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FOURTH
SECTION
CASE OF KIJOWSKI v. POLAND
(Application
no. 33829/07)
JUDGMENT
STRASBOURG
5 April
2011
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 Kijowski v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza,
President,
Lech Garlicki,
Ljiljana
Mijović,
Sverre Erik Jebens,
Zdravka
Kalaydjieva,
Nebojša Vučinić,
Vincent
A. De Gaetano, judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 15 March 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 33829/07) 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
Bogusław Kijowski (“the applicant”), on
15 June 2007.
- The
applicant, who had been granted legal aid, was represented by
Mr Z. Cichoń, a lawyer practising in Krakow. The
Polish Government were represented by their Agent, Mr J. Wołąsiewicz,
of the Ministry of Foreign Affairs.
- The
applicant alleged, in particular, that the domestic authorities had
failed to take effective steps to enforce his right to respect for
his family life in respect of his two sons, as guaranteed by Article
8 of the Convention.
- On
12 October 2009 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 1).
The President also gave priority to the application, pursuant to Rule
41 of the Rules of the Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1966 and lives in Kraków.
- The
applicant married in 1996 and has two sons, A, born on
3 December 1996, and B, born on 4 February 2003.
- In
November 2002 the applicant’s wife moved to her parents’
house, taking A with her. One month later she instituted divorce
proceedings. The applicant visited them on several
occasions. However, most of these visits were disrupted by the
couples’ mutual hostility. In February 2003 the
applicant’s wife informed him that she would not allow further
visits, but the applicant continued to go to her flat, sometimes with
other members of his family.
- On
3 August 2003 the applicant, during one of the visits, took his
son A away with him, without his wife’s consent and apparently
by force. Afterwards A lived with the applicant in Kraków
until 8 March 2007.
- The
applicant submitted that A had been neglected and that he had acted
in the best interests of his son. A subsequently received dental
treatment, psychological support and speech therapy, and started
going to school.
The
Government submitted that the child’s psychological problems
had been caused by the trauma of being kidnapped by his father, which
had also led to the aggravation of his stutter. They relied on the
reasoning of the Regional Court judgment of 30 June 2006
(see paragraph 16 below).
- In
August 2003 the applicant’s wife informed the prosecutor that
her son had been kidnapped by the applicant.
The
applicant’s wife also applied to the court for sole residence
of A; however, on 19 November 2003 the Kraków
Regional Court decided to make a temporary residence order for A
with the applicant. The applicant’s wife was granted
contact rights. The Government submitted that the applicant had been
hindering her contact with A; the applicant denied this.
- In
May 2004 the parties and A were examined by experts from the RODK
(Regional Family Consultation
Centre). Their opinion was
that A should live with his mother, although the applicant should
enjoy extensive contact rights.
- On
22 November 2004 the court changed its decision
of 19 November 2003 and made a residence order for A
with the applicant’s wife. The applicant was granted contact
rights and was ordered to return the child to his wife. An
appeal by the applicant against this decision was dismissed on
22 March 2005.
- The
applicant failed to comply with this decision and refused to return
A.
- On
8 December 2004 the Brzesko District Court dismissed in the light of
DNA tests the applicant’s action contesting his paternity of B.
Subsequently, the applicant attempted to visit B; however, his wife
apparently hindered his contact with his younger son.
- The
applicant continued to live with A, who changed schools; they
apparently moved house more than once. The applicant’s wife
complained to the prosecutor and attempted to have the decision of
22 November 2004 enforced.
- On
30 June 2006 the Kraków Regional Court granted the
applicant’s petition for divorce. The court further decided to
limit the applicant’s parental responsibility for A and to
deprive him altogether of parental responsibility for B. Residence of
both children was ordered to be with the applicant’s former
wife. The court also allowed the applicant contact rights in respect
of both his sons.
- An
appeal by the applicant against the judgment was dismissed
on 28 December 2006 by the Kraków Court of
Appeal. The reasoned judgment was notified to the applicant on
15 February 2007.
- The
applicant’s former wife made contact with B impossible for the
applicant. However, he failed to institute enforcement proceedings
against his former wife or to apply to the court for a fine to be
imposed on her.
- On
8 March 2007 the applicant was arrested by the police in
view of the reasonable suspicion that he had kidnapped A and kept
him, in spite of the final judgment of 30 June 2006 and the
previous order of 22 November 2004. He remained in
pre-trial detention for six months and was released in September
2007. On 25 May 2007 the applicant was indicted before
the Kraków District Court. Subsequently, the applicant and his
mother were found guilty of keeping A with them, in breach of
domestic decisions. On 4 December 2009 the Krakow Regional
Court quashed that judgment. It appears that the proceedings are
pending before the trial court.
- A
was only returned to residence with his mother three months after the
applicant’s arrest, because between 8 March and
8 July 2007 he had been living with the applicant’s
mother.
- On
25 January 2008 A was heard by the prosecutor in the
criminal proceedings against the applicant. The child stated that he
preferred to live with his father and that his mother had been
threatening him and had forbidden him to call his father.
- In
March 2008 A ran away from his mother’s and went to his
father’s house, located 100 kilometres away. The applicant took
him to the police station and A was returned to his mother.
- On
1 April 2008 A ran away again and joined his father in
Kraków. They have been living together since then.
- On
8 April 2008 the applicant applied to the Dąbrowa
Tarnowska District Court for a new decision regarding parental
responsibility and for an order for A’s residence with him.
- On
10 April 2008 the court guardian visited the applicant and
A. According to her opinion, A did not want to live with his mother,
had good living conditions with his father and paternal grandmother
in Kraków and preferred to stay with his father.
- On
14 April 2008 the court dismissed the applicant’s
request for an interim order changing the child’s place of
residence (o zabezpieczenie wniosku).
- On
23 June 2008 the Tarnow Regional Court made an interim
order suspending contact between the applicant and B, which had been
ordered in the divorce judgment of 30 June 2006.
- At
a hearing on 6 October 2008 the Dąbrowa Tarnowska
District Court heard, inter alia, the director of A’s
former school, which he had been attending while living at his
mother’s. She testified that A had very often spoken to her
complaining about his situation at home, in particular that his
mother had prohibited him from visiting his father as well as from
calling the applicant or using a computer for the purpose of
contacting him. During the stay at his mother’s the child
apparently felt that he had been treated differently from his brother
B and that his mother had threatened that he would be taken to a
children’s home and that his father would be arrested again.
- On
6 October 2008 the court again dismissed the applicant’s
request for an interim order allowing A’s place of residence to
be with him. The court established that A had had de facto
residence with the applicant between August 2003 and March 2007 and
since April 2008. The child obviously had a stronger attachment to
his father. However, the court did not consider that there was enough
evidence to issue an interim order changing the earlier decision of
A’s place of residence before the case was ready for a decision
on the merits.
- At
the hearing on 27 April 2009 the court heard A, who was
then twelve years old, for the first time.
- On
the same date the court dismissed the applicant’s request for
the interim residence of A to be with him. The court again considered
that without a thorough examination of the case it would not be
possible to assess whether the best interests of the child
required him to stay with his mother or with his father. Therefore
the court decided to first hear experts and to obtain their opinion
in order to establish the reasons for A’s hostility towards his
mother. An appeal by the applicant against this decision was
dismissed on 20 July 2009.
- On
11 August 2009 the Dąbrowa Gornicza District Court
ordered an opinion to be prepared by the RODK. The opinion was
finally submitted to the court on 16 December 2009.
According to the experts the best interests of A required that the
residence order be changed to allow A to live with the applicant. The
experts took into account the feelings and choices made by A and the
family situation characterised by a prolonged conflict between his
parents, with A caught in the middle of that conflict. Nevertheless
the experts noticed that A had been influenced by the applicant, who
had enlisted him in a coalition against his mother and expected
absolute loyalty from him. Such behaviour worked against the
applicant’s ability to be a good parent and violated the
child’s right to express his feelings freely and to form views
about the family and the world on the basis of his own experience.
- On
15 February 2010 the Kraków District Court allowed
the applicant’s request of 8 April 2008, granted
him full parental responsibility and ordered A’s residence with
him. It limited the parental responsibility of the applicant’s
former wife in respect of A.
The
court considered that A’s negative attitude towards his mother,
which manifested itself during the period when he was under her care
in 2007, had been caused by the lengthy period of total
deprivation of any contact between them and during which the
applicant had isolated A from his mother. Moreover, for a prolonged
period of time the applicant had the undisturbed opportunity to
influence his child and create a very strong bond between them.
Nevertheless,
the court considered that the situation of the child had
substantially changed since the divorce judgment of 30 June 2006.
A had been living with the applicant, who has been securing his
emotional and material needs. The court also took into account the
wish of the child as to his preferred place of residence, given his
age and level of maturity. Regard being had to the above, the court
decided that the best interests of the child required the previous
decisions to be modified and an order made for A’s place of
residence to be with the applicant.
- The
applicant’s former wife appealed against the decision, but
on 15 July 2010 the Tarnów Regional Court
dismissed the appeal.
- On
7 April 2010 the Dąbrowa Tarnowska District Court
modified the judgment of 30 June 2006 and banned any
contact between the applicant and his younger son B. The court found
that the applicant had never wanted his second child, contested his
paternity of him and had seen B only twice: once after B’s
birth in 2003 and once in connection with the preparation of
a psychological opinion at the RODK. In consequence B, seven
years old, had not developed any emotional ties with the applicant,
and in fact was afraid of him and perceived him as a threat to the
stability of his family. The court concluded that the best interests
of the child required all contact between him and the applicant to
cease.
- The
applicant appealed against this decision, but on 11 June 2010
the Dabrowa Tarnowska District Court rejected the appeal for failure
to lodge it in accordance with formal requirements, namely by lodging
it out of time. A further appeal against the latter decision was
dismissed on 20 July 2010 by the Tarnów Regional
Court.
II. RELEVANT DOMESTIC LAW
- Under Article 106 of the Family and Custody Code,
a final court decision as to parental responsibility and contact
arrangements can be modified at any time if the interests of the
child so require, either upon an application by either parent or by
the court acting of its own motion.
- Pursuant
to Article 730 of the Code of Civil Procedure a party can request the
court to issue an interim order in order to secure a claim
concerning, for instance, contact arrangements.
- The
relevant domestic law concerning the enforcement of a parent’s
contact rights is set out in the Court’s judgment in the case
of P.P. v. Poland (no. 8677/03, §§ 69 74,
8 January 2008).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that the authorities had failed to take the
necessary measures to secure respect for his family life, as provided
in 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.”
- The
Government contested that argument maintaining, among other things,
that the applicant had failed to exhaust domestic remedies.
A. Admissibility
- The
Court notes that the applicant’s complaint under Article 8
is twofold and concerns, firstly, the delay with which the
authorities dealt with his application for a change in the residence
order regarding his son A and, secondly, his wife’s hindering
his contact with his son B.
- With
respect to the complaint relating to his son A, the Government argued
that it was open to the applicant to lodge a complaint under the Law
of 17 June 2004 on complaints about a breach of the right to a
trial within a reasonable time (“the 2004 Act”).
- The Court observes that the 2004 Act
introduced remedies, of both a remedial and compensatory character,
concerning specifically the right to have one’s case examined
within a reasonable time within the meaning of Article 6 § 1 of
the Convention. It has held that these remedies are effective in
respect of the excessive length of pending judicial proceedings (see
Charzyński v. Poland (dec.), no. 15212/03,
1 March 2005). However, in the present case it is not merely the
excessive length of civil proceedings which is in issue, but the
question whether in the circumstances of the case seen as a whole,
the State can be said to have complied with its positive obligations
under Article 8 of the Convention (see, as regards Article 2 of the
Convention, Mojsiejew v. Poland, no. 11818/02, § 42,
24 March 2009). 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 (see Ignaccolo-Zenide
v. Romania, no. 31679/96, § 102, ECHR
2000-I).
- The
Court thus rejects the Government’s preliminary objection.
It considers that the applicant’s complaint relating to
his son A is not manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
- Secondly,
the applicant complained that in spite of the orders allowing him to
visit B all contact had been hindered by his former wife. However,
the Court observes that the applicant made no attempts to have visits
regulated between the birth of B in 2003 and the divorce decree
of 30 June 2006. Afterwards, he failed to apply to
enforce the visits ordered in the latter judgment or to apply for his
former wife to be fined for alleged non-compliance with the visiting
arrangement (see paragraph 18 above). After the temporary suspension
of his contact with B in 2008 he did not apply to have the visits
resumed (see paragraph 27 above). Finally, on 7 April 2010
the Regional Court noted that the applicant had seen seven-year-old B
twice and had shown no interest in establishing contact with him, and
thus had not enjoyed any emotional ties with his younger son. The
court prohibited the applicant from visiting B; however, the
applicant did not appeal against this decision within the time-limit,
and thus clearly failed to exhaust domestic remedies (see paragraphs
35 and 36 above).
- Therefore,
in the light of all the material in its possession, and in so far as
the matters complained of are within its competence, the Court finds
that they do not disclose any appearance of a violation of the rights
and freedoms set out in the Convention or its Protocols. It follows
that this part of the application is manifestly ill-founded and must
be rejected in accordance with Article 35 §§ 3
and 4 of the Convention.
B. Merits
- The
applicant in general submitted that the authorities had failed to act
promptly to determine his request of 8 April 2008 for the
residence order concerning A to be changed. He underlined that the
best interests of the child required that his request be dealt with
expeditiously.
- The
Government submitted that the authorities had taken all the necessary
steps that could reasonably be demanded of them. They stressed the
complexity of the matter and the fact that the parties were in
conflict. They submitted that the courts concerned had held many
lengthy hearings and heard witnesses. The Government concluded that
the length of the proceedings to change the residence order,
instituted by the applicant on 8 April 2008, did not
amount to a breach of the applicant’s right to respect for his
family life under Article 8 of the Convention.
- The Court reiterates that the essential object of
Article 8 is to protect the individual against arbitrary action
by public authorities. There are in addition positive
obligations inherent in effective “respect” for family
life. 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, among other
authorities, Dąbrowska v. Poland, no. 34568/08,
§ 44, 2 February 2010).
- The
Court’s case-law has consistently held that Article 8
includes a right for a parent to have measures taken with a view
to his or her being reunited with the child, and an obligation for
the national authorities to take such measures. This applies not only
to cases dealing with the compulsory taking of children into public
care and the implementation of care measures (see, inter alia,
Olsson v. Sweden (no. 2), judgment of 27 November 1992,
Series A no. 250, pp. 35-36, § 90), but also
to cases where contact and residence disputes concerning children
arise between parents and/or other members of the children’s
family (see Hokkanen v. Finland, 23 September 1994,
§ 55, Series A no. 299 A, and Zawadka v.
Poland, no. 48542/99, § 55, 23 June 2005).
- In
such cases the obligations of the national authorities are not,
however, absolute. The key consideration is whether those authorities
have taken all the necessary steps to facilitate such contact as can
reasonably be demanded in the particular circumstances of each case
(see, mutatis mutandis, Hokkanen, cited above, § 58).
Other important factors in proceedings concerning children are that
time takes on a particular significance, as there is always the
danger that any procedural delay will result in the de facto
determination of the issue before the court (see W. v. the United
Kingdom, judgment of 8 July 1987, Series A no. 121, pp.
28 29, §§ 62 64).
The Court notes that there is a broad consensus – including in
international law – in support of the idea that in all
decisions concerning children, their best interests must be paramount
(see, among many other authorities, Neulinger and Shuruk v.
Switzerland [GC], no. 41615/07, § 135, 6 July 2010).
- Turning
to the circumstances of the instant case, the Court notes that since
the breakdown of the applicant’s marriage in 2002 the applicant
has been caring for his son alone, with the exception of a one-year
period between March 2007 and 1 April 2008. The child lived with him,
in breach of the domestic decision of 22 November 2004 and the
subsequent divorce decree of 30 June 2006, which had ordered A’s
residence with his mother. The authorities were only able to
enforce the residence order in July 2007, when the child was placed
in the care of his mother. It appears that this reunion was not
successful and the child twice ran away from home to his father (see
paragraphs 22 and 23 above). On 1 April 2008 A permanently moved in
with his father, with whom he has been living ever since.
The domestic court legalised this situation and ordered the
child’s residence with the applicant on 15 February 2010.
- It
thus appears that the domestic authorities’ inability to
enforce the residence order and divorce decree placing A in the care
of his mother benefited the applicant, who enjoyed de facto residence
with his son.
- The
core of the applicant’s complaint in the case under
consideration was that the authorities were not diligent in examining
his request to change the residence order in respect of A, in breach
of his right to respect for his family life. The applicant lodged the
request with the domestic court on 8 April 2008 in the light of the
fact that the child, who was then eleven years old, preferred to live
with the applicant and had been under his sole care for most of his
life.
- The
court decided on the request on 15 February 2010 and allowed it,
legalising the status quo. In the meantime, it dismissed on 14 April
and 6 October 2008 and on 27 April 2009 the
applicant’s applications for interim residence orders for the
child (see paragraphs 26, 29 and 31 above). The court considered that
although the child had been de facto in residence with the applicant,
there was not enough evidence to issue an interim order changing the
earlier decision on A’s place of residence.
The
Court notes that the domestic court held several hearings and heard
all parties involved, including the child. It also requested an
expert opinion from the Regional Family
Consultation Centre. The opinion was submitted to the court in
December 2009. Given that the preparation of that opinion involved
psychological examinations of the applicant, his former wife, and A,
that delay could not be said to have been excessive. Shortly
afterwards the court gave a decision on the merits and ordered A’s
residence with the applicant.
- The
Court reiterates that the task of assessing the best interests of
the child is primarily one for the domestic authorities, which
in the instant case had the benefit of direct contact with the
persons concerned. The Court cannot substitute itself for the
domestic authorities in the exercise of their responsibilities as
regards the modification of the residence order. Rather its task is
to review under the Convention the decisions taken by those
authorities in the exercise of their discretion and to assess if they
have taken all steps that can reasonably be demanded in the special
circumstances of this case.
- The
Court considers that the proceedings involved a certain degree of
complexity caused not only by the obvious conflict between the
parties but also by the important fact that the applicant had acted
in breach of domestic law when he decided to keep A with him. The
domestic authorities also had to take into account the wishes of A,
who had reached the age of thirteen and clearly wished to live with
the applicant (see Kaleta v. Poland, no. 11375/02,
§ 58, 16 December 2008).
- Regard
being had to the above considerations, and the margin of appreciation
allowed to the domestic authorities, the Court does not consider that
the period of one year and ten months during which the domestic
courts dealt with the merits of the applicant’s request to
modify the residence order in respect of A amounted to a breach of
the applicant’s right to respect for his family life.
There
has been no violation of Article 8 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained under Article 6 of the Convention that
his divorce proceedings had been unfair. However, in the light of all
the material in its possession, and in so far as the matters
complained of are within its competence, the Court finds that they do
not disclose any appearance of a violation of the rights and freedoms
set out in the Convention or its Protocols.
It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4
of the Convention.
FOR THESE REASONS, THE COURT
- Declares unanimously the complaint under
Article 8 of the Convention in respect of the applicant’s
older son A admissible and the remainder of the application
inadmissible;
- Holds by six votes to one that there has been no
violation of Article 8 of the Convention.
Done in English, and notified in writing on 5 April 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the dissenting opinion of Judge V.A.
De Gaetano is annexed to this judgment.
N.B.
T.L.E.
DISSENTING OPINION OF JUDGE DE GAETANO
- I
regret that I cannot agree with the decision of the majority of the
Court on the question of whether or not there has been a violation of
Article 8. To my mind there was in this case such a violation.
- This
is a child custody case. The relevant period is from 8 April 2008
when the applicant applied to the District Court to have the order
made for the child to be allowed to stay with him to 15
February 2010 when the said District Court allowed the
request: in all a period of just over one year and ten months, in
effect almost two years. This may not be a particularly long period
of time for a civil or commercial case involving property rights.
Here, however, we are dealing with the continued “uncertainty”
as to the custody of a child, an uncertainty which is, of its
very nature, an interference in and with the family life of the
parties concerned. The longer this uncertainty persists, the
more long term harm is caused to the development of the child. In
these cases, therefore, justice cannot be administered piecemeal or
in fits and starts.
- This,
one would have thought, is nothing new. When the Committee of
Ministers of the Council of Europe, in their Guidelines on Child
Friendly Justice (adopted on 17 November 2010 at the 1098th
meeting of the Ministers’ Deputies) stated in para. 50
that “In all proceedings involving children, the urgency
principle should be applied to provide a speedy response and protect
the best interests of the child, while respecting the rule of law”,
they were not inventing rocket science; they were just re-stating the
obvious. Likewise, para. 51: “In family law cases (for
example parentage, custody, parental abduction), courts should
exercise exceptional diligence to avoid any risk of adverse
consequences on the family relations.” Sometimes, however, one
tends to miss the wood for the trees.
- It
should have also been patently obvious to anyone with a modicum of
practical experience of family court work that the de facto
custody which the father had enjoyed should have been confirmed.
The child, A, had been with the applicant since 3 August 2003; by the
time the request was made on 8 April 2008, A was old enough (11 and a
half years) to be able to express his views, as he in fact did to the
prosecutor who was conducting the criminal proceedings against the
applicant (para. 21 of the judgment); he twice ran away from his
mother’s residence (paras. 22 and 23). In short, contrary to
what is stated in para. 58, the case presented no particular
complexity or difficulty unless one considers the inevitable
conflict between the parents in any custody case as “complexity”.
Being a child custody case, the court seized of the application of 8
April 2008 was expected to have all the important facts in hand
before or at most by the first hearing, to be able then to deal with
the application using “exceptional diligence”. Instead it
proceeded to deal with the case as if it were an ordinary case,
receiving a little bit of evidence at every hearing (as seems to be
the practice in Poland). Suffice it to point out – and this is
what really makes the case almost surreal as to the length of time it
took to decide the application of 8 April 2008 – that the
court guardian visited the applicant and A on 10 April 2008, but
it was not before 27 April 2009 that A was heard by the court,
and it was only on 11 August 2009 that the court
commissioned an expert opinion. Again, this expert opinion only
stated the obvious, even as regards the applicant’s influence
on A’s views “about the family and the world”
(para. 32). It is also to be observed that, contrary to what is
recommended in paragraph 52 of the Guidelines of the Committee of
Ministers of the Council of Europe on child friendly justice,
already mentioned above, the District Court on three occasions
refused also to make an interim order (paras. 26, 29 and 31).
- Finally,
to suggest, as is done in paragraph 58, that the case before
the Polish courts was somehow complex or difficult because of
“the important fact that the applicant had acted in breach of
domestic law when he decided to keep A with him” (after the
divorce ruling of the 30 June 2006) puts again the whole issue of the
need for exceptional diligence in similar cases completely out of
focus. Whether or not there has been a violation of the State’s
positive obligations under Article 8 in such cases should not
depend in any way on who, as between husband and wife (or father and
mother), has accumulated the most Brownie points.
- The
Court had, with this case, an opportunity to break a lance on behalf
of expeditious proceedings in child custody cases. It has missed that
chance.
