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The ECHR’s ruling in Kaminska v Poland: Enforcement of return orders – where do we go from here?

James Netto, Solicitor Advocate with Dawson Cornwell, considers a recent judgment of the ECtHR that confirms the need for the rapid recognition and enforcement of child abduction and custody orders.

James Netto, Solicitor Advocate, Dawson Cornwell

James Netto, Solicitor Advocate, Dawson Cornwell

For the second time in just seven months, the European Court of Human Rights has determined that the state of Poland has breached an applicant's right to private and family life, as a result of the state failing to enforce a family court order following an international child abduction.  Most recently, the case of Kaminska v Poland, handed down by the Strasbourg Court on 18 January 2018, highlights just what can go wrong within European child abduction proceedings and confirms, once again, that there is a need for the rapid recognition and enforcement of child abduction and custody orders.

This matter concerned an application made by a Polish national, Ms Oller Kaminska, who alleged that she had suffered a violation of her rights in respect of her family life, on account of the Polish Authority's inability to swiftly reunite her with her daughter, notwithstanding a series of return orders. Although she relied on Articles 6 and 8 of the Convention, this judgment focused on the ramifications of the failure of the Polish state to act promptly, and whether that was tantamount to a violation of Article 8 rights.

The extensive litigation arising out of the child's abduction created a maelstrom of competing applications, orders and appeals in both Poland and Ireland, which are summarised in some detail below.

The family were Polish, and their only child, A, was born in March 2000. The family was living in the Republic of Ireland until 2009, whereupon the father moved back to Poland alone.  The mother and child remained living in Ireland.  Proceedings then took place before the Ennis District Court, in relation to general welfare considerations for the child. By way of a consent order, the parents agreed that the child was to spend time with her father in Poland from 7 July 2009 to 15 August 2009.  The order also established that the child's habitual residence was in Ireland.  However, in the midst of the proceedings, the father failed to return the child to her mother in Ireland in August 2009.

Following the immediate commencement of abduction proceedings and applications to the Central Authorities, on 15 September 2009, the Irish County Court determined that the child was to reside with the mother, and also issued the first return order.  A certificate of enforceability, pursuant to Article 42 of the Brussels II bis Regulation, was also attached to the order.  Almost immediately thereafter, the mother also applied to the Polish Ministry of Justice, for assistance in seeking the return of the child.

Polish proceedings: round 1
A catalogue of extensive proceedings then took place, at first before the District Court of Malbork in Poland.  Within the first wave of proceedings in Poland, on 18 December 2009, the Polish Court rejected the mother's application for the child's return, basing this decision on Article 13(b).  The Polish Court supported its reasoning with findings made within a welfare report commissioned by the Court, alongside several other social and psychological studies.  There was also some suggestion that the child "wished to remain" in Poland.  The appeal against the non-return order was dismissed by the Gdansk Regional Court in May 2010. 

Almost simultaneously, the mother also applied to the Polish authorities to recognise and enforce her first Irish return order, which was initially permitted by the Gdansk Regional Court on 4 December 2009.  However, the father's subsequent appeal led to the quashing the recognition order. On appeal, the Polish Court of Appeal stated that this judgment for recognition of the Irish return order could not be reconciled with the subsequent judgment of the Polish Court of 4 December 2009, which dismissed the mother's application for the child's return to Ireland.  It was said by the Gdansk Court of Appeal that the first Irish return order was incapable of enforcement in Poland. 

Undeterred, the mother continued to the Polish Supreme Court, which further quashed the non-recognition decision of the Court of Appeal on 24 August 2011. The matter was then remitted for re-examination.

Polish proceedings: round 2
Meanwhile, back in Ireland, the mother restarted proceedings, which led to the High Court of Ireland determining on 28 January 2011 that it had jurisdiction to decide over custody matters, and that it had retained jurisdiction after the child's wrongful retention in August 2009.  The proceedings in the High Court of Ireland culminated on 9 September 2011, when the child's return to Ireland was ordered for a second time.  It was clear from this judgment that this second return order superseded the previous orders. A later appeal submitted by the father was refused.

Almost immediately after the Court made the second return order, the mother sought to have that return order enforced. Following extensive liaison between the Irish and Polish Central Authorities and Family Liaison Judges, the matter came back before the Malbork District Court on 9 May 2012 on the mother's application for enforcement of the second Irish return order. 

On this date, the father explained that he had refused to comply with the previous Irish Court orders, as the child was said to be in a "bad psychological state".  Thereafter, the child and father disappeared within Poland, and attempts to execute the second Irish return order by the State Guardian failed.  Following three unsuccessful attempts to remove the child, the matter came before the Malbork District Court on 7 September 2012.  On this date, the Polish Court determined that the proceedings for recognition and enforcement should be discontinued, on the basis of a rather creative interpretation of the second Irish return order, in which the return order was said to have 'expired'.  Unsurprisingly, this decision went back before the Court of Appeal, who overturned the decision, and reaffirmed that the second Irish return order remained valid.

One can only imagine the litigation fatigue that the parents and indeed the child were feeling by this point.  Quite unusually, in September 2012, the mother appeared to take matters into her own hands, and unilaterally secured the child into her care in Poland. She then seems to have travelled back to Ireland with her. The child has, since September 2012, remained living in Ireland with her mother. The matter then fell to be determined as a custody issue in the Irish District Court. Following more than three years of proceedings across two states, the child who was abducted in August 2009 at long last returned to Ireland.

The violation of Convention rights
The mother applied to the European Court of Human Rights in relation to her own rights being breached. No application was made on behalf of the child.  The mother complained that the Polish courts had violated her rights of respect for her family life, as they had systematically failed to promptly reunite her with her daughter, as determined by two Irish court orders.  The mother relied upon Article 6 and 8 of the Convention; however, the Court firstly considered that the main issue was her right to family life and therefore determined it unnecessary to determine issues under Article 6 (as per Raban v Romania No. 25437/08, 26 October 2010).

The Government of Poland defended the mother's application, raising a number of objections regarding the admissibility of the case.  The Government highlighted that the mother had "kidnapped" her daughter in September 2012, and returned her to Ireland. The Government of Poland alleged that her actions had been contrary to the principle of best interests of the child.  The mother responded that she had formal custody rights over the child when she had taken the child back to Ireland, and reiterated that her application concerned the Polish Authorities' failure to return the child, disregarding Irish decisions.  The Government furthermore failed to provide any evidence that the removal of the child by the mother had been considered illegal.  As such, this allegation was found by the Strasbourg Court to have been unsubstantiated. 

The crux of the mother's case was that the Polish Authorities had failed to reunite her with her daughter in spite of the first Irish return order in 2009, and the second Irish return order in 2011.

In its judgment, the Strasbourg Court was quick to reiterate 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."

The Court went on to highlight the matter of Ignaccolo-Zenide v Romania (No. 31679/96 ECHR 2000 – I). The Court noted that the mother had initiated proceedings under The Hague Convention, that she had sought to enforce Irish court orders, that she had duly contacted the Irish and Polish Central Authorities, and that she had repeatedly requested that proceedings be accelerated and appealed where required.  It reaffirmed that the norms set down in Brussels II bis and in the Hague Convention are all based on the philosophy that in all decisions concerning children, their best interest must be paramount (as per X v Latvia App No 27853/09).

In considering the chronology, the Strasbourg Court was quick to criticise the length of the proceedings and cited improperly constituted proceedings relating to custody matters, which plainly fell to be an issue that should be determined in Ireland. The Strasbourg Court highlighted that all states were under a positive obligation to take all measures that could reasonably be expected of them to enforce the decision ordering the child's return, and the Polish Government themselves conceded that non-enforcement of the return orders had constituted an interference with the mother's right to respect for her private and family life.

When approaching the question of whether the Polish Authorities had taken all measures that they could reasonably have been expected to have taken in order to ensure that the mother's family rights were recognised, the Court squarely came to the conclusion that Poland had failed.  The proceedings for the enforcement lasted some nine months, which directly contributed to the length of the stayed enforcement proceedings.  Furthermore, the enforcement proceedings suffered yet another long delay, owing to the appeal lodged with the Supreme Court.  As such, the enforcement of the first return order did not finish until February 2012, notwithstanding having been issued in October 2009. 

The Court therefore concluded that there was no enforcement of the second return order for seven months, and that it effectively took the Polish Authorities over one year to decide that the Irish return order was enforceable.  During this time, the mother had absolutely no contact with the child. Although there was some acknowledgement of the complexity of this matter, the Court was not impressed with an argument mounted by the Polish Government that this contributed to the delay. 

The Court went on to unanimously hold the state of Poland responsible for a violation of Article 8 of the Convention, and furthermore, awarded the mother €15,000 in damages, and a further €10,000 in relation to costs and expenses incurred by this application. 

The unanswered question, however, is whether the child would have ever been returned to Ireland, if the mother had not essentially taken matters into her own hands and returned the child herself.  Whilst the judgment of the Strasbourg Court is understandably less detailed on that issue, the question remains. 

The trials and tribulations of the mother, as described above, may come as little surprise to child abduction practitioners who have experience of proceedings involving Poland.  It is furthermore not the first time that the issue of Poland's failure swiftly to recognise custody decisions has come into the spotlight in the Strasbourg Court; the case of GN v Poland (2171-14) [2016] ECHR 667 bears a remarkable resemblance to the case of Kaminska.  That case similarly determined that there had been a breach of right to family life for failing to promptly return children under a Canadian return order. The Strasbourg Court there held that the way in which Poland had conducted that matter was "not in compliance" with the positive applications to act expeditiously in proceedings concerning the return of children.

Closer to home, the case of GM v KZ [2017] EWFC 73 concerned an applicant's application for an order pursuant to Article 11(6)-(8) of Brussels II bis. In that matter, two children had been removed from England to Poland by the mother in the midst of proceedings in the Brighton Family Court. The father's applications for a return order were refused by the Polish Court on curious jurisdictional grounds. In that matter, Mostyn J noted:

"I have, with great regret and much anxiousness, reached the conclusion that in this case [the Polish Judge] has strained the facts beyond their acceptable and normal meaning in order to reach a conclusion which justifies the Polish Court exercising jurisdiction over these children."

He went on to order the children's return, on the basis that his return order should be swiftly enforced by the Polish authorities.

Of course, delay is not something unique to the Courts of Poland within child abduction and international enforcement proceedings; far from it. It creeps into proceedings across states, and of course there are cases of this nature currently ongoing before the High Courts of England and Wales that have been deliberated upon and appealed for months and even years.  Ms Kaminska is sadly not the only person to have experienced delay to the point at which it impacts upon the swift execution of a return order.  That notwithstanding, the fundamental tenets of Brussels II bis and the Hague Convention are inter-judicial and inter-state co-operation. Whilst respecting the laws of each signatory state, the theme of international co-operation strikes at the very heart of child abduction proceedings; if judges cannot rely upon what a brother or sister judge abroad should do in a signatory state, the ability to make return and non-return orders can be seriously undermined.

With an eye on the future, perhaps some solace can be taken from the proposals for the recast Brussels II bis arrangements.  The European Commission has already put forward a proposal that seeks to hit this nail on the head; namely, limiting the chain of appeals to one stage, and setting an 18-week timeframe for the whole process.  This would ensure that Member States have six weeks to substantively determine abduction applications, with a further six weeks to determine any further appeals, and a further six weeks for enforcement to take place.  Let us hope that, over time, cases such as Kaminska are confined to the history books. Until then, practitioners will need to keep aware of the requirement to deal with matters expeditiously, not only by seeking orders in both countries, but where necessary, relying upon inter-judicial co-operation and Family Liaison Judges.