Stochlak c. Pologne (Requ?te No 38273/02)

INCADAT legal file Hague parental abduction

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The case concerned a child born in 1993 in Canada, where her parents resided. In 1996, the family went to Poland on holiday. During that stay, the mother, who had Polish roots, informed the father that she had decided to live in Poland with the child permanently.
On 18 December 1996, the Family Court of Ontario ordered the child’s return to Canada.
In January 1997, the father approached the Polish Ministry of Justice to obtain the child’s return.
On 6 March 1997, a Warsaw court at first instance ordered the child’s return. This ruling was upheld on appeal in May 1997, but the mother’s appeal to the Supreme Court was allowed in October 1997. The case was returned to the Court of Appeal for a further review. That Court of Appeal confirmed the ruling ordering return in April 1998. In October 1998, the Supreme Court dismissed the mother’s appeal.
Starting in 1997, the father brought execution proceedings. The mother did not enter an appearance at the trials in 1997, and produced medical certificates as justification. The execution proceedings were then stayed from November 1997 to June 1998 owing to the first Supreme Court ruling. At the hearings in June 1998, the mother failed to appear and produced medical certificates. The proceedings were stayed once again owing to the second appeal to the Supreme Court. In December 1998, a court ordered the mother to deliver the child to the father within three weeks, failing which the case would be referred to a bailiff for enforcement. Execution did not occur as the mother had concealed the child. A renewed attempt at execution was made unsuccessfully in 2001/2002 but the mother refused to disclose where the child was located.
Several criminal cases were brought against the mother for abduction. They all resulted in nolle prosequi.
Several actions were taken by the Polish authorities, and by the Ministry of Justice in particular, to locate and return the child. The father himself took many steps in Poland and Canada, and retained private agencies to locate the child.
In September 2002, the father applied to the European Court of Human Rights (ECrtHR). He complained of breach of his right to respect to family life and his right to a fair trial owing to the inaction of the Polish authorities in the proceedings for execution of the return orders.
In April 2003, the daughter was reunited with her father. They resumed life in common in Canada. Pursuant to the parents’ divorce in 2007, parental authority was shared between the parents, with the father being awarded the right to determine the child’s habitual residence.