. The state could not be held accountable for the mother's refusal to engage in counselling or to cooperate. 

The Strasbourg court reminded itself that the obligation of national authorities to take measures to facilitate contact by a non-custodial parent with children is not absolute. The key consideration is whether those authorities have taken all necessary steps to facilitate contact such as can reasonably be demanded in the circumstances of each case. The domestic courts must strike a balance between the interests of the child, the parents, and the general interest in ensuring respect for the rule of law. Although a lack of cooperation between parents is not a circumstance which can of itself exempt authorities from their positive obligations under article 8, it does impose 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.

The Strasbourg court ruled that the domestic courts had taken all reasonable steps to enable the applicant to have contact with his son. Whilst it was unfortunate that those efforts had proved to have had little impact on the applicant's ability to participate effectively in his son's life, this was due to the mother's reluctance to allow contact, and also to the child's refusal to see his father.

Summary by Eirwen-Jane Pierrot, barrister, Field Court Chambers
____________________________________


FOURTH SECTION

CASE OF WDOWIAK v. POLAND
(Application no. 28768/12)

JUDGMENT

STRASBOURG
7 February 2017

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
 
In the case of Wdowiak v. Poland,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

András Sajó, President,
Vincent A. De Gaetano,
Nona Tsotsoria,
Krzysztof Wojtyczek,
Egidijus K?ris,
Iulia Motoc,
Gabriele Kucsko-Stadlmayer, judges,
and Andrea Tamietti, Deputy Section Registrar,

Having deliberated in private on 17 January 2017,
Delivers the following judgment, which was adopted on that date:

PROCEDURE
1.  The case originated in an application (no. 28768/12) 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 Robert Wdowiak ("the applicant"), on 2 May 2012.

2.  The applicant was represented by Mr A. Drozd, a lawyer practising in Bydgoszcz. The Polish Government ("the Government") were represented by their Agent, Ms J. Chrzanowska, of the Ministry of Foreign Affairs.

3.  The applicant alleged that the domestic authorities had failed to take effective steps to enforce his right to have contact with his son.

4.  On 15 January 2015 the application was communicated to the Government.

THE FACTS
Article I. I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1975 and lives in Tryszczyn.

Section 1.01 A.  Early proceedings regarding the applicant's access rights
6.  On 2 December 2002 the applicant's son J. was born. At that time the applicant lived with the boy's mother, M.K., in a flat belonging to her parents. In 2003 the applicant moved out after a disagreement with M.K.'s father.

7.  In 2005 the applicant filed a court complaint that M.K. was hindering his contact with his son.

8.  On 2 December 2005 the parties reached a friendly settlement before the District Court detailing when the applicant was able to visit the child. It was agreed that the applicant could see J. on two Saturdays and two Sundays each month from 10 a.m. to 6 p.m., as long as the meetings had been arranged with M.K. the preceding week. The applicant could also take J. on holiday for two weeks during the summer. It was arranged that he would pick the child up from M.K.'s place of residence and take him back.

9.  In 2006 the applicant's meetings with his son were on some occasions made impossible by the mother, but most of them took place. A few of the visits were cancelled because the child was ill.

10.  On 7 June 2006 M.K. applied to change the applicant's access rights. M.K. wanted to reduce the amount of time the applicant could spend with J. She also indicated her intention to move to Germany with her son for financial reasons.

11.  On 6 September 2006 the applicant applied to increase his access rights. He stated that M.K. had been interfering with his contact visits. The applicant asked the court to order that he be able to see his son twice a month from 10 a.m. on Friday to 7 p.m. on Sunday; one day at Christmas or Easter from 10 a.m. to 10 a.m. the next day; and three weeks in the summer holidays and one week in the winter holidays.

12.  At a hearing on 17 January 2007 M.K. withdrew her application and the Bydgoszcz District Court discontinued the proceedings. The applicant appealed, complaining that his application had still to be examined.

13.  On 29 March 2007 the Bydgoszcz Regional Court quashed the Bydgoszcz District Court's decision. The court considered that it had been a mistake to assume that the applicant had consented to the discontinuation of his application just because M.K. had chosen to withdraw hers. It was also established that the applicant's access rights were not being respected at the time because M.K. had moved to Germany with the child.

Section 1.02 B.  Abduction of the child and proceedings to enforce access rights
14.  On 16 January 2007 M.K. moved to Germany with the child without the applicant's consent. The parties disagreed on whether or not M.K. had informed the applicant of their address in Germany (the applicant submitted that she had not).

15.  The applicant initiated proceedings under the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 ("the Hague Convention"). On 23 November 2007 the Celle District Court in Germany ordered that the child be returned to Poland to the father or a guardian because under the Hague Convention the mother had abducted the child. The court also noted that the applicant and M.K. had joint custody of J. under Polish law.

16.  On 20 December 2007 the High Court in Celle dismissed an appeal by M.K. and ordered the return of the child to Poland. However, the court agreed that the child need not be handed over to the applicant. It stated that it would be enough to move back to Poland by the required date to comply with the court's order.

17.  On 14 January 2008 the German Central Agency communicated the above decisions to the Polish Ministry of Justice. The applicant was informed on 15 January 2008. The mother and the child returned to Poland on 6 January 2008.

Section 1.03 C.  Further proceedings after return of the child to Poland

18.  In January 2007 the applicant lodged an application for sole custody of J. and to establish J.'s place of residence with him.

19.  On 23 July 2007 M.K. lodged an application to grant her sole custody of the child and to establish J.'s place of residence with her.

20.  The proceedings were stayed between September 2007 and January 2008 owing to proceedings pending under the Hague Convention.

21.  On 1 April 2008 the Bydgoszcz District Court approved a settlement between the parties regarding the applicant's access rights. It was agreed that the applicant would be informed whenever J.'s place of residence changed. It was also agreed that he would be able to see J. every other Saturday and Sunday of the month from 9.30 a.m. to 6.30 p.m.; the second day of Christmas and Easter holidays at the same times; every 1 June from 4 p.m. to 7 p.m.; and for two weeks in the summer holidays from 1 to 15 July. The applicant was also under an obligation to allow M.K. to contact J. when the child was under his care and agreed that he would not see the child on 19 and 20 July 2008 as well as on 18 and 19 July 2009.

22.  According to the applicant's own statements before the domestic authorities contact took place according to the agreement.

23.  The agreement was further modified by the parties on 29 September 2009 by extending the amount of time the applicant could spend with his child. It was agreed that the applicant would spend two weekends per month from Friday to Sunday with his son, as well as three weeks in the summer holidays and one week in the winter holidays. The applicant was also to have telephone contact with the child.

24.  During the proceedings, on 11 March 2010, the Bydgoszcz District Court ordered the parties to have counselling. The applicant and M.K. began to go to counselling but M.K. pulled out. The court also ordered mediation to resolve their issues. The court ordered the preparation of several expert opinions. In particular the Regional Family Consultation Centre (Rodzinny O?rodek Diagnostyczno Konsultacyjny -"the RODK") submitted at least two reports by experts between 2008 and the beginning of 2010. The applicant contested the conclusions of the opinions.

25.  On 19 March 2011 the Bydgoszcz District Court dismissed the applicant's application to order that J.'s place of residence be with him, leaving the child in M.K.'s care. The court also dismissed M.K.'s application to decrease the applicant's visiting hours. The applicant and M.K. retained joint custody of J. The court established that in the period up to 2008 the bond between the applicant and the child had weakened considerably owing to a lack of contact between them. However, their relations had significantly improved because after the settlement of 1 April 2008 contact between the applicant and his son had taken place without disturbance. Afterwards, at the applicant's request, the contact arrangements had been modified on 29 September 2009. The court noted that the parties had had strong disagreements, had stopped talking to each other and should both be held responsible for the situation. According to the experts, the parents were not able to decide together on important aspects of the boy's life. Nevertheless, the court found that both parents loved their child very much and wanted the best for him. The court found no reasons to limit either parent's parental rights.

26.  The parties appealed.

27.  On 3 November 2011 the Bydgoszcz Regional Court partly granted the appeal lodged by M.K. and dismissed the applicant's appeal. It found it necessary to limit the applicant's parental rights only to the most important decisions on J.'s health, education, and upbringing. The court considered that the conflict between the parents meant it would not be possible for them to continue to carry out their parental responsibilities jointly.

28.  In the meantime, on 11 August 2010, the Bydgoszcz District Court increased the amount of child support payable by the applicant to M.K. from 400 Polish zlotys (PLN) to PLN 500 per month.

Section 1.04 D.  Recent proceedings
29.  On 19 May 2012 the applicant asked the court to further modify the contact arrangements. He submitted that his relationship with his son had got considerably worse since February 2012 and blamed the mother's behaviour. The applicant asked for visits to take place in the presence of a guardian. The applicant also sought enforcement of the contact arrangements ordered in the agreement of 29 September 2009 (see paragraph 46 below).

30.  On 20 December 2012 the court commissioned another report by experts from the RODK. The experts met the applicant, M.K. and J.

31.  On 15 February 2013 M.K. applied to annul the settlement of 29 September 2009. She stated that J. refused to see his father and, while waiting for the experts' report, it would be in his best interests to no longer see his father.

32.  On 19 February 2013 the Bydgoszcz District Court applied an interim measure to limit the applicant's access rights and ordering that both the applicant and M.K. have counselling. The applicant was allowed to see his son at McDonald's or another public place for short visits in the presence of his mother or maternal grandparents. The applicant appealed.

33.  On 8 April 2013 J. was questioned in the presence of a psychologist. The boy, eleven years old at the time, stated that he no longer wished to see his father. He stated that the applicant had paid no attention to him during visits and that he had been allowed to play computer games all day.

34.  On 28 May 2013 the Bydgoszcz Regional Court quashed the interim order of 19 February 2013. The court ordered the parties to attend counselling and to submit attendance certificates to the court every two months. The court further emphasised the need to modify the way the father and the child communicated without suspending contact between them, which would lead to breaking the bond between them.

35.  On 13 June 2013 M.K. applied to change the access rights of the applicant agreed in the settlement of 29 September 2009. M.K. asked the court to order that contact should take place every other weekend and be in her or her parents' presence because J. had not seen the applicant for a long time and would feel unsafe with him. She also requested an interim measure from the court.

36.  On 7 June 2013 the Bydgoszcz District Court gave an interim measure. It stated that the applicant would have the right to see J. every other weekend for two hours on Saturday and two hours on Sunday in a public place and in the presence of M.K. or her parents. Upon appeal by the applicant the decision was amended by the Bydgoszcz Regional Court on 9 September 2013 by extending the length of the meeting to three hours. The visits were to take place in a neutral place, in the presence of M.K. or her parents, and with a guardian for the first three months.

37.  The applicant met his son in November 2013 in a McDonald's restaurant. The boy was accompanied by his mother and was aggressive and hostile to the applicant.

38.  On 3 March 2014 the RODK issued its report, recommending that the applicant and M.K. have counselling in order to learn to cooperate when making decisions about their son. The RODK also proposed that J. should consult a psychologist. It further observed that relations between the applicant and his son were strained because J. had a negative attitude towards the applicant and no longer liked to have contact with him. That attitude was the result of a negative image of the applicant that had been created under the influence of the mother.

39.  At a hearing on 24 June 2014 the applicant declared that he was no longer attending the meetings because of his son's disruptive and aggressive behaviour. The last meeting took place in November 2013.

40.  On 8 September 2014 the RODK issued another report which stated that the boy had been loyal to his mother and had turned away from the applicant.

41.  On 18 February 2015, after ineffective mediation, the court modified the contact arrangements by ordering longer meetings with the applicant. The court again ordered the parties to have counselling so they could learn how to reach agreement with each other. The court also noted that the applicant had the possibility to apply for imposing a fine on M.K. for non compliance with court orders. On 15 May 2015 the applicant appealed.

42.  The proceedings are still pending.

Section 1.05 E.  Enforcement proceedings
43.  On 31 January 2007 the applicant complained that the arrangements for meeting his child, as established by the agreement of 2 December 2005, were not being enforced. After the child was removed to Germany the applicant initiated proceedings under the Hague Convention (see paragraphs 14-17 above).

44.  On 1 April 2008 the court ordered M.K. to pay a fine if a contact meeting scheduled for 5 April 2008 did not take place. That and subsequent visits took place in accordance with the settlement of 1 April 2008.

45.  On 27 April 2012 the applicant brought a claim to enforce his access rights under Article 598(16) § 1 and § 2 of the Polish Code of Civil Procedure (Kodeks Post?powania Cywilnego – "the CCP"). He submitted that his relations with his son had worsened substantially since February 2012 for which he blamed the mother's behaviour. It appears that he withdrew the claim at an unspecified later date.

46.  On 16 May 2012 the applicant requested the assistance of a court guardian during his meetings with the child (see paragraph 29 above). On the same day the applicant brought a claim to enforce the arrangements for meeting his child, as determined by the settlement of 29 September 2009, by imposing a fine on the child's mother. The applicant submitted that M.K. had been making it impossible for him to call his son although that had been provided for by the settlement. Moreover, after November 2011, when his parental rights had been limited, M.K. had cancelled all his subsequent meetings with his son. Since March 2012 M.K. had started claiming that their child refused to meet him.

47.  By a decision issued on 19 February 2013 the Bydgoszcz District Court ordered that M.K. pay the applicant a penalty each time he was denied his rights to have access to J. as set down by the settlement of 29 September 2009. She was ordered to pay PLN 200 each time she interfered with the applicant's right to see J. and PLN 50 every time she did not allow them to converse by telephone on Wednesdays as scheduled. The court noted that there was no dispute about the fact that M.K. had prevented the applicant from seeing his son for about one year. M.K. lodged an appeal against the decision but it was dismissed on 26 June 2013 by the Bydgoszcz Regional Court. It appears that the applicant never applied to enforce that decision or to impose penalty payments on M.K.

Article II. II.  RELEVANT DOMESTIC LAW AND PRACTICE

48.  The relevant domestic law concerning the 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).

49.  Before 13 August 2011, the general provisions of 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 provides:

"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, on the motion of 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."

50.  The Law of 26 May 2011 on the amendment of the CCP introduced provisions dealing specifically with the enforcement of judgments granting visiting rights in respect of children (Articles 59815 to 59821). As of 13 August 2011, those provisions provide that a court decision on access arrangements shall serve as an enforceable title for a request to a court to impose a penalty payment (oznaczona suma pieni??na) on the 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 visiting rights have been granted.

THE LAW
Article III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

51.  The applicant complained under Articles 6 and 8 that the authorities had failed to take the necessary measures to secure respect for his family life. The Court considers that the complaint should be examined solely under Article 8 of the Convention which reads 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."

Section 3.01 A.  Admissibility
52.  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.

Section 3.02 B.  Merits
(a) 1.  The parties' submissions
53.  The applicant argued that the Polish authorities had been obliged to help him to secure his rights to visit his son, but they had failed to do so. The courts limited themselves to regulating contact arrangements without taking any effective steps to enforce them. Moreover, the domestic court had limited his parental authority, which had not been justified as it had been the mother who had abducted the child and taken him abroad, hindered his contact with his father, negatively influenced the child's view of his father and had refused to participate in counselling.

54.  The applicant submitted that he had been active in seeking the help of the courts, guardians and police and had been involved in numerous court proceedings since 2005. However, M.K.'s behaviour had not led to the necessary reaction from the courts which had only made her bolder. Moreover, the child had not seen a psychologist, although that had been requested by the applicant. The applicant concluded by saying that the authorities had failed to take any effective action to execute the contact arrangements properly and to secure his parental rights. His participation in his son's life was currently limited to paying support for the child.

55.  The Government argued that the domestic authorities had taken all the necessary steps that could be reasonably expected of them in the circumstances of the case to facilitate contact between the applicant and his son. The period in 2007 when the child had been removed to Germany by his mother had fallen outside the jurisdiction of the Polish authorities. Afterwards the courts had examined the applicant's applications to modify the contact arrangements. They had also dealt with the applicant's enforcement requests, in particular by ordering on 19 February 2013 that payment of PLN 200 be made to the applicant for each instance of non-enforcement of the agreement of 29 September 2009 (see paragraph 47 above).

56.  The domestic courts had sought the opinion of experts in order to determine the best interests of the child. The Government submitted that in the course of the proceedings between 2008 and 2015 at least five RODK reports had been prepared. Experts on psychology, psychiatry and education had been questioned by the courts.

57.  The Government further stressed that in 2001 the court had ordered the parties to have counselling. However, M.K. had refused to continue to go. The second order for counselling had been made on 18 February 2015. The courts had also ordered the parties to undergo mediation with the help of a professional mediator.

58.  In sum, the Government submitted that the authorities had done everything possible to maintain the father-son relationship. They noted that after March 2012 the applicant had himself decided to stop the visits because of his son's negative attitude towards him. The authorities had faced a particularly difficult situation where the parents had had conflicts with each other and the child had refused to see his father. In the circumstances of the case the Government argued that there had been no failure to act or any lack of sufficient activity on the part of the domestic authorities.

(b) 2.  The Court's assessment
(i) (a)  Relevant principles

59.  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 Fu?c? v. Romania, no. 34630/07, §§ 32-37, 13 July 2010 with further references).

60.  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).

61.  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).

62.  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).

63.  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 the applicant's son and his mother, those of the applicant himself and the general interest in ensuring respect for the rule of law (see D. v. Poland (dec). no. 82115/02, 14 March 2006). 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; G.B. v. Lithuania, no. 36137/13, § 93, 19 January 2016). 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 others, Olsson (No. 2), § 90, cited above and P?aza v. Poland, no. 18830/07, § 71, 25 January 2011).

(ii) (b)  Application of these principles to the present case

64.  The Court considers that the relationship between the applicant and his son amounted to "family life" within the meaning of Article 8 § 1 of the Convention. That has not been disputed.

65.  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 2 December 2005, 1 April 2008, 29 September 2009, 19 February 2013 and 27 June 2013.

66.  The Court finds necessary to examine the actions of the authorities in chronological order. The Court notes that the applicant and M.K. split up soon after their child was born in 2002. The applicant complained for the first time about difficulties in maintaining contact with his son in 2005. The courts reacted and in December 2005 the District Court accepted an agreement reached by the parties and regulated the applicant's visiting rights (see paragraphs 7 and 8 above). In 2006 meetings between the applicant and his child took place, albeit with minor disruptions. From January 2007 the applicant was deprived of any contact with J. for one year as the child had been taken by his mother to Germany. They returned only in January 2008 after a successful application of the Hague Convention mechanism. The Court thus considers that the situation in 2007 was not attributable to the Polish authorities.

67.  The Court notes that because the applicant's visiting rights had been obstructed by the child's mother at the beginning of 2008, the domestic courts secured a further agreement on 1 April 2008. The settlement also provided for a fine if M.K. failed to allow the applicant to meet J. on 5 April 2008 (see paragraphs 21 and 44 above). That settlement, amended on 29 September 2009, provided the applicant with visiting rights and for almost four years he made no complaints about visits not taking place.

68.  The conflict between the parties, however, grew deeper. The applicant and M.K. each applied to the courts to seek to strengthen their own rights to the detriment of the other parent. The domestic courts dealing with their claims suggested counselling, noting that the parents had not been able to communicate with each other or take important decisions about their son together. Such a conclusion led the domestic court on 3 November 2011 to take a decision to limit the applicant's parental authority over J. (see paragraph 27 above).

69.  In the light of the above considerations the Court considers that between 2005 and 2012 the Polish authorities were able to react effectively and ensure contact between the applicant and his son. The courts were aware of the conflict between the parties and noted the egotistic attitude of both parents, which prevented them from cooperating in the best interests of the child (see paragraph 25 above). The attempt to order them to have counselling failed.

70.  In February 2012 the applicant reported that a conflict had arisen between him and J., nine years old at that time, and that regular visits had stopped (see paragraph 29 above). At the same time M.K. informed the authorities that J. no longer wished to see his father. Both parties again seized the domestic courts to modify the access arrangements. In that difficult situation the domestic courts, after seeking the opinion of experts, modified the access arrangements, first on 19 February and then on 27 June 2013. J. was to see his father in public places only and in the presence of his mother and a guardian. In 2014 and 2015 further mediation and family counselling was ordered by the courts. On 19 February 2013 the court allowed the applicant's request to threaten M.K. with a penalty payment to the applicant each time a visit did not take place. During that period the Court does not discern any clear delay or period of inactivity attributable to the domestic court.

71.  The Court considers it unfortunate that all those efforts proved to have little impact on the applicant's right to participate effectively in his son's life, visit him regularly or take important decisions about him. The Court notes that the difficulties in enforcing the contact arrangements were largely due to the mother's reluctance to allow contact but also to the child's open hostility towards his father and his refusal to see him. The Court is mindful of the fact that contact and residence disputes are by their very nature extremely sensitive for all the parties concerned, and it is not necessarily an easy task for the domestic authorities to ensure enforcement of a court order where one or both parents' behaviour is far from constructive. In the present case the mother's uncooperative attitude, based on her manifest hostility towards the applicant, made it particularly difficult for the domestic authorities to take action to fully enforce the applicant's contact rights (see Krasicki v. Poland, no. 17254/11, § 90, 15 April 2014).

72.  Lastly, the Court notes that it was open to the applicant to request a domestic court to enforce the judgments under the CCP. The courts could impose a fine on M.K., obliging her to comply with the access agreements. It appears that that took place on one occasion, on 1 April 2008, when the court threatened M.K. with a fine if she failed to comply with the settlement agreement of the same date. The meeting scheduled for 5 April 2008 took place, as did the following ones, and no fine was imposed. As of 13 August 2011 the applicant was able to request a penalty payment from M.K. for any failure by her to respect the access arrangements. The applicant applied for that right and obtained it on 19 February 2013. However, no penalty was ever paid by M.K. apparently as the applicant stopped trying to see his son owing to their conflict and he never applied to enforce that decision.

73.  According to the Court's settled case-law, the State's obligations in relation to Article 8 are not of result but are of means (see Pascal v. Romania, no. 805/09, § 69, 17 April 2012). The Court therefore concludes that the national authorities took all the steps necessary and which could reasonably be required of them in order to enforce the applicant's right to have contact with his son (see Gobec v. Slovenia, no. 7233/04, § 152, 3 October 2013).

74.  The foregoing considerations are sufficient to enable the Court to conclude that there has been no violation of Article 8 of the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Declares the application admissible;

2.  Holds that there has been no violation of Article 8 of the Convention.

Done in English, and notified in writing on 7 February 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea Tamietti Deputy Registrar 
András Sajó President