H.N. v. Poland, 13 September 2005

INCADAT legal file Hague parental abduction

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The application related to three children: a girl born in 1989, a boy born in 1992 and another girl born in 1994. The father was Norwegian, the mother Polish and the family had lived together in Norway. The mother also had another son born in 1980 from a previous marriage. In late 1994 the mother was committed to a psychiatric institution for more than two months. In 1998 the parents divorced and the father was granted custody, the mother access. This decision was upheld on appeal.
On 28 August 1999 the mother unilaterally took the children to Poland. On 31 August 1999 the father applied to the Polish Ministry of Justice for assistance in securing the return of the children. The Warsaw District Court was seised on 24 September. On 22 November 1999 a Polish translation of an expert opinion obtained by the Inder??y District Court (Norway) on 4 October 1999 was submitted to the Polish Ministry of Justice.
On 6 December 1999 the Warsaw District Court requested an expert opinion on the relationships between the children and their parents and on whether the return of the children to the father would lead to psychological or physical damage to the children. On 2 March 2000 the Warsaw District Court ordered the return of the children. The mother appealed. The appeal was dismissed by the Warsaw Regional Court on 4 July. During the latter hearing the mother and her lawyer declared that the children would be hidden.
On 27 July the enforcement proceedings began. The bailiff (komornik) requested the mother to return the children but she refused.
On 19 October the Warsaw District Court held the first hearing in the enforcement proceedings. On 23 October the father lodged a petition with the European Court of Human Rights claiming a breach of his Convention rights by the Polish government. On 23 November the Warsaw District Court adjourned the hearing as it considered that it was necessary to hear both parties to the proceedings.
On 8 January 2001 the Warsaw District Court ordered the mother to return the children to the father within seven days. It also decided that if she did not comply with the order she would be punished with a 1,000 Polish zlotys fine or a ten-day prison term in default. The court also ordered the bailiff to take the children away from the mother by force if they were not returned within seven days.
The mother appealed this decision but the appeal was dismissed by the Warsaw Regional Court on 6 March 2001.
On 2 April 2001 the bailiff sent to the District Committee for the Protection of the Rights of the Child in Warsaw a written request for their assistance in the enforcement of the District Court’s order to take the children away from the mother by force. The request noted that the bailiff would enforce the court’s order on 19 April 2001 at 1 p.m. at the mother’s house in Warsaw. On that date neither the mother nor the children were present at the house.
On 31 August 2001 the Norwegian Central Authority submitted to its Polish counterpart details of the mother’s bank account held in Warsaw into which she was receiving her pension from Norway.
On 19 December 2001 the Polish Central Authority informed its Norwegian counterpart that details of the mother’s bank account had been passed to the prosecution service, which was investigating this lead. On 14 December 2001 the Warsaw District Court allowed an application lodged by the father’s lawyer and decided that a guardian should take the children away from the mother when her address was established.
On 9 July 2002 the father was informed by his step-son that the eldest daughter was staying with a maternal aunt in Warsaw. This child was returned to Norway the next day. In the autumn of 2002 the Warsaw District Court began investigations into where the children were receiving their schooling. In January 2003 the court asked the Social Security Board where the mother was collecting her pension.
On 17 February 2003 the Warsaw District Prosecutor informed the Warsaw District Court that the mother had been arrested in Bialystok, Poland several months before. On 28 February the mother was charged with the forgery of documents. On 16 April the remaining two children were returned to Norway. On 17 February 2004 the father’s application to the ECHR was declared admissible.