Stop child abductions

The principle of joint exercise of parental responsibility by both parents stems from the essence of parental responsibility. This principle is provided for in Article 97(2) of the Family and Guardianship Code (FGC), which states that the parents of a child decide on important matters together; if they cannot reach an agreement, the matter is resolved by a guardianship court. Only in matters of minor importance to the child can each parent make decisions by themselves consulting and obtaining the approval of the other parent. In their case law, the Polish courts have classified the travel of a child abroad, whether for permanent or temporary residence, and even for holidays, as important matters.

In light of Article 97(2) of the FGC, one parent may take the child abroad without the other parent’s consent only if:

a) the other parent was deprived of parental responsibility over the child on the basis of an order issued by a Polish court (Article 111 of the FGC);

b) the parental responsibility of the other parent has been suspended in an order issued by a Polish court (Article 110 of the FGC);

c) the other parent has limited parental responsibility over the child (Article 109 of the FGC). The court shall decide how to limit the exercise of parental responsibility by using such a measure as will best safeguard the interests of the child. In particular, limiting the exercise of parental responsibility may, for example, deprive the parent of the right of joint decision-making on important matters concerning the child or certain matters of this nature. If such a decision deprives the parent of the possibility of joint decision-making, for example concerning the child’s habitual residence, the parent will not be able to oppose a change of the child’s habitual residence in Poland to a place of habitual residence abroad.

d) The parents’ rights and obligations towards the child may be modified by a judgment concerning divorce (Article 58(1) and (1a) of the FGC), or marriage annulment (Article 51(1) and (1a) in conjunction with Article 21 of the FGC) and concerning separation (Article 58(1) and (1a) in conjunction with Article 613(1) of the FGC). This also applies to orders issued in paternity cases (Article 93(2) of the FGC), in cases of amendment of a judgment on parental responsibility and the manner of exercise thereof specified in a judgment on divorce, separation, or marriage annulment, or establishing the origin of the child (Article 106 of the FGC) and where parental responsibility is granted to one of the parents, where the parents do not live together (107(1) and (2) of the FGC). In particular, a court may, in such cases, grant parental responsibility to one parent, limiting that right of the other parent to certain obligations and powers in relation to the child. If the divorce court grants parental responsibility to one parent and limits the other parent’s parental responsibility, then while that judgment does not deprive the other parent of parental responsibility for the child, the other parent may only exercise that responsibility and fulfil the obligations to the extent granted by the court. If the court does not grant the other parent the power of joint decision-making on the place of residence of the child, then that place is essentially decided by the parent who has been granted parental responsibility.

e) the consent of the other parent is also not required if they are deprived of the right of joint decision-making concerning change of the child’s place of residence on the basis of a foreign court decision recognised in Poland.

The consent of the other parent is necessary in all cases not described in the previous paragraph. This applies in situations where the parent has full parental responsibility, or where, although that responsibility has been limited, the parent has not been deprived of the right of joint decision-making concerning the child’s place of residence. Polish case law goes even further in this respect. The Supreme Court explained in its order of 10 November 1971, file no. III CZP 69/71, that: 

A guardianship court’s permission is required for a minor to be taken to reside permanently in another country by one of the parents, if that parent has been granted parental responsibility in a divorce judgment, if the other parent has been granted supervision of the child’s upbringing and has not made a declaration of consent for the child to leave.

Therefore, if a court, for example in a divorce proceeding, has not granted the other parent the right of joint decision-making concerning the child’s habitual residence, the other parent may, in light of that decision, demand the return of the child if, for factual reasons, he or she is unable to exercise his or her right to contact with the child.

In an order of 6 March 1985, file no. III CRN 19/85, the Supreme Court ruled that:

As an important matter concerning a child, travel of a child abroad on holiday requires the consent of both parents exercising parental responsibility and, if no such consent is given, the decision issued by a guardianship court.

In this case, it is essential to apply to a guardianship court in Poland for substitute consent for the child to go abroad. Such consent may be requested by a parent who has not been deprived of parental responsibility or whose parental responsibility has not been suspended. The motion may be filed with the court by the applicant concerned; in such cases, Polish law does not provide for compulsory representation by a lawyer. The district court – the family and juvenile division, as the court of first instance – has subject-matter jurisdiction over such a motion, and the court in whose district the child is habitually resident or is currently has territorial jurisdiction.

It should be borne in mind that a short-term trip abroad of a child also requires the consent of the other parent.

In Poland, no forms are used to give permission for a child to go abroad (permanently or temporarily). Consent may therefore be given in any form. For reasons of proof, however, it would be advisable to obtain written consent in any proceedings for the return of a child based on the 1980 Hague Convention. The assistance of a Polish advocate, attorney-at-law or notary public may be useful in preparing such consent.

In this respect, Chapter III of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility applies. As a rule, such judgments are recognised and enforced without any further procedure being required. However, a motion for recognition or enforcement of the judgment may be submitted to a regional court. The regional court shall also be competent to examine the motion for a declaration of enforceability. In both cases, the motions must comply with the standards required for a pleading, i.e. state the precise nature of the request, and state the facts being the grounds for the request and whether the parties have sought mediation.

What kind of proceedings apply in such situations?

A motion for non-recognition of a judgment of a court of an EU Member State should be submitted to the regional court which would have territorial jurisdiction to examine the case decided by the judgment of a court of a foreign state or in whose district the locally competent district court is located, or, in the absence of such a basis, to the Regional Court in Warsaw. A decision issued by a regional court on recognition may be subject to a complaint, and a decision of an appeal court is subject to a cassation appeal. It is also possible to request the reopening of proceedings which have been concluded with a legally binding decision on recognition and to seek a ruling declaring a legally binding decision issued in this regard unlawful. The case is conducted in non-litigious proceedings.

The law applicable to matters of parental responsibility and access to a child is laid down in Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, drawn up at the Hague on 19 October 1996, or in bilateral agreements binding on Poland. When none of these instruments can be applied, the provisions of private international law apply. If the child’s habitual residence changes to residence in a country which is not a party to the above Convention, the law of that country shall specify – from the time of the change – the conditions for the application of measures taken in the country of the child’s former habitual residence.